Judgment :- (1.) THE appellant herein was the sole accused in Sessions trial No. XI (January) 2002, which was decided by the learned Additional sessions Judge, 3rd Court, Howrah. The appellant was tried for the offences punishable under Sections 498a and 302 of I. P. C. The learned Trial Judge recorded the finding of guilt under the above mentioned sections and convicted and sentenced him to suffer rigorous imprisonment for 3 years and also to pay fine of Rs. 5,000/-, in default of fine further six months simple imprisonment and rigorous imprisonment for life and also to pay fine of Rs. 10,000/-in default of fine further one year simple imprisonment for the charges respectively. The substantive sentences, however, were directed to run concurrently. (2.) PROSECUTION version as unfolded during trial is essentially as follows : first information report was lodged by Ashoke Chakraborty (P. W. 1) on 13. 10. 98 at 22. 35 hours at Liluah P. S. According to F. I. R. , the informant is the younger brother of the deceased Anima Hazra. The deceased Anima Hazra was married to the appellant long before the incident which took place on 13. 10. 1998 in the afternoon. After marriage, the deceased came to reside at her matrimonial home situated at Jagadishpur within the limits of Liluah P. S. She was residing in the said house with her husband, sons and daughter. (3.) ACCORDING to the prosecution qase, the appellant used to resort to physical and mental torture upon the deceased after the solemnisation of his marriage with the deceased. Prior to the incident the appellant had also beaten the deceased on several occasions under the influence of liquor. (4.) ON 13. 10. 98 at about 1. 00 P. M. , the appellant returned house in drunken condition and started a quarrel with the deceased. During the course of quarrel, the appellant began to assault the deceased for which the deceased asked her daughter Santana Hazra (P. W. 4) to call his son Kamal Hazra (P. W. 3) from his place of service. After the departure of Santana from the house, the appellant struck hammer (Haturi) blow on the forehead and back of the head of the deceased and in consequence thereof the deceased succumbed to injuries at her marital house. The appellant fled away after the incident. After the departure of Santana from the house, the appellant struck hammer (Haturi) blow on the forehead and back of the head of the deceased and in consequence thereof the deceased succumbed to injuries at her marital house. The appellant fled away after the incident. (5.) ON the basis of the aforesaid first information report, Liluah P. S. case No. 115 dated 13. 10. 98 was registered under Section 498a/302 of i. P. C. against the appellant. An inquest report was prepared by S. I. Sri Shyamal chakraborty (P. W. 18) and the body was sent for post-mortem examination. Dr. A. R. Saha (P. W. 17) conducted the post-mortem on the person of Anima on 14. 10. 98 and he found the following injuries. 1) Lacerated injury measuring 21/2" x 1/2" x Mussle Deep over the right of her forehead extending to right eye-brow with crack over the right side of frontal bone; 2) Lacerated wound 3" x 11/2" x Mussle Deep over occipital region with crack over occipital bone; 3) Lacerated wound 1/2" x 1/2": Mussle Deep over occipital region. The death according to Doctor Saha occurred as a result of the above ante-mortem injuries. Investigation of the case was conducted by S. I. Shyamal Chakraborty (P. W. 18) and S. I. C. Karmaker (P. W. 19) and after investigation, charge-sheet was filed against the accused appellant under Section 498a/302 of I. P. C. The case was committed to the Sessions Court. The trial Court framed the charges against the appellant for the offences punishable under Sections 498a/302 of I. P. C. The appellant denied the charges and claimed trial. Prosecution in order to establish the case against the appellant examined 19 witnesses including the informant as well as sons and daughter of the deceased. In course of examination of P. Ws; the prosecution also produced documentary evidence i. e. F. I. R. , Inquest report, three seizure lists, postmortem report, sketch map, chemical examiners report of Forensic Science Laboratory, Haturi and clothes which were marked as Exhibit 1 to 8 and Mat. Exhibit I and II respectively. (6.) THE appellant did not adduce any evidence in support of his defence. The defence case is denial of the prosecution story as brought about in evidence. Exhibit I and II respectively. (6.) THE appellant did not adduce any evidence in support of his defence. The defence case is denial of the prosecution story as brought about in evidence. (7.) THE learned Trial Judge after considering the oral and documentary evidence as well as submissions made on behalf of the parties found the appellant guilty under Sections 498a and 302 of I. P. C. and accordingly, convicted and passed sentences upon him as indicated earlier. (8.) BEING aggrieved by, and dissatisfied with, the said order of conviction and sentence, the appellant has come up with the present appeal. (9.) ALL that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence. (10.) NO argument was advanced by the learned Counsel appearing for the appellant before this Court challenging the order of conviction and sentence awarded by the learned Trial Court for the offence punishable under Section 498a of I. P. C. learned Counsel appearing for the appellant confined his argument onty towards the conviction and sentence awarded by the learned trial Court for the offence punishable under Section 302 of I. P. C. (11.) THE incident and the involvement of the appellant in the commission of the crime is not in dispute and there was adequate evidence coming through the witnesses examined in this case coupled with the surrounding circumstance that the deceased was last seen with the appellant. We do not think it necessary to deal with that aspect in more details as there is no argument advanced before us on that aspect. The material witnesses of the prosecution are the sons, daughter and brother-in-law of the appellant and they have stated unambiguously in their evidence that the appellant used to resort to physical as well as mental torture upon the deceased after solemnisation of his marriage with the deceased; that prior to the incident the appellant had beaten the deceased on several occasions under the influence of liquor; that on the date of incident, the appellant in drunken condition came to the house in the afternoon and started a quarrel with the deceased and in course of quarrel he struck hathuri blow on the forehead and back side of the head of the deceased and as a result of which she succumbed to injuries. We do not find any material to disbelieve the said witnesses touching the incident and involvement of the appellant in the commission of offence. We find the medical evidence on record and the ocular evidence of the sons and daughter of the appellant were absolutely in conformity with each other which clearly establishes the prosecution case. The witnesses were natural and disinterested witnesses and there in no reason whatever not to have acted upon their testimony. (12.) THE only stand taken by the learned Counsel for the appellant before this Court was that the appellant was in a state of drunkenness during course of quarrel and did not know the consequences what he did and, therefore, can not be convicted for the offence punishable under Section 302 of I. P. C. It was contended that at the most the appellant could be convicted and sentenced under Section 304 Part I of I. P. C. instead of Section 302 of I. P. C. This is the only contention urged before us. The Judgement of the Honble Apex Court in the cases of Surinder Kumar v. Union Territory, Chandigarh reported in (1989)2 supreme Court Cases 217; Arvind Kumar v. State of Uttar Pradesh reported in 1988 Supreme Court Cases (Cr) 132 and Ravi Kumar v. State of Punjab reported in (2005)9 Supreme Court Cases 315 : (2005)1 C Cr LR (SC) 315 were cited by the learned Counsel appearing for the appellant. (13.) THE learned Counsel for the State was fair enough to concede the principles enunciated in the cases relied upon by the learned Counsel appearing for the appellant. (14.) THE crucial question is as to which was the appropriate provision to be applied in the present case. (15.) IN the scheme of I. P. C. culpable homicide is the genus and murder its specie. All murder is culpable homicide but not vice-versa. Speaking generally, culpable homicide sans special characteristics of murder is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the I. P. C. practically recognizes three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide, which is defined in Section 300 as murder. The second may be termed as culpable homicide of the second degree. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide, which is defined in Section 300 as murder. The second may be termed as culpable homicide of the second degree. This is punishable under the first part of Section 304. Then, there is culpable homicide of the third degree. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. (16.) THE academic distinction between murder and culpable homicide not amounting to murder has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. Exception 4 to Section 300 reads as under : (17.) EXCEPTION 4-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault. (18.) TO invoke this exception four requirements must be satisfied, namely, (i) it was sudden fight; ii) there was no premeditation; iii) the act was done in a heat of passion; and iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. (19.) THE above position was highlighted by the Honble Apex Court in the cases of Surinder Kumar v. Union Territory, Chandigarh, (supra); Arvind kumar v. State of Uttar Pradesh (supra) and Ravi Kumar v. State of Punjab, (supra). (20.) IN the present case, there is evidence on record to show that the appellant was under the influence of liquor and the assault was given in the course of the quarrel without any premeditation. We may refer to the judgment in the case of Basdev v. State of Pepsu reported in AIR 1956 SC 488 therein. Their Lordships held that if the accused was beside his mind altogether, for the time being, he could not be fixed with the requisite intention. Their Lordships quoted with approval the following passage from the judgment of Lord Coleridge. "in the first place, every one is presumed to know the consequences of his acts. If he be insane, that knowledge is not presumed. Insanity is not pleaded here, but where it is part of the essence of a crime that a motive, a particular motive, shall exist in the mind of the man who does the act, the law declares this - that if the mind at that time is so obscured by drink, if the reason is dethroned and the man is incapable therefore of forming that intent, it justifies the reduction of the charge from murder to manslaughter. " (21.) THERE is evidence on the record to bring the case within the aforesaid exception. " (21.) THERE is evidence on the record to bring the case within the aforesaid exception. The material on record in our opinion is insufficient to warrant an inference that the appellant had formulated a deliberate intent to commit an offence, punishable under Section 302 of I. P. C. (22.) WHEN the background facts and special feature of the instant case are considered on the touchstone of the legal principle as set up above, we feel that proper section under which the appellant should have been convicted was under Section 304 Part I of I. P. C. and not under Section 302 of I. P. C. (23.) AT the same time we further hold that the order of conviction of the appellant under Section 498a of I. P. C. having been well founded, we are not inclined to interfere with the same. (24.) THEREFORE, for the reasons recorded above, we allow the appeal in part by converting the conviction from Section 302 of I. P. C. to Section 304 part I of I. P. C. and sentenced the appellant to undergo rigorous imprisonment for ten years and also to pay fine of Rs. 5,000/-, in default of fine further six months simple imprisonment. (25.) WE are not inclined to interfere with the sentence imposed upon the appellant by the learned Trial Court for the offence punishable under Section 498a of I. P. C. and accordingly we confirm the sentence imposed upon the appellant for the offence punishable under Section 498a of I. P. C. The substantive sentences for the offences punishable under Sections 498a/304 part I shall run concurrently. The sentence of imprisonment passed upon the appellant in default of payment of fine for the offences punishable under Section 498a and 304 Part I of I. P. C. shall run consecutively. (26.) THE appellant shall get the benefit of set off, out of the period of imprisonment already undergone. (27.) THE appellant is on bail. His bail bond shah stand cancelled. Through his Counsel, he is directed to surrender before the learned Trial Court within fortnight. (28.) LEARNED Trial Court is directed to remand the appellant to jail for serving out the remainder part of his sentence by issuing of necessary revised jail warrant as required by the Rules. (27.) THE appellant is on bail. His bail bond shah stand cancelled. Through his Counsel, he is directed to surrender before the learned Trial Court within fortnight. (28.) LEARNED Trial Court is directed to remand the appellant to jail for serving out the remainder part of his sentence by issuing of necessary revised jail warrant as required by the Rules. (29.) ON failure to comply with the direction as aforesaid, the learned trial Court shall take appropriate legal action against the appellant and his sureties, under intimation to this Court.