Judgment D.N. Patel, J. 1. This appeal has been preferred by the appellant against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court, Latehar in Sessions Case No.543 of 1998. This appellant has been convicted for the offence of murder of Shiv Lal Yadav and he has punished for life imprisonment vide order dated 3rd/9th January, 2004. This appellant has also been fined for Rs. 5,000/in case of default, further simple imprisonment of one year has also been awarded against this appellant, and the sentences shall run concurrently, hence, the present appeal has been preferred. 2. The case of the prosecution is that on 26.06.1998 at 9:15 hours the informant Shiv Lal Yadav (Deceased) in injured condition gave fardbeyan to police in Sub-Divisional Hospital, Latehar that his brother Ram Chandra Yadav and Shatrughan Yadav were doing the work of agent and were executing the work of road in the village. About two-three days before, during the execution of road in the village, Saryu Yadav (accused) of same village told them that no road should be constructed in his cultivating land and for which there was hot discussion between informant brother Ram Chandra Yadav and Saryu Yadav and now construction of road is stopped. The informant further alleged that on 25.06.1998 at 3.00 P.M hot discussion had taken place between the informant's brother Shatrughan Yadav and wife of Saryu Yadav for the road and land and thereafter wife of Saryu Yadav gone to her house and the same was informed to the informant by his brother Shatrughan. The informant further alleged that on 26.06.1998 at about 6:00 P.M he was playing with a child in his bari and his younger brother Ram Chandra was getting shaved by Prem Thakur (barber) besides him and his brother Shatrughan was also sitting there, at that time Saryu Yadav was going to his house from forest with wood in his head and tangi (Axe) in his hand, then informant told him as to why he was having altercation for the road and land, on this saying, Saryu Yadav bring down the wood from his head and assaulted the informant by giving twothree blow with tangi (Axe) due to which informant get injured and get unconscious and fell down. Seeing this when informant rushed there and then Saryu Yadav fled away from there. Seeing this when informant rushed there and then Saryu Yadav fled away from there. Thereafter in unconscious condition informant was brought to the Latehar hospital for treatment by his brother and family members, where his treatment is going on and there was cut injury in his back, neck and right hand elbow. The informant further alleged that witnesses of this occurrence are his brothers, Prem Thakur (Barber) and villagers. 3. In view of the aforesaid fardbeyan given by Shiv Lal Yadav offence was registered and this informant Shiv Lal Yadav expired on 14th July, 1998 i.e., after approximately 19 days from the date of incident and offence punishable under Section 302 of the Indian Penal Code was added. Statement of several witnesses were recorded, chargesheet was filed by the Investigating Officer and the case was committed to the Sessions Court as Sessions Case No.543 of 1998 and the learned Trial Court on the basis of deposition given by P.Ws. 1 to 5 and also on the basis of documentary evidences on record convicted this appellant for the offence of murder of the deceased and punished him for life imprisonment vide order dated 3rd /9th January 2004 and the judgment and order of conviction and sentence has been challenged by this appellant in this criminal appeal. 4. We have heard learned counsel appearing for the appellant, who has submitted that there are major omission, contradiction and improvement in the depositions of the prosecution witnesses. This aspect of matter has not been properly appreciated by the learned Trial Court. Moreover, the socalled eye witnesses are in fact no eye witnesses at all. P.W.2 has stated clearly in paragraph 6 and 7 of his deposition that he is not an eye witness at all and when actual incident had taken place he had gone to take water and when he returned he saw Shiv Lal Yadav fallen on the ground likewise P.W.3 is also not an eye witness at all. It is submitted by the learned counsel for the appellant that Shatrughan Yadav has referred repeatedly by the witnesses as well as in the F.I.R. filed by the victim when he was injured this crucial eye witness has not been examined by the prosecution, though he was cited as a witness in the chargesheet. It is submitted by the learned counsel for the appellant that Shatrughan Yadav has referred repeatedly by the witnesses as well as in the F.I.R. filed by the victim when he was injured this crucial eye witness has not been examined by the prosecution, though he was cited as a witness in the chargesheet. Similarly, one Prem Thakur has also referred repeatedly by the witnesses and also in the F.I.R., though he has also not been examined as a prosecution witness. Thus, this Prem Thakur is a natural eye witness and an independent witness. The prosecution has not examined these witnesses at all whereas close relative P.W.1, who is brother of the deceased has been examined as an eye witness. Similarly, P.W.3 is also brother thus, except close relative, nobody has been examined as an eye witness. Though, P.W.2 has stated in paragraph 6 and 7 in his deposition that he has never given any statement before the police and he is giving evidence for the first time in the Court. The Investigating Officer has not been examined by the prosecution as a witness and therefore, there is not evidentiary value of P.W.2 and rest of the witnesses P.Ws.1 and 3 are brothers. P.W.4 is Dr. Saroj Kumar, who has carried out the postmortem of the dead body of the deceased. It is submitted that the ocular evidence and medical evidence are contradictory with each other as per the medical evidence given by P.W. 4. There are injuries sustained by the deceased, which were also capable of being caused by hard and blunt substance but, not a single socalled eye witness has ever stated before the Court that the present appellant had given blows by lathi or stick. Thus, the injuries referred by the doctor, which were capable of being caused by hard and blunt substance have remained unexplained. Moreover, P.W. 5 has submitted that his statement was never recorded by the police nor he has been referred as witness in the chargesheet, though he is not knowing ABC about the police, but he has proved the F.I.R. How he is knowing the signature of the Assistant Sub-Inspector of Police ? He is a student, thus, how the fardbeyan etc. have been given exhibit number by the learned Trial Court even the case diary has also been proved by this student. He is a student, thus, how the fardbeyan etc. have been given exhibit number by the learned Trial Court even the case diary has also been proved by this student. This evidence is absolutely useless and there is sheer waste of time and energy of the Court. He cannot be examined as a witness in the Court. He is a bypasser on the road. This type of witnesses have been examined by the learned Trial Court with full non application of mind. There is conviction given by the learned Trial Court and hence, forthwith, such type of conviction may be quashed and set aside. This witness has proved fardbeyan, F.IR, inquest, panchnama and case diary, though he is not knowing anybody's hand writing, and he is full of ignorance then also exhibit number has been given by the learned Trial Court. Moreover, it is submitted alternatively by the counsel for the appellant that this is not preplanned well designed murder, assuming that there is case of the prosecution then also as per fardbeyan given by the victim Shiv Lal Yadav, who had expired later on, this appellant was coming from Jungle side and he was having bundles of wooden log on his head and having a tangi (Axe) in his hand, which is sharp cutting weapon, which is normally used to cut wood etc. by the villagers in the village and he was intercepted by the deceased and he was questioned by the deceased and thereafter the whole incident had taken place. Thus, there was no intention by the appellant for causing any injury to the deceased. If the deceased would not have asked any question to the appellant, perhaps appellant would have gone to his residence silently. Looking to this narration given by the deceased himself and also looking to the fact that this appellant is in jail custody since last more than 15 years, this conviction may be converted into the conviction punishable under Section 304 Part – II of the Indian Penal Code and he may be punished for 10 years for rigorous imprisonment, which is highest punishment under Section 304 Part – II of the Indian Penal Code and the purpose of filing this criminal appeal will be served if the conviction is altered and the sentence is also modified hereinabove. 5. 5. We have heard learned counsel for the State A.P.P, who has submitted that no error has been committed by the learned Trial Court in appreciating the evidences on record for causing murder of the deceased and he is rightly punished for life imprisonment. The case of the prosecution is based upon more than one eye witness, who are P.Ws.1, 2 & 3. Immediately fardbeyan, which was given by the victim himself when he was in hospital and the victim Shiv Lal Yadav, expired later on, has clearly stated in the F.I.R that this appellant caused injury by tangi on his head, neck and on hand. This F.I.R has also been signed by P.W. 3. In the F.I.R there is reference of P.W. 1, this appellant is named in the F.IR and looking to the deposition of P.Ws. 1, 2 & 3, they have clearly stated in their deposition that this appellant has caused injury by tangi upon head and neck of the victim thereafter, the victim had fallen down and he was taken to the hospital and thereafter he was referred for further treatment for Ranchi – the capital city of the State of Jharkhand and thereafter in Rajendra Medical College and Hospital (RMCH) where he expired on 14th July, 1998. Medical evidence given by P.W.4 is also corroborative to the deposition given by P.W. 2 who is also an eye witness. Fardbeyan, F.I.R., Inquest and case diary have been proved by P.W. 5. On the basis of these evidences, learned Trial Court has rightly punished this appellant for causing murder of the deceased and this criminal appeal may not be entertained by this Court. 6. Having heard counsel for both the sides and looking to the evidences on record, it appears that this is not preplanned and well designed murder committed by this appellant. It appears from the F.I.R that one Shiv Lal Yadav, who was at his residence on 26 June 1998 during evening hours and that time this appellant was coming from forest side having wooden log on his head and tangi in his hand. Normally, the villagers are used tangi to cut wood etc. It further appears from the F.I.R that P.W.1 who is brother of Shiv Lal Yadav (deceased) and he was an agent and he was doing some road construction activity. Normally, the villagers are used tangi to cut wood etc. It further appears from the F.I.R that P.W.1 who is brother of Shiv Lal Yadav (deceased) and he was an agent and he was doing some road construction activity. The road was passing through the field of this appellant and thereafter there were some hot altercation between them and because of this Shiv Lal Yadav (deceased) stopped this appellant and asked him that why he is disputing for the construction of road and thereafter this appellant had caused injury by tangi to Shiv Lal Yadav and thereafter Shiv Lal Yadav was sifted to SubDivisional Hospital, Latehar, thereafter he was referred to Ranchi and ultimately he expired on 14th July, 1998 i.e. after approximately 19 days from the date of incident. 7. Thus, it appears from the F.I.R that the victim, who expired after 19 days, had intercepted by this appellant and asked him question about the construction of the road and thereafter this incident had taken place. Thus, it appears that there was no preplanned well designed action causing murder of the deceased by this appellant. There was no special weapon in his hand nor he wanted to assault the victim. If the victim would have not asked him anything perhaps nothing would have happened at all. This aspect of matter has not been properly appreciated by the Trial Court and hence, the judgment and order of conviction and sentence deserves to be quashed and set aside. 8. It further appears from the F.I.R that there is one Shatrughan Yadav, who is an eye witness and statement of this eye witness was also recorded by the Investigating Officer In the chargesheet his name was mentioned as prosecution witness, but, he has not been examined by the prosecution. No reasons are coming out from the prosecution side why this crucial eye witness of the case of murder has been dropped neither such application was given to the Trial Court nor any order passed by the Trial Court upon such application of the prosecution. When any eye witness is cited as prosecution witness specially in a murder case the prosecution can not dropped the witness without permission of the Court. Examination of the witnesses is not depending upon the sweet will of the prosecution. When any eye witness is cited as prosecution witness specially in a murder case the prosecution can not dropped the witness without permission of the Court. Examination of the witnesses is not depending upon the sweet will of the prosecution. It is duty of prosecution to examine the crucial witness in the criminal cases and in this case prosecution has failed to discharge their duties. This aspect of matter has not been properly appreciated by the learned Trial Court. 9. Similarly, looking to the deposition given by P.W.1, also looking to the F.I.R and also looking to the other prosecution witnesses, one name is referred consistently as an eye witness, who is Prem Thakur (Barber). This Prem Thakur has also not been examined by the prosecution, though he is an eye witness of the murder case. P.W 1 and P.W. 3 are brothers of the deceased whereas Prem Thakur is an independent eye witness. Prosecution has not examined this independent eye witness in this murder case, though he consistently referred in the F.I.R and in the deposition given by P.Ws. 1, 2 & 3. This aspect of matter has also not been properly appreciated by the learned Trial Court. 10. Looking to the deposition given by P.W. 2, who is Kameshwar Yadav, has stated in paragraph – 6 of his deposition that he has not an eye witness at all and he has not seen this appellant causing injury upon the body of the deceased. At that crucial time, he had gone to take water and when he returned he saw Shiv Lal Yadav fallen on the ground. Thus, looking to the paragraph – 6, this P.W. 2 is not an eye witness at all. 11. Further, looking to the paragraph – 7 of the deposition given by P.W. 2, it appears that his statement under Section 161 of the Criminal Code of Procedure was not record by the Investigating Officer and he has given deposition for the first time in the Court. In this case Investigating Officer has not been examined at all. Non examination of the Investigating Officer is fatal in this case when deposition like paragraph – 7 has been given by P.W. 2. In this case Investigating Officer has not been examined at all. Non examination of the Investigating Officer is fatal in this case when deposition like paragraph – 7 has been given by P.W. 2. If Investigating Officer is not available for any reasons whatsoever like in this case because of death, then also prosecution would have examined another police officer, who knows the hand writing of the Investigating Officer. No such witnesses have been examined by the prosecution and the person i.e. another Police Officer of the same Police Station, who is rubbing shoulder day to day with the said Police Officer should have been examined by the prosecution for proving the fardbeyan and F.I.R and fact of recording the statement of P.W. 2 under Section 161 of the Cr.P.C at the relevant time, by the Investigating Officer, by referring the case diary of the case. Prosecution has not examined such type of another Police Officer. 12. Looking to the deposition given by P.Ws. 1 & 3 they are the brothers of the deceased and P.W. 1 has been referred in the F.I.R and there is no reference that P.W 2 as an eye witness nor P.W. 1 has also referred P.W. 3 as an eye witness. Thus, P.W. 3 has been brought by the prosecution as an eye witness of their own without their being any reference in the F.I.R and without their being any reference of P.W. 1. So far as deposition given by P.W. 1 is concerned, he has clearly stated the role played by this appellant in causing injury upon the body of the deceased. He has clearly stated that the appellant was coming from the forest side having wooden stick/log on his head and tangi in his hand and he was stopped by this Shiv Lal Yadav deceased and was asked by Shiv Lal Yadav why he has raised disputes about the construction of the road and thereafter, this appellant bring down wooden log from his head and used tangi for causing injury upon Shiv Lal Yadav. Thus, from the deposition given by P.W. 1, it appears that this is not preplanned and well designed murder committed by this appellant, if Shiv Lal Yadav would not have stopped this appellant perhaps the incident could have been avoided. Thus, from the deposition given by P.W. 1, it appears that this is not preplanned and well designed murder committed by this appellant, if Shiv Lal Yadav would not have stopped this appellant perhaps the incident could have been avoided. Moreover, there was no special weapon in the hand of this appellant, he was coming from jungle after cutting the branches of tree etc. with the help of tangi and he was stopped by Shiv Lal Yadav and thereafter he caused injury by tangi upon Shiv Lal Yadav. Looking to this narration given by P.W. 1 and also looking to the nature of the weapon used by this appellant, we are of the opinion that this appellant is liable to be punished for the offence culpable homicide not amounting to murder for 10 years rigorous imprisonment under Section 304 Part – II of the Indian Penal Code instead of life imprisonment under Section 302 of the Indian Penal Code. More particularly, there was no intention on the part of the appellant for causing murder of the deceased and medical evidence given by P.W. 4, who has also not stated that injuries were sufficient in ordinary course of nature to cause death of the deceased. Thus, in absence of this opinion given by P.W. 4 and in absence of any intention on the part of the appellant for causing murder, the appellant cannot be punished for the offence of murder of the deceased under Section 302 of the Indian Penal Code. Instead of that looking to the deposition given by P.W. 1, the appellant is liable to be punished for the culpable homicide not amounting to murder and he is liable to undergo sentence of 10 years rigorous imprisonment under Section 304 Part – II of the Indian Penal Code. This aspect of matter has not been properly appreciated by the learned Trial Court. This appellant has remained in jail since 01.07.1998. 13. P.W. 4, Dr. Saroj Kumar, in his deposition has narrated the injuries as under : “Ante mortem injuries (A) Abrasions (i) 1 ½ x ½c.m on the left side of forehead (ii) 3 x 2 c.m. on right leg back upper part. (B) Stitched wound (i) 08 c.m long on the back of neck situated upper down wards slightly oblique, underneath there was cut injury in 4th and 5th cervical vertebra with injury to spinal code. (B) Stitched wound (i) 08 c.m long on the back of neck situated upper down wards slightly oblique, underneath there was cut injury in 4th and 5th cervical vertebra with injury to spinal code. (ii) 05 c.m long occipital region of head cutting the underlying skull bone superficially. Opinion – All the injuries were antemortem. Abrasions had been caused by hard and blunt substance and had not caused or contributed to death. Above referred stitched wounds – the original wound had been caused by heavy sharp cutting weapon, death was due to above noted injury. (B) Time since death – Six to Twenty four hours from the time of postmortem examination. This P.M report is on my own pen and signature and seal – mark it Exhibit “2”. Above antemortem injuries may be caused by “TANGI”. 14. Thus, from the medical evidence, it also appears that nowhere the doctor has given opinion that the injury is sufficient in ordinary course of nature to cause death of the deceased. Moreover, there are certain unexplained injuries by the prosecution which have been narrated as abrasion caused by hard and blunt substance and no single prosecution witnesses has stated that lathi blows or stick blows are given by this appellant to the victim. 15. Thus, looking to the F.I.R (which was given by the victim who expired later on 14.07.1998 i.e. after approximately 19 days from the incident) and also looking to the deposition given by P.W. 1, it appears that the death has taken place after 19 days from the date of incident. There was no intention on the part of the appellant and even in the medical evidence given by P.W.4 i.e. the doctor, who had carried out the postmortem, it has not been stated that injuries were sufficient in ordinary course of nature, causing death of the deceased. 16. In the case of Kailash v. State of M.P., as reported in (2006) 11 SCC 420 , especially at paragraph no. 39, the Hon'ble Supreme Court has held as under: “39. However, in Rajinder v. State of Haryana another Division Bench of this Court upon analysing the provisions of Section 300 of the Penal Code and referring to the celebrated case of Virsa Singh v. State of Punjab stated the law thus: “23. These observations of Vivian Bose, J. have become locus classicus. However, in Rajinder v. State of Haryana another Division Bench of this Court upon analysing the provisions of Section 300 of the Penal Code and referring to the celebrated case of Virsa Singh v. State of Punjab stated the law thus: “23. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of clause ‘Thirdly’ is now ingrained in our legal system and has become part of the rule of law. Under clause Thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. 24. Thus, according to the rule laid down in Virsa Singh case, even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point. 25. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons — being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. 26. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. 26. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.” In that case, even applying the said principles, the conviction under Section 304 Part II of the Penal Code was only maintained.” (Emphasis supplied) Further, in the case of Gurmukh Singh v. State of Haryana, as reported in (2009) 15 SCC 635 , especially at paragraph nos. 23 and 25 thereof, the Hon'ble Supreme Court has held as under: “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. xx xx xx 25. When we apply the settled principle of law which has been enumerated in the aforementioned cases, the conviction of the appellant under Section 302 IPC cannot be sustained. In our considered view, the appellant-accused ought to have been convicted under Section 304 Part II IPC instead of under Section 302 IPC.” (Emphasis supplied) Again in the case of Chenda @ Chanda Ram Vs. State of Chhatisgarh, as reported in [2013] 12 JT 28: [2013] 6 Supreme 193, especially at paragraph nos. 16 & 17 thereof, the Hon'ble Supreme Court has held as under: “16. In the light of the principles which have been discussed fairly exhaustively, we have to analyse the factual position as to whether the appellant had the intention to cause death, or whether he only had the knowledge about the injury which is likely to cause death. We have to also analyse the manner in which the injury is caused and the provocation for the same. There is no evidence in the case that there was previous enmity between parties though PW2 has attempted for such a version of the case. She has been disbelieved on that account because of contradictions within her own statement under Section 161. The available evidence would show that there was no premeditation on the part of the appellant and that it was a case of sudden fight. It has to be noted while appreciating the evidence that Ramgulal (deceased) was called by his wife to the spot to settle the disputes once for all and that the ensuing sudden scuffle with the first accused was in the presence of his wife. It has come out in the evidence of PW11-Kartikram that the injury inflicted by the appellant was during the scuffle between the deceased and the first accused Anjoriram and that after the lone strike on the head of the deceased by the appellant, both the deceased and Anjoriram had fallen down and it was PW2-Heminbai who separated Anjoriram and Ramgulal as they had become entangled with each other. That only means that Ramgulal had overpowered Anjoriram or else the deceased alone would have fallen down and not the first accused Anjoriram. The said conduct of the deceased overpowering Anjoriram during the scuffle was the immediate provocation for the appellant to take the weapon, the tekani which was available in the vicinity to hit the deceased. There is no evidence at all as to whether the appellant intended to hit on the head only or elsewhere on the body. The scuffling parties being in motion, it could easily have happened that the blow fell on the head unintentionally. No doubt the scuffle of the deceased was with the Anjoriram but the entire fight was with the deceased on one side, and the appellant and other accused Anjoriram on the other side. It is not required that the fight must be between the main accused and deceased. The fight can as well be between two parties, the deceased on one side and all the other accused on the other side. There is only one hit. There is nothing to show that there was any cruelty involved by inflicting any other injury or by any other conduct on the part of the appellant so as to hold that the appellant was taking any undue advantage of the situation or that he behaved in a cruel or unusual manner. Thus, all the four ingredients required for treating the case under Exception 4 to Section 300 of the Code as stated in Pappu’s case (supra) are satisfied in the instant case. 17. The next inquiry is whether the offence falls under first part of Section 304 or the second part. Having regard to the parameters indicated in Gurmukh Singh’s case (supra), the offence seems to fall under the second part. There is no evidence of motive or previous enmity. The incident has taken place on the spur of the moment. There is no evidence regarding the intention behind the fatal consequence of the blow. There was only one blow. The accused is young. There was no premeditation. The evolution of the incident would show that it was in the midst of a sudden fight. There is no criminal background or adverse history of the appellant. It was a trivial quarrel among the villagers on account of a simple issue. The fatal blow was in the course of a scuffle between two persons. There was no premeditation. The evolution of the incident would show that it was in the midst of a sudden fight. There is no criminal background or adverse history of the appellant. It was a trivial quarrel among the villagers on account of a simple issue. The fatal blow was in the course of a scuffle between two persons. There has been no other act of cruelty or unusual conduct on the part of the appellant. The deceased was involved in the scuffle in the presence of his wife and he had actually been called upon by her to the spot so as to settle the score with the accused persons. The deceased had, in the scuffle, overpowered the first accused. That first accused was acquitted. Thus, considering all these aspects, we are of the view that it is a fit case to alter the punishment of imprisonment for life to imprisonment for a period of 10 years with fine of Rs.50,000/-. Ordered accordingly. Since the deceased has been left with a young widow and one child, the amount of fine thus recovered shall be paid as compensation to the widow and the child. In the event of the appellant defaulting to pay the fine, he shall undergo imprisonment for a further period of two years. In case the appellant has already served the term as above, he shall be released forthwith, if not required to be detained in connection with any other case. The appeal is allowed as above.” (Emphasis supplied) 17. We, therefore, quash and set aside the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court, Latehar in Sessions Case No.543 of 1998 dated 3rd/9th January, 2004. That this appellant has committed murder of the deceased in fact he is liable to be committed culpable homicide not amounting to murder of the deceased and therefore, he cannot be punished for the offence punishable under Section 302 of the Indian Penal Code, but he is liable to be punished under Section 304 Part – II of the Indian Penal Code and we alter the punishment instead of life imprisonment he shall undergo rigorous imprisonment for 10 years. The judgment and order of conviction of sentence passed by the learned Additional Sessions Judge, Fast Track Court, Latehar in Sessions Case No.543 of 1998 dated 3rd/9th January, 2004, is hereby, altered and modified to this extent. 18. In view of the aforesaid evidences on record, judgment and conviction under Section 302 of the Indian Penal Code and sentence of imprisonment of life and fine of Rs.5000/is altered and modified and the appellant is found guilty for the offence under Section 304 Part – II of I.P.C. for committing culpable homicide not amounting to murder. We, therefore, quash and set aside the judgment and order of conviction and sentence dated 3rd/9th January, 2004, passed by Shri Ram Babu Gupta, Additional Sessions Judge, Fast Track Court, Latehar in Sessions Case No.543 of 1998 and hereby, sentence the appellant to undergo 10 years rigorous imprisonment under Section 304 Part – II of I.P.C instead of life imprisonment under Section 302 of I.P.C. As the appellant has remained in jail custody for more than 15 years, he is directed to be released forthwith if not wanted in any other case. This appeal is partly allowed with the modification of the sentence to the aforesaid extent and disposed of.