ORAL JUDGMENT (PER SMT. V.K. TAHILRAMANI, J.): 1. The appellant-original accused has preferred this appeal against the judgment and order dated 30th January 2012 passed by the learned 1st Ad-Hoc Additional Sessions Judge, Solapur, in Sessions Case No. 154 of 2010. By the said judgment and order, the learned Additional Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to R.I. for life and fine of Rs.1000/-, in default R.I. for 3 months. 2. The prosecution case briefly stated, is as under: (i) The appellant was married to Laxmi (deceased) in the year 2000. They had two children. The appellant started consuming liquor and used to quarrel with Laxmi. Hence, Laxmi started residing in the house of her parents. PW-1 Babasaheb was the brother of Laxmi. The appellant started proceedings for divorce against Laxmi. The appellant then married Sonali (PW-7). Thereafter, the matter was compromised between deceased Laxmi and the appellant. Hence Laxmi came to the house of the appellant to reside with him about two months prior to the incident. (ii) The father of the appellant was serving in PWD at Solapur. He was supplying water, hence, he is having an iron key to supply water. He used to bring the said key to his house every day. The key was made of iron and measured about 2 ft. and 3 inch in length. This is the weapon of assault. The incident occurred on 20.2.2010. On that day, at about 9.30 p.m., the appellant returned home. At that time Laxmi was watching TV and the volume of the TV was very high. The appellant enquired with Laxmi, why she has raised the volume so high. Then quarrel started between the appellant and Laxmi. This was noticed by PW-4 Kamlabai, the mother of the appellant. During the course of quarrel, the appellant assaulted Laxmi with the iron-key on her head. The incident was also witnessed by PW-7 Sonali, the second wife of the appellant. PW-4 Kamlabai and PW-7 Sonali tried to pacify the quarrel, but in vain. Then Laxmi was taken to the hospital. PW-1 Babasaheb, the brother of Laxmi, was informed by the appellant at about 10 p.m. that he assaulted Laxmi with an iron key and she is admitted in the hospital and they should immediately come to the hospital. Therefore, PW-1 Babasaheb and others went to the hospital. They found Laxmi was unconscious. Then Laxmi was taken to the hospital. PW-1 Babasaheb, the brother of Laxmi, was informed by the appellant at about 10 p.m. that he assaulted Laxmi with an iron key and she is admitted in the hospital and they should immediately come to the hospital. Therefore, PW-1 Babasaheb and others went to the hospital. They found Laxmi was unconscious. She had sustained injuries. Laxmi expired on 21.2.2010 at about 10 p.m. Meanwhile Babasaheb lodged FIR Exhibit 15. Thereafter, investigation commenced. After Laxmi expired, her dead body was sent for postmortem. PW-11 Dr. Kamale performed postmortem on the dead body of Laxmi. He found that Laxmi had died due to head injury. After completion of investigation, chargesheet came to be filed. 3. Charge came to be framed against the appellant under Section 302 and 494 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant was 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 Mr. Arfan Sait, learned Advocate for the appellant and Smt. V.R. Bhonsale, learned APP for the respondent-State. We have carefully considered their arguments, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the matter, we are of the opinion that the appellant assaulted his wife Laxmi with an iron key, due to which her death was caused. 5. The conviction of the appellant is mainly based on the evidence of two eye-witnesses and on the extra judicial confession made by the appellant. The two eye-witnesses in the present case are PW-4 Kamlabai, the mother of the appellant, and PW-7 Sonali, the second wife of the appellant. In addition to the evidence of these two eye-witnesses, the prosecution is also relying on extra judicial confession made by the appellant to PW-1 Babasaheb and PW-2 Subhash. 6. PW-4 Kamlabai has stated that on the day of incident, the appellant had gone to bring masur-dal. She had also gone out of the house for returning the money which she had borrowed from one person. When she returned home, she noticed that quarrel was going on between the appellant and his wife Laxmi. 6. PW-4 Kamlabai has stated that on the day of incident, the appellant had gone to bring masur-dal. She had also gone out of the house for returning the money which she had borrowed from one person. When she returned home, she noticed that quarrel was going on between the appellant and his wife Laxmi. The appellant assaulted Laxmi with an iron key on her head. PW-4 Kamlabai and PW-7 Sonali tried to pacify the quarrel, but in vain. Thus, the evidence of PW-4 Kamlabai shows that quarrel took place between the appellant and his wife Laxmi, and during the course of the quarrel, the appellant had assaulted Laxmi with an iron key which was in the house. This iron key was made of iron and was 2ft and 3 inch in length, as seen from Exhibit 46. The evidence of PW-7 Sonali, the second wife of the appellant is on similar lines as the evidence of Kamlabai. 7. Besides the evidence of two eye-witnesses i.e. PW-4 Kamlabai and PW-7 Sonali, the prosecution has also relied upon the circumstance of extra judicial confession made by the appellant to PW-1 Babasaheb and PW-2 Subhash. PW-1 Babasaheb was the brother of deceased Laxmi. Babasaheb has stated that on 20.2.2010 at about 10 p.m., the appellant called him on the telephone of his neighbour and the appellant told Babasaheb that he has assaulted Laxmi with an iron-key. The appellant further stated that Laxmi was admitted in the hospital and they should come immediately to the Hospital. PW-2 Subhash, the neighbour of the appellant, has also deposed about the extra judicial confession made by the appellant to him. 8. The prosecution case that the appellant assaulted Laxmi with an iron key is further supported by the medical evidence. PW-1 Dr. Kamale performed postmortem on the dead body of Laxmi. He found contusion and CLW on the head and contusion over left and right side of chest. He found fracture of mandible and fracture to the skull. According to him Laxmi died due to head injuries and the injuries were sufficient to cause death in ordinary course of nature. Dr. Kamale further opined that injuries are possible by iron-key. This further corroborates the evidence of two eyewitnesses namely PW-4 Kamlabai and PW-7 Sonali who have stated that the appellant assaulted deceased Laxmi with iron key. 9. Mr. According to him Laxmi died due to head injuries and the injuries were sufficient to cause death in ordinary course of nature. Dr. Kamale further opined that injuries are possible by iron-key. This further corroborates the evidence of two eyewitnesses namely PW-4 Kamlabai and PW-7 Sonali who have stated that the appellant assaulted deceased Laxmi with iron key. 9. Mr. Arfan Sait, the learned Counsel for the appellant submitted that even if it is accepted that, the act of the appellant of assaulting Laxmi with an iron key resulted in her death, the case would not fall under Section 302 of IPC, but it would fall under Section 304 Part II or at the most Section 304 Part I of IPC. He has pointed out that the evidence on record shows that quarrel was going between the appellant and his wife Laxmi which has been deposed by PW-4 Kamlabai. Mr. Sait drew our attention to the evidence of PW-4 Kamlabai who has stated that when she came home she noticed quarrel was going on between the appellant and his wife Laxmi and she tried to pacify the quarrel, but in vain. Her evidence shows that during the course of quarrel the appellant assaulted Laxmi with iron key on her head. Mr. Sait pointed out that the evidence of PW-1 Balasaheb, the brother of Laxmi, shows that Laxmi was aggressive in nature and she used to get angry if anything was not done as per her desire. Mr. Sait has further pointed out that when the appellant was arrested, the clothes i.e. shirt and pant on his person were found in torn condition, which is clear from the arrest panchanama Exhibit 13. This shows that the quarrel reached to such extent that Laxmi had torn the clothes of the appellant. It was in these circumstances, the appellant assaulted Laxmi with an iron key which resulted in her death. Mr. Sait submitted that being provoked by the act of Laxmi who tore his clothes, the appellant assaulted Laxmi on the head with iron key during a sudden quarrel. Mr. Sait further submitted that the assault was not premeditated or preplanned, but it happened suddenly, in the heat of passion upon a sudden quarrel between the appellant and Laxmi. Mr. Sait submitted that being provoked by the act of Laxmi who tore his clothes, the appellant assaulted Laxmi on the head with iron key during a sudden quarrel. Mr. Sait further submitted that the assault was not premeditated or preplanned, but it happened suddenly, in the heat of passion upon a sudden quarrel between the appellant and Laxmi. He reiterated that the incident occurred during the course of a sudden quarrel hence the case would fall under Exception-4 to Section 300 and would be covered by Section 304 Part II of IPC. 10. For the application of Exception 4 to Section 300 of IPC, all ingredients mentioned therein 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 IPC. It takes two to make a fight. Heat of passion upon a sudden quarrel requires that there was no time for passion to cool down. In this case, the evidence shows that both parties had worked themselves into a rage on account of verbal altercation going on between them. During this quarrel, Laxmi had also torn the clothes of the appellant. The appellant did not come to the spot armed with a weapon, but he assaulted Laxmi with a key which was in his house during the course of sudden quarrel. 11. There is other angle to this case. No doubt the evidence on record shows that the appellant assaulted Laxmi. However, it is also an admitted fact that there was quarrel between the appellant and his wife Laxmi and in the course of quarrel, the appellant assaulted Laxmi. However, immediately after the appellant assaulted Laxmi, the appellant came out of the house and brought an auto-rickshaw to take Laxmi to the hospital. PW-2 Subhash, the neighbour of the appellant has stated that he heard shout, hence, he came out of his house. He saw the appellant coming out of the house. The clothes of the appellant were stained with blood. The appellant said that “khalas kele”. The appellant then brought a rickshaw and Laxmi was taken to the hospital by the said rickshaw. This conduct of the appellant cannot be seen divorced from the totality of the circumstance. Very probably the appellant would not have anticipated that the act done by him would escalate to such a proportion that Laxmi might die. The appellant then brought a rickshaw and Laxmi was taken to the hospital by the said rickshaw. This conduct of the appellant cannot be seen divorced from the totality of the circumstance. Very probably the appellant would not have anticipated that the act done by him would escalate to such a proportion that Laxmi might die. If the appellant ever intended Laxmi to die, he would not have immediately brought an auto-rickshaw to take Laxmi to the hospital. 12. Looking to all the above facts, we are of the opinion that the case would be covered by Exception 4 to Section 300 of IPC. In the facts and circumstances of this case, in our opinion the case would fall under Section 304 Part II of IPC. 13. Considering the facts on record, we are of the view that Exception 4 to Section 300 of IPC applies to the facts of this case and appropriate conviction would be under Section 304 Part II of IPC. Hence, the conviction under Section 302 of IPC is set aside, instead, the appellant is convicted under Section 304 Part II of IPC. In our opinion, custodial sentence of 7 years and fine of Rs.2000/-, in default of payment of fine, S.I. for 15 days, would meet the ends of justice. The Appeal is allowed to the above extent. 14. Office to communicate this order to the appellant and the jail authority in which jail the appellant is lodged. 15. At this stage, we must record our appreciation for Advocate Mr. Arfan Sait who is on the High Court Legal Services Committee and who was appointed to represent the appellant in this appeal. We found that he had meticulously prepared the matter and he has very ably argued the appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs.5000/-.