JUDGMENT : Mrs. Tahilramani, J. 1. This appeal is directed by the appellant against the judgment and order dated 31.12.2009 passed by the learned Sessions Judge, Thane in Sessions Case No.273 of 2007. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of Indian Penal Code and sentenced him to R.I. for life and to pay a fine of Rs.1,000/-, i/d R.I. for six months. 2. The prosecution case briefly stated is as under: The appellant was married to Priya @ Pumpa. At the time of incident, they were residing in room No.14 in Prakash Ankush building. PW2 Mala was residing in room No.15 and PW1 Reena was residing opposite the room of the appellant and the deceased. The appellant and the deceased were both working in Akshay Bar & Restaurant at Mulund. The Appellant was addicted to liquor and he used to often assault his wife Priya under the influence of liquor. The incident took place on 23.12.2006 in the morning. The neighbours heard a quarrel going on between the appellant and his wife i.e., the deceased. The quarrel continued for some time. Thereafter, the sound of quarrel and shouting stopped. After about half an hour, the appellant was seen bringing his wife out from the room by lifting her in his arms. This was witnessed by PW1 Reena and PW2 Mala. The appellant first took his wife to Sai Hospital at Thane. There apparently Priya was refused admission and hence, the appellant went to his workplace in an ambulance with his wife to ask his employer which hospital he should take his wife. Then the appellant left in the very ambulance with his wife and took her to hospital. Priya expired on 24.12.2006. It is the prosecution case that during the course of quarrel, the appellant assaulted his wife Priya, with fist blows and thereafter, banged her head on the wall and caused her injuries which led to her death. FIR was lodged in this case by PW1 Reena. Thereafter, investigation commenced. The appellant came to be arrested. After completion of investigation, chargesheet came to be filed. 3. Charge came to be framed against the appellant under section 302 of Indian Penal Code. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. The appellant came to be arrested. After completion of investigation, chargesheet came to be filed. 3. Charge came to be framed against the appellant under section 302 of Indian Penal Code. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4. We have heard the learned Advocate for the Appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant during the course of quarrel assaulted his wife and caused her injuries which led to her death. 5. There is no eye witness in the present case and the case is based entirely on circumstantial evidence. PW1 Reena and PW2 Mala were the neighbours of the appellant and the deceased. The appellant and the deceased were residing in Room No.14. PW2 Mala was residing in room No.15 and PW1 Reena was residing opposite the room of the appellant and the deceased. On 23.12.2006, both PW1 Reena and PW2 Mala heard quarrel going on between the appellant and his wife. PW1 Reena heard deceased Priya shouting "Vishwajeetmujhe mat maro". Thereafter, the sound of quarrel stopped and after about half an hour, the appellant brought his wife out from his room by lifting her in his arms. The evidence of PW2 Mala is on similar lines as that of PW1 Reena. 6. That the appellant was assaulting his wife is borne out from the evidence of PW1 Reena who stated that she heard Priya shouting “Vishwajeet (appellant) do not beat me”. The prosecution case that the appellant assaulted his wife with fist blows and thereafter banged her head against the wall and caused her injuries is also borne out by the medical evidence. PW8 Dr.Pathak conducted the postmortem on the dead body of Priya. On external examination, he noticed the following injuries: i) Cresentric abrasions; a) one at the upper eye lid just below eye brows on right side. PW8 Dr.Pathak conducted the postmortem on the dead body of Priya. On external examination, he noticed the following injuries: i) Cresentric abrasions; a) one at the upper eye lid just below eye brows on right side. b) one on the right cheek bone 2.5 cm below lateral canthus of right side; 2.5 cm. in length c) one just below injury no.(6) ii) Cresentric abrasions over left cheek a) one 2 cm below left pinna b) one 5 cm below left lateral canthus iii) Bilateral black eye iv) Contusions, four in numbers, circular on posterio lateral aspect of left forearm and about 1.5 cm each, dark blue in colour v) Contusion over tip of left shoulder, brownish in colour about 3.5 cm in diameter. vi) Greenish contusion over dorsal aspect of left palm and posterio lateral aspect of left wrist. On internal examination, Dr.Pathak noticed injuries as under: i) Under scalp haematoma over right fronto parital area, 6 x 7 cm; about 20 c.c. Blood clots seen ii) subarachnoid haemorrhage seen over right fronto parietal area of size 5 cm x 3 cm; about 12 – 15 c.c. Blood clots iii) There was generalised congestion and edema of brain. iv) In thorax on internal examination, both the lungs were congested and there was oozing of frothy fluid on squeeze. According to Dr.Pathak, there was physical assault on the deceased by another person using hands of the assailant resulting into Cresentric abrasions which are caused due to nail marks. According to Dr.Pathak, injuries were caused by hard and blunt impact against hard and blunt surface and all the injuries were cumulatively sufficient to cause death. In the opinion of Dr.Pathak, the head injury itself individually was sufficient to cause death in the ordinary course of nature. Injuries on the head were possible by banging of head against wall or floor. In the Doctor's opinion, the cause of death of deceased was “Craniocerebral injury, due to blunt and hard impact (Unnatural)” and that death in the present case was non accidental and non suicidal. 7. The appellant has raised the defence that his wife Priya died on account of injuries sustained due to fall. However, this defence has been shot down by PW8 Dr.Pathak, who conducted the postmortem. It is noticed that Priya had 6 external injuries. 7. The appellant has raised the defence that his wife Priya died on account of injuries sustained due to fall. However, this defence has been shot down by PW8 Dr.Pathak, who conducted the postmortem. It is noticed that Priya had 6 external injuries. According to Dr.Pathak, all these injuries could not be caused by fall even if the person fell with force on hard and blunt object. 8. The evidence on record shows that the appellant and the deceased were in the house at the time of the incident. In such case, the accused has to explain how the deceased sustained injuries and died. In this connection, we may refer to Section 106 of the Evidence Act. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles which underlies Section 106 of the Evidence Act can be applied in cases where certain facts are especially within the knowledge of a person. In the case of State of Rajasthan Vs. Kashi Ram (2006)12 SCC 254 : AIR 2007 SC 144), the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain. 9. Ms.Ayubi submitted that even assuming that the appellant caused injuries to his wife which resulted in her death, yet, the act of the appellant would not fall under section 302 of the IPC but it would fall u/s 304 part II of the IPC. 9. Ms.Ayubi submitted that even assuming that the appellant caused injuries to his wife which resulted in her death, yet, the act of the appellant would not fall under section 302 of the IPC but it would fall u/s 304 part II of the IPC. She submitted that the appellant had no intention to cause death of his wife Priya. In support of this contention, she placed reliance on the evidence of PW4 Sanjay, who has stated that on 23.12.2006 at about 2pm, the appellant came to Akshay Bar & Restaurant in an ambulance carrying his wife. The appellant had brought his wife in ambulance to the Restaurant from Sai hospital, Kisan Nagar, Thane. The appellant wanted to enquire with his employer as to which hospital his wife should be taken for treatment. This witness was working in the same restaurant and bar where the appellant and his wife Priya were working. Hence, the appellant had gone to his workplace to get advice where he should take his wife for treatment. The evidence of PW1 Reena and PW2 Mala shows that soon after the sound of quarrel stopped, within half an hour, the appellant brought his wife out of the room by lifting her in his arms. The evidence on record further shows that the appellant took his wife first to Sai hospital at Thane, where his wife was apparently refused admission. Hence, he took his wife in an ambulance to his workplace to enquire which hospital he should take his wife for treatment. Ms.Ayubi submitted that this conduct of the appellant of taking his wife in an ambulance to the hospital shows that the appellant had no intention to cause the death of his wife. Instead, he wanted to save her life. Ms.Ayubi further submitted that the incident had occurred during a sudden quarrel and the fact that the appellant soon thereafter took his wife to the hospital shows that he had no intention to kill his wife Priya. 10. No doubt, the evidence on record points out to the fact that it was the appellant who caused injuries to his wife Priya. However, the pivotal question which arises in the facts and circumstances of this case, is what is the nature of offence proved against the appellant. 10. No doubt, the evidence on record points out to the fact that it was the appellant who caused injuries to his wife Priya. However, the pivotal question which arises in the facts and circumstances of this case, is what is the nature of offence proved against the appellant. It is an admitted fact that the appellant had a quarrel with his wife which has been stated by PW1 Reena as well as PW2 Mala. During the course of this quarrel, he caused injuries to his wife by assaulting her. However, soon thereafter, the appellant carried his wife in his arms and took her to the hospital to treat her. This conduct cannot be seen divorced from the totality of the circumstances. Very probably, the appellant would not have anticipated that the act done by him would have such consequences that his wife might die. If he had ever intended his wife to die, he would not have immediately taken her to the hospital in an effort to save her life. 11. Moreover, the evidence of PW1 Reena and the other evidence on record shows that a quarrel was going on between the appellant and the deceased. Thereafter, the noise of quarrel stopped and the appellant came out carrying his wife in his arms. Ms.Ayubi relied on the evidence of PW1 Reena and PW2 Mala to show that quarrel was going on between the appellant and his wife. Ms.Ayubi pointed out that on external examination, no serious injuries were found on the body of Priya. She further submitted that looking to the external injuries sustained by Priya, it cannot be said that the appellant had any intention to cause the death of his wife. She submitted that if the appellant had intended to cause the death of his wife, he would have continued to assault her and would not have rushed her to the hospital in an ambulance. Ms.Ayubi further submitted that the assault was not premeditated or preplanned but it happened on the spur of the moment in a fit of anger. She submitted that in the light of the evidence on record, the case would be covered by Exception 4 to Section 300 of the Indian Penal Code i.e., case of sudden quarrel, and looking to the injuries sustained by Priya, the case would be covered by Section 304 part II of the IPC. 12. She submitted that in the light of the evidence on record, the case would be covered by Exception 4 to Section 300 of the Indian Penal Code i.e., case of sudden quarrel, and looking to the injuries sustained by Priya, the case would be covered by Section 304 part II of the IPC. 12. To bring a case within Exception 4 to Section 300 of IPC, all the ingredients mentioned in it must be found. It is to be noted that the word 'fight' occurring in Exception 4 to Section 300 of IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for passion to cool down. In this case, the evidence shows that both the parties had worked themselves into a fury on account of verbal altercation going on between them. However, 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 any undue advantage or acted in cruel or unusual manner. Looking to the external injuries sustained by Priya, it shows that the appellant did not take undue advantage or act in a cruel and unusual manner. Looking to the external and internal injuries sustained by Priya, it cannot be said that the appellant had the intention to cause death of Priya. It is also to be borne in mind that immediately after the incident, the appellant took his wife to the hospital in an ambulance. Looking at all these facts, we are of the considered opinion that the case would fall u/s 304 part II of the Indian Penal Code. 13. Considering the evidence on record, we are of the view that Exception 4 to Section 300 applies to the facts of the case and the appropriate conviction would be u/s 304 part II of the Indian Penal Code. Hence, the conviction u/s 302 of the Indian Penal Code is set aside, instead, the appellant is convicted u/s 304 part II of the Indian Penal Code. In our view, custodial sentence of 7 years R.I. and fine of Rs.1,000/-, i/d S.I. For one month would meet the ends of justice. 14. Appeal is allowed to the aforesaid extent 15. Hence, the conviction u/s 302 of the Indian Penal Code is set aside, instead, the appellant is convicted u/s 304 part II of the Indian Penal Code. In our view, custodial sentence of 7 years R.I. and fine of Rs.1,000/-, i/d S.I. For one month would meet the ends of justice. 14. Appeal is allowed to the aforesaid extent 15. Office to communicate this order to the Appellant and the Superintendent of jail where the appellant is lodged i.e., Nashik Road Central Prison. 16. At this stage, we must record our appreciation for the able assistance rendered by the learned advocate Ms.Ayubi, who has very ably conducted the matter. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee at Rs.2,500/-.