Judgment Jayant Patel, J.—The present appeal is directed against the judgment and the order passed by the learned Sessions Judge in Sessions Case No. 210 of 2008 whereby the learned Sessions Judge has convicted the appellant accused for the offence under Section 302 of Indian Penal Code and sentenced for life imprisonment with the fine of Rs. 1,000/- and further R.I. of 01 year for default in payment of fine. 2. The short facts of the case are that the complaint was filed at Ex. 51 by the deceased Lalitaben during her life time with the police on 23.12.2006 stating that yesterday (22.12.2006) when she was at her residence with her husband, her father-in-law was also at the residence. At the evening at about 7 O’clock when the accused told the deceased to go to Village Mirsapur at uncle’s place, the deceased refused and thereafter there was quarrel and the accused had beaten the deceased and went away. Thereafter at about 9 O’clock again there was quarrel between the accused and the deceased in connection with the aforesaid incident for the function of uncle and at that time the accused poured the kerosene which was brought by the father-in-law of the deceased for residential use and the accused set ablaze the deceased. The deceased started shouting, at that time the accused sprinkled water upon her and covered up with bedding in order to extinguish the fire. Thereafter, mother-in-law of the deceased called the mother of the deceased and the mother of the deceased was brought and on the next day they were taken to the hospital and the complaint was filed. In the complaint it was stated that she had no dispute or any harassment with mother-in-law or father-in-law. 3. The aforesaid complaint was investigated by the police and the charge-sheet was filed against the accused. The case was committed to the learned Sessions Judge being Sessions Case No. 210 of 2008. The prosecution in order to prove the guilt of the accused examined 17 witnesses and the details of whereof are recorded by the learned Sessions Judge at para4 of the impugned judgment. The prosecution also produced the documentary evidence of 23 documents, the details of which are mentioned by the learned Sessions Judge at para5 in the impugned judgment. 4. The prosecution in order to prove the guilt of the accused examined 17 witnesses and the details of whereof are recorded by the learned Sessions Judge at para4 of the impugned judgment. The prosecution also produced the documentary evidence of 23 documents, the details of which are mentioned by the learned Sessions Judge at para5 in the impugned judgment. 4. The learned Sessions Judge thereafter recorded the statement of the accused under Section 313 of the Criminal Procedure Code wherein the accused denied evidence against him and in the further statement the accused stated that a false case is filed against him. The learned Sessions Judge thereafter heard the prosecution and the defence and found that the prosecution has been able to prove the case against the accused for the offence under Section 302 of Indian Penal Code and therefore, the learned Sessions Judge convicted the accused for the offence under Section 302 of Indian Penal Code. The learned Sessions Judge thereafter heard the prosecution and the defence for sentence and then imposed the sentence as referred to hereinabove. Under the circumstances, the present appeal before this Court against the conviction made by the learned Sessions Judge. 5. The learned counsel Mr. Punit Juneja appearing for the appellant – accused and Mr. H.L. Jani, learned APP for the State have taken us to the entire evidence on record. We have considered the judgment and reasons recorded by the learned Sessions Judge. We have heard the learned counsel appearing for the accused – appellant and the learned APP for the State. 6. At the outset, we may record that learned counsel appearing for the accused contended that even if the evidence as considered by the learned Sessions Judge is accepted as it is, it would not be a case for conviction under Section 302 of Indian Penal Code, but would be a case for the offence under Section 304 Part2 of Indian Penal Code. He submitted that under these circumstances if the accused is convicted for the offence under Section 304 Part2 of Indian Penal Code, the conviction and sentence would be required to be modified. 7. He submitted that under these circumstances if the accused is convicted for the offence under Section 304 Part2 of Indian Penal Code, the conviction and sentence would be required to be modified. 7. Whereas the learned APP while supporting the judgment of the learned Sessions Judge contended that the prosecution had led the evidence which if considered, it would make out a case for conviction for the offence under Section 302 of Indian Penal Code and once the accused is convicted for the offence under Section 302 of Indian Penal Code, the sentence imposed by the learned Sessions Judge cannot be said to be erroneous or illegal. 8. In view of the aforesaid submission since the contention raised is only on a limited aspect we may not be required to examine in detail the evidence led by the prosecution, but we may be required to concentrate on the question as to whether the case would fall for the conviction under Section 302 of Indian Penal Code and/or for the offence under Section 304 Part2 of Indian Penal Code and thereafter the question of appropriate sentence may be required to be examined. 9. The evidence led by the prosecution shows that the case was based on dying declaration (hereinafter referred to as ‘D.D.’ for short). The relevant aspect is that initially a complaint was registered for the offence under Section 307 of Indian Penal Code and as the deceased survived for about 09 days and thereafter succumbed to the injury, the charge was amended for the offence under Section 302 of Indian Penal Code. The aforesaid aspect will have the relevance while considering the question as to whether the case would fall for conviction under Section 302 of Indian Penal Code and/or for the offence under Section 304 Part1 or Part2 of Indian Penal Code. 10. The case of the prosecution mainly based on dying declaration (D.D.). In all there are three D.D. of the deceased. One is the complaint given by the deceased on 23.12.2006 when she was brought to S.S.G. Hospital, Vadodara with the concerned police officer. The said complaint has come on record through the evidence of the Police Inspector – Shri Kanubhai Jaychandbhai P.W.No.16 and the complaint is exhibited at Ex. 51. In all there are three D.D. of the deceased. One is the complaint given by the deceased on 23.12.2006 when she was brought to S.S.G. Hospital, Vadodara with the concerned police officer. The said complaint has come on record through the evidence of the Police Inspector – Shri Kanubhai Jaychandbhai P.W.No.16 and the complaint is exhibited at Ex. 51. If the said complaint is considered as D.D. before the Police Officer, we may have to examine as to whether there is consistency in the subsequent D.D. or not. The second D.D. is recorded by the Executive Magistrate on 23.12.2006 at 19:05 O’clock and concluded at 19:30 O’clock. The said D.D. has come on record through the evidence of the Executive Magistrate – Chavda Bhavansinh P.W. No. 12 Ex. 40 and the D.D. is at Ex. 43. If the contents of the D.D. Ex. 43 is considered with the complaint Ex. 51 there is consistency and no inconsistency to the material part of the role played by accused for pouring kerosene and setting ablaze the deceased. The third D.D. is before the mother of the deceased Chanchalben Chaturbhai P.W. No. 8 Ex. 34 wherein she has deposed that when she inquired with her daughter (deceased), she was told by the deceased that her husband sprinkled the kerosene and set fire. Therefore, even in the third D.D. there is no inconsistency for the role played by the accused of sprinkling of the kerosene and setting fire. The said witness has further deposed in her testimony that when again the deceased had gained consciousness she had told her that there was quarrel and the same was because of the fact that the deceased refused to go for the function of Badha to Village : Mirsapur. It was further stated that since there was quarrel, the accused had slapt the deceased and as the accused was excited he sprinkled the kerosene and set fire. In our view even if third oral D.D. before this witness is considered there is consistency in the role played by the accused is maintained and there is no contradiction. It was further stated that since there was quarrel, the accused had slapt the deceased and as the accused was excited he sprinkled the kerosene and set fire. In our view even if third oral D.D. before this witness is considered there is consistency in the role played by the accused is maintained and there is no contradiction. We may not further deal with the aspect of role played by the accused and the other evidence led by the prosecution, namely, as that of the medical evidence of the doctor who performed postmortem and the place of the offence, the FSL report etc., since the said aspects are not argued or contentions not raised by the learned counsel appearing for the appellant – accused. However, the pertinent aspect is that in all the 03 D.D. there is reference and the evidence has come for the quarrel between the accused and the deceased and thereafter the incident had happened. It has also come in evidence that the accused tried to extinguish the fire by sprinkling cold water upon the deceased and by covering the deceased with the bedding. If these two important aspects are considered it would make out a case for sudden provocation and the conduct of the accused would also show that he has not taken any undue advantage of the situation but has rather tried to save the deceased at the later stage. Therefore, there was no intention to cause death. Further initially the complaint was registered for the offence under Section 307 of Indian Penal Code and the deceased survived for about 09 days and then succumbed to the injuries. Such would show that the death of the deceased was not immediate but was at a later stage and the said aspect would supplement the fact that there was no intention to cause death. We need not burden our judgment with the various case law, but a useful reference can be made to the decision of Sridhar Bhuyan vs. State of Orissa, reported in (2004) 11 SCC 395 . The observations made at Paras 7 and 8 of the judgment which reads as under :— “7. We need not burden our judgment with the various case law, but a useful reference can be made to the decision of Sridhar Bhuyan vs. State of Orissa, reported in (2004) 11 SCC 395 . The observations made at Paras 7 and 8 of the judgment which reads as under :— “7. For bringing in operation of Exception 4 to Section 300, IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 8. The Fourth Exception of Section 300, IPC 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 selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men’s sober reasons 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 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, 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 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 not 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’.” 11. If the facts of the present case are examined further in light of the aforesaid legal position, we are of the considered view that the case would fall under Exception 4 to Section 300 of Indian Penal Code and not for offence under Section 302 of Indian Penal Code. 12. If the facts of the present case are examined further in light of the aforesaid legal position, we are of the considered view that the case would fall under Exception 4 to Section 300 of Indian Penal Code and not for offence under Section 302 of Indian Penal Code. 12. In view of the aforesaid observations and discussion, the judgment and the order passed by the learned Sessions Judge is modified to the effect that the conviction of the appellant – accused shall be for the offence under Section 304 Part2 of Indian Penal Code and not for the offence under Section 302 of Indian Penal Code. Further the sentence shall be 10 years R.I. with the same fine of Rs. 1,000/and further 03 months R.I. for the default in payment of fine. The appeal is partly allowed to the aforesaid extent. R & P be returned to the trial Court.