JUDGMENT 1. - Instant criminal appeal has been filed under Section 374(2) Cr.P.C., against the judgment dated 2.9.2005 passed by Addl. Sessions Judge (Fast Track) No. 1, Bikaner in Sessions Case No. 60/2004 arising out from F.I.R. No. 216/2004, P.S. Sadar, Bikaner, by which the learned trial Judge convicted the accused-appellant for commission of offence under Section 302 I.P.C. and passed sentence of life imprisonment with a fine of Rs. 1,000/- and in default of payment of fine, to further undergo three moths simple imprisonment. 2. As per facts of the case, a written report Ex.P-1 was submitted by the complaint Giriraj Prasad Sen on 30.6.2004 at 6 A.M. at Police Station Sadar Bikaner stating therein that is cousin Mukesh Kumar Sen is residing in Government quarter of judicial Department near P.B.M. Hospital, Bikaner. As per the complainant Mukesh was employee of the Court of A.C.J.M. No. 4 and Nityanand, Keshav, Bhojraj, Ram Singh and Shankar are his neighbours and they are also Government employees. The complainant himself was living in a Government quarters of G.A.D. Pawanpur and on 30.6.2004, an information was received by him that Mukesh Kumar Sen has been murdered and upon the said information, he went to the spot and saw that body of Mukesh is lying on the roof of the Government quarters smeared with blood. 3. Upon inquiry, the complainant was informed by Keshav, Nityanand and Mithoo Das that due to the summer season they were sleeping on the roof and at about 3-3.30 A.M. they were awakened by the sound of some hit and when they woke up they saw accused Koja Ram running with a iron pipe in his hand after causing injuries upon the head of deceased Mukesh. As per the complainant, after receiving the above information a written complaint is filed by him at the Police Station Sadar Bikaner against the accused-appellant, upon which the police registered case under Section 302 I.P.C. bearing F.I.R. No. 216/2004; and after usual investigation, filed challan against the accused-appellant for offence under Section 302 I.P.C. 4. After filing challan in the Court of A.C.J.M. No. 2, Bikaner by the Investigating Officer of Police Station Sadar Bikaner the case was committed to the Court of Sessions from where the case was transferred to the Court of Addl. Sessions Judge (Fast Track) No. 1, Bikaner. 5. Learned Addl. After filing challan in the Court of A.C.J.M. No. 2, Bikaner by the Investigating Officer of Police Station Sadar Bikaner the case was committed to the Court of Sessions from where the case was transferred to the Court of Addl. Sessions Judge (Fast Track) No. 1, Bikaner. 5. Learned Addl. Sessions Judge (Fast Track) No. 1, Bikaner commenced trial after framing charge against the accused-appellant in which the appellant denied the allegations levelled against him. 6. In support of the prosecution case, statements of 11 prosecution witnesses were recorded including statements of 3 eye-witnesses PW-2 Keshavraj, PW-3 Nityanand and PW-9 Mithoodas. Statement of PW-1 Giriraj Prasad was recorded in support of the F.I.R. and Dr. O.P. Saini, PW-4 was examined to prove the report of the postmortem conducted by him. In support of the prosecution 18 documents were exhibited. Thereafter, statement of the accused-appellant was recorded under Section 313 Cr.P.C. in which the accused-appellant said that deceased Mukesh Kumar was keeping a bad eye upon his wife and he wanted to create illicit relationship with his wife but he did not murder him and he has been falsely implicated. 7. After recording statement of the accused-appellant, statement of DW-1 Dharmu, wife of the accused-appellant, was recorded in defence and 4 documents were exhibited. 8. After recording evidence of both the sides, final arguments were heard and vide judgment impugned dated 2.9.2005 learned trial Court convicted the accused-appellant for offence under Section 302, I.P.C. and passed sentence of life imprisonment. 9. In this appeal filed by the accused-appellant to challenge the judgment impugned, it is argued by learned counsel for the appellant that the impugned judgment is contrary to the evidence available on record because in the statements of so called eye-witnesses there is material contradiction and irregularities, therefore, statement of those eye-witnesses PW-2 Keshavraj, PW-3 Nityanand and PW-9 Mithoodas are required to be discredited. According to the appellant's counsel, upon perusal of the statements of all these eye-witnesses it cannot be said that these witnesses are eye-witnesses it cannot be said that these witnesses are eye-witnesses because they did not see the occurrence, therefore, their evidence is not reliable but the trial Court relied upon the testimony of these witnesses and wrongly convicted the appellant for offence under Section 302, I.P.C. 10. Learned counsel for the appellant submits that no cogent evidence is there on the record to prove the prosecution case beyond reasonable doubt, therefore, the sentence awarded to the accused-appellant deserves to be set aside. Learned counsel for the appellant alternatively argued that as per evidence led by the prosecution it cannot be said that offence under Section 302 I.P.C. is made out because iron pipe was recovered form the accused-appellant which cannot be treated to a deadly weapon and injuries said to be found upon the body of the deceased clearly show that there was no intention to kill deceased Mukesh, therefore, even if the statements of the prosecution witnesses is accepted, then, too it is not a case in which the accused-appellant can be convicted for offence 302 I.P.C. 11. While inviting attention of the Court towards the postmortem report Ex.5 dated 30.6.2004, it is submitted that as per the said postmortem report 3 injuries upon the body of the deceased were found out of which 2 injuries were lacerated wounds and one was bruise and all these injuries were upon the right side of the head and ear of the deceased and, in the statement of PW-4 Dr. O.P. Saini he expressed the opinion that all the three injuries can be sustained by a single blow; meaning thereby, the argument of learned counsel for the appellant is that even if the evidence of the eye-witnesses and doctor is accepted, then also, there is statement of appellant's wife DW-1 Dharmu, in which it is stated by her that one year back an incident took place when the deceased entered in her house and tried to outrage her modesty, at that lime, she inflicted a blow upon him and he went away; meaning thereby, as per the argument of learned counsel for the appellant, probably the occurrence took place due to the reason that the deceased was keeping bad eye upon the wife of the accused-appellant and due to the said reason, the relations of the appellant and deceased were not cordial. Therefore, it is submitted that even if the prosecution evidence is taken into account for the purpose of holding the accused-appellant guilty for offence under Section 302 I.P.C. is made out and the case cannot travel beyond the offence under Section 304 Pt. Therefore, it is submitted that even if the prosecution evidence is taken into account for the purpose of holding the accused-appellant guilty for offence under Section 302 I.P.C. is made out and the case cannot travel beyond the offence under Section 304 Pt. II I.P.C. Therefore, it is prayed that the judgment of the learned trial Court convicting the accused-appellant for offence under Section 302 I.P.C. may be altered to offence under Section 304 Pt. II I.P.C. 12. In support of the above contention, learned counsel for the appellant invited our attention towards Lachman Singli v. State of Haryana, (2006) 10 SCC 524 and Harendra Nath Borah v. State of Assam, AIR 2007 SCW 4631 and submits that as per judgment of the Hon'ble Supreme Court there is clear difference in murder and culpable homicide not amounting to murder, therefore, upon the above principle laid down by the Hon'ble Supreme Court the finding given by the trial Court holding the appellant guilty for offence under Section 302, I.P.C. may be altered to offence under Section 304, Pt. II I.P.C. and the accused appellant who is behind bars since 30.6.2004 may be released while altering the punishment from life imprisonment to a term already undergone by the accused-appellant because the appellant has served out sentence for almost nine years. 13. Per contra, learned Public Prosecutor vehemently argued that there is sufficient evidence led by the prosecution to prove the case for offence under Section 302 I.P.C. by leading cogent evidence of the eye-witnesses and so also, recovery of the weapon of offence, iron pipe, recovered at the instance of the accused-appellant which was stained with human blood, therefore, the testimony of the defence witness DW-1 Dharmu, wife of the accused-appellant deserves to be rejected because it is concocted. Therefore, it is prayed that the finding given by the trial Court for offence under Section 302, I.P.C. does not suffer from any illegality; more so, the finding of the learned trial Court is based upon sound appreciation of evidence, therefore, this appeal may be dismissed. 14. After hearing learned counsel for the parties, we have examined the entire evidence. It is admitted position of the case that in the argument advanced by learned counsel for the accused-appellant it is argued that offence under Section 302, I.P.C. is not made out. 14. After hearing learned counsel for the parties, we have examined the entire evidence. It is admitted position of the case that in the argument advanced by learned counsel for the accused-appellant it is argued that offence under Section 302, I.P.C. is not made out. Therefore, we have examined the evidence from the angle whether finding given by the trial Court for holding the appellant guilty of committing offence under Section 302 I.P.C. is based upon sound appreciation of evidence which is on record. 15. Admittedly, as per the prosecution case the weapon which is said to be used is iron pipe. Out of the three eye-witnesses PW-2 Keshavraj, PW-3 Nityanand and PW-9 Mithoodas, Keshavraj and Nityanand staled in their statements that they woke up when they heard Mithoodas shout loudly and at that time, they did not see the actual occurrence but in front of them, accused-appellant Koja Ram was seen jumping down from the roof. In the statement of PW-9 Mithoodas, he said that at about 3-3.30 A.M. he heard the harsh sound of a blow like some body was washing clothes, at that time, he woke up and saw accused-appellant inflicting injuries upon the head of the deceased and after inflicting the injuries, the accused-appellant ran away form the site of the occurrence; meaning thereby the finding given by the trial Court is based upon the testimony of PW-9 Mithoodas. 16. In the cross-examination of PW-9 Mithoodas, a question was put to him whether wife of Kojaram was also residing in the Government quarter or not, he said in reply that on the day of the occurrence she was not residing in the quarter but, again said some times she is residing there. In the cross-examination of PW-9 Mithoodas, he admits that in his statement recorded by the police under Section 161 Cr.P.C. it is nowhere stated that he saw the accused-appellant inflict injuries upon the body of deceased Mukesh. 17. In the cross-examination of PW-9 Mithoodas, he admits that in his statement recorded by the police under Section 161 Cr.P.C. it is nowhere stated that he saw the accused-appellant inflict injuries upon the body of deceased Mukesh. 17. In our considered opinion, it is not safe to maintain the conviction of the appellant recorded by the trial Court holding the accused-appellant guilty for committing offence under Section 302 I.P.C. Our finding is supported by the fact that out of the three eye-witnesses, PW-2 Keshavraj and PW-3 Nityanand cannot be termed as eye-witnesses but the trial Court relied upon the statement of PW-9 Mithoodas who also stated in his cross-examination that in his statement recorded by the police under Section 161 Cr.P.C. it is nowhere stated by him that he saw the incident take place but the fact remains that prosecution has further proved its case with recovery of the weapon of offence viz., iron pipe stained with human blood. 18. Further, statement of DW-1 Dharmu, wife of accused-appellant is on record which cannot be lost sight of in which she categorically staled that deceased was keeping a bad eye upon her and in an earlier incident, he attempted to create illicit relation with her. Therefore, upon careful consideration of the over-all facts and circumstances of the case, we are of the opinion that the incident took place due to fostering deep rage by the accused-appellant against the deceased because the deceased was keeping bad eye upon his wife and as per statement of DW-1 Dharmu, in an earlier incident the deceased in fact tried to outrage her modesty. 19. In the case of Lachman Singh v. State of Haryana (supra) following adjudication has been made by their Lordships of the Supreme Court in para 11 of the judgment which reads as under; "The Fourth Exception of Section 300 I.P.C. covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 I.P.C. is not defined in the I.P.C. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is no possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means unfair advantage'." 20. Similarly, in the judgment reported in AIR 2007 SCW 4631 , Harendra Nath Borah v. State of Assam (supra), following adjudication is made by Hon'ble Supreme Court in paras 8 and 2.0 of the judgment which reads as under: "8. 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. The following comparative table will be helpful in appreciating the points of distinction between the two offences. 20. When the factual background of the case is analysed on the touchstone of principles set out above, the inevitable conclusion is that the case at hand is not covered under Section 302 I.P.C. and on the other hand the case is covered under Section 304 Part I I.P.C. The conviction is accordingly altered. Custodial sentence of 10 years would meet the ends of justice." 21. Custodial sentence of 10 years would meet the ends of justice." 21. After perusing the aforesaid judgments of the Hon'ble Apex Court and upon re-appreciation and re-examination of the entire evidence on record, it emerges from the evidence of the instant case that it is not a case in which the accused-appellant can be held guilty for committing offence under Section 302 I.P.C. However, the appellant-accused is liable to be held guilty for commission of offence of culpable homicide not amount to murder for the death of deceased Mukesh Kumar Sen. 22. Therefore, in view of the above discussion, the finding given by the trial Court with regard to holding the accused-appellant guilty for commission of offence under Section 302 I.P.C. is not sustainable in the eye of law. Accordingly, we hold that the accused-appellant is guilty of committing-offence under Section 304 Pt.-I, I.P.C. and not offence under Section 302, I.P.C. In view of the above factual background and after judging the entire evidence of the case on the touchstone of the principles enunciated by the Hon'ble Supreme Court, this criminal appeal is partly allowed and conviction of the accused-appellant for offence under Section 302 I.P.C., is set aside and the accused-appellant is held guilty for committing offence under Section 304 Pt. I I.P.C. 23. Therefore, the sentence awarded to the accused-appellant by the trial Court of life imprisonment is hereby altered to the term already undergone by him because the accused-appellant is in judicial custody since 30.6.2004 and he has served out the sentence of imprisonment for almost nine years. Let the accused-appellant Koja Ram be set at liberty forthwith.Appeal partly allowed. *******