JUDGMENT : P.N. Deshmukh, J. 1. This appeal takes exception to judgment dated 26.12.2001 passed in Sessions Trial No. 110/1998 by the learned Additional Sessions Judge, Buldana whereby appellant/accused came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 1000/-, in default of payment of fine to suffer simple imprisonment for a period of one month. Accused is further convicted for the offence punishable under Section 504 of the Indian Penal Code and is sentenced to suffer simple imprisonment for one month. Accused is also convicted for the offence punishable under Section 506 of the Indian Penal Code and is sentenced to suffer simple imprisonment for one month. In brief, it is the case of prosecution that deceased Shriram Chavan was one of the brother of accused. Elder two brothers, Rajaram and Kashiram were residing elsewhere, while deceased and accused were residing at Village Borakhedi, District Buldana having their houses situated opposite to one another having common space behind their houses. On 16-5-1998, deceased along with P.W. 1 Asha, his wife, P.W. 3 Ajay, his son were preparing brooms in the morning in the open space, at about 3.00 p.m., accused arrived under the influence of liquor and extended threats to deceased asking him to vacate the place saying that it belongs to him and also extended threats to kill him on his failure to do so. Deceased accompanied with P.W. Asha, therefore, lodged complaint of said incident with police, upon which N.C. Was registered and in pursuance to said complaint, P.W. 5 Sanjay Padghan, Police Constable had visited the village to search the accused but could not trace him. 2. It is further case of prosecution that on the same day at 5.00 p.m., accused again arrived on the spot and invited quarrel with deceased and his family members asking them as to why they have not vacated the place and were still preparing brooms there, and abused wife of deceased. 2. It is further case of prosecution that on the same day at 5.00 p.m., accused again arrived on the spot and invited quarrel with deceased and his family members asking them as to why they have not vacated the place and were still preparing brooms there, and abused wife of deceased. When deceased tried to convince him, he did not pay any heed to his request and indulged into scuffle having dagger in his hand and in the course of same transaction, dragged deceased towards his house to whom, P.W. Asha and P.W. Ajay followed and by means of weapon, which was in his hand, which is commonly used for removing skin of dead animals, gave two blows to the deceased on his ribs and on costal region, due to which he received severe injuries. 3. On P.W. Asha raising shouts, one Ramdas and P.W. 2 Ashok arrived on the spot and P.W. 2 Ashok separated them. P.W. Asha thereafter took the injured to Government Hospital at Borakhedi which was situated near to the Police Station. Observing injured, police station officials from said Police Station went towards injured and police then made necessary arrangement to shift the injured to Government Hospital, Buldana, as no Medical Officer was present in the local hospital. From Buldana, injured was shifted to hospital at Aurangabad having been accompanied by his wife Asha along with P.W. 5 Police Constable Padghan. P.W. 6 Abdul Mannan, ASI had gone to local hospital at Borakhedi to whom P.W. Asha informed that her brother-in-law assaulted injured/husband. Though P.W. 6, ASI Mannan had issued requisition memo to Tahsildar, Motala for recording statement of injured, same could not be recorded as injured was required to be immediately shifted to Government Hospital at Buldana. In the meantime, accused had also attended Borakhedi Police Station complaining that he was assaulted by the injured and was under the influence of liquor and thus accused was also sent to Buldana for his medical examination in the same vehicle. 4. Deceased succumbed to injuries while under medical treatment at Aurangabad on 21-5-1998. Last rites were performed by his wife Asha on the following day and has thus on 22-5-1998 lodged report with police, on the basis of which, offence came to be registered vide Crime No. 27/1998 and was investigated by P.W. 7 Devidas Patil, PSI. 4. Deceased succumbed to injuries while under medical treatment at Aurangabad on 21-5-1998. Last rites were performed by his wife Asha on the following day and has thus on 22-5-1998 lodged report with police, on the basis of which, offence came to be registered vide Crime No. 27/1998 and was investigated by P.W. 7 Devidas Patil, PSI. During the course of investigation, he visited the spot and on drawing spot panchanama, seized clothes of deceased and effected arrest of accused. During the course of interrogation, memorandum statement of accused came to be recorded and in pursuance to same, one knife came to be seized. According to the post mortem report, the cause of death was certified to be due to shock and haemorrhage due to stab wound involving chest and abdomen. 5. On completion of investigation, chargesheet came to be filed before the Judicial Magistrate First Class, Malkapur. In due course of time, case came to be committed to the Court of Sessions for trial. 6. Charge is framed against the accused for the offences punishable under Sections 302, 504 and 506 of the Indian Penal Code to which he pleaded not guilty. The defence of accused is of total denial and of false implication after death of deceased, on the say of brother and father of Asha who were having strained relations with him. 7. Learned trial Judge, on considering the evidence on record, had convicted the accused as aforesaid, hence this appeal. 8. Heard learned counsel Shri A.V. Gupta for the appellant and Shri V.A. Thakare, learned Additional Public Prosecutor for the State/respondent. 9. To effectively evaluate the submissions advanced by both side counsels, with their assistance, we have scrutinized the evidence on record. Admittedly, the case of prosecution is based on ocular evidence of P.W. 1 Asha, wife of deceased and P.W. 3 Ajay, son of deceased Shriram. P.W. 1 Asha, widow of deceased has stated that P.W. 3 Ajay is her son while accused is younger brother of her deceased husband. Deceased had two more brothers and all these four brothers have one premises at Village Borakhedi where deceased and accused were residing at the time of incident. The premises occupied by deceased and the accused were situated in front of each other having open space to its left side. Deceased had two more brothers and all these four brothers have one premises at Village Borakhedi where deceased and accused were residing at the time of incident. The premises occupied by deceased and the accused were situated in front of each other having open space to its left side. On the point of incident, she has stated that on 16-5-1998 since morning, she along with deceased and her children were preparing brooms in the open space where at about 3.00 p.m., accused arrived under the influence of liquor and extended threats to deceased to vacate the open space and also told deceased to not to do his work on this open space else he would kill him of which incident report was lodged by Asha as per Exhibit 21. It has further come in evidence of P.W. 1 Asha that on the same day at 5.00 p.m., deceased arrived and indulged into scuffle with her husband saying as to why he had not vacated the common space and also abused her in filthy languages, when her husband tried to pacify, accused dragged him in front of his house to whom Asha along with her children followed. She had further stated that accused was having armed with knife which is used for cutting dead animal's skin and in the course of same transaction when deceased was raising shouts as 'wachwawachwa' assaulted deceased by dagger by giving two blows on his ribs. P.W. Asha further stated that at that time, one Ramdas and P.W. 2 Ashok separated them and the accused ran away with the weapon of assault. Thereafter she took her husband to hospital, where two police officials arrived from the Police Station and with their assistance since no Doctor was available in the local hospital, carried injured to General Hospital, Buldana and thereafter to hospital at Aurangabad where he succumbed to his injuries on 21-5-1998. After his death and on performing last rites, she lodged report on the following day on 22-5-1998 as per Exhibit 22. 10. In cross-examination of P.W. 1, it is suggested that deceased sustained injuries accidentally by fall on sickle when he was under the influence of liquor, which is duly denied by her. After his death and on performing last rites, she lodged report on the following day on 22-5-1998 as per Exhibit 22. 10. In cross-examination of P.W. 1, it is suggested that deceased sustained injuries accidentally by fall on sickle when he was under the influence of liquor, which is duly denied by her. Though it is also suggested that after the death of deceased, false report is lodged by her to extract money, in the entire cross-examination, nothing material is found elicited from this witness, particularly, with reference to incident of assault as deposed by her. In that view of the matter, her evidence on the point of assault by knife by accused goes unchallenged. We thus find nothing on record to disbelieve the ocular version of P.W. 1 Asha, whose evidence in fact, appears to be corroborated by evidence of P.W. 3 Ajay, her son when he has stated that on the day of incident, when he was present in the open space preparing brooms, at about 3.00 p.m., accused arrived and abused his mother in filthy language about which his mother has reported to police. He further stated that again at 5.00 p.m., accused arrived and abused in filthy language, upon which, deceased said him to not to give abuses to his wife when scuffle took place amongst them and accused dragged deceased towards his house. He has stated that accused was having knife in his hand used for cutting dead animals and by the same knife, gave two blows on the ribs of his father. According to his further evidence, on raising shouts, P.W. 2 Ashok arrived and separated deceased from the clutches of accused when accused ran away. P.W. 3 Ajay has further stated about his father being referred to local hospital and then to Buldana and at Aurangabad. In his cross-examination, it has come on record that since 12 years prior to incident, relations between accused and deceased were not cordial and they were not on talking terms. Nothing material is brought on record to disbelieve evidence of this witness. On the contrary, we find there is no cross-examination on the point of incident of assault. His ocular evidence on the point of incident, as such, goes unchallenged. 11. From the above discussed evidence of eye witnesses, thus, prosecution is found to have established involvement of accused as an assailant of deceased Shriram. On the contrary, we find there is no cross-examination on the point of incident of assault. His ocular evidence on the point of incident, as such, goes unchallenged. 11. From the above discussed evidence of eye witnesses, thus, prosecution is found to have established involvement of accused as an assailant of deceased Shriram. In view of above discussed evidence particularly, with reference to fact of accused having strained relations with deceased and his family members since prior to the incident and of accused at the time of incident quarreling with deceased and indulging in scuffle, we have considered whether the case of appellant would fall under Section 302 of the Indian Penal Code or for lesser offence. To consider this aspect on considering evidence of P.W. 4 Dr. Ganesh Rathod, it is revealed that on 16-5-1998, as per requisition memo. Exhibit 26 received from police, he has examined accused who was found to have consumed alcohol but was not under the influence of liquor. On the same day, P.W. 4 Dr. Ganesh has also examined deceased. It appears that during the trial, prosecution has not examined Medical Officer, who has performed autopsy since the post mortem report came to be admitted on record by the defence and is at Exhibit 49. On perusal of same, it reveals that deceased has sustained following external injuries: (1) Two abrasion (R) arm. Lat side 1/2 c.m. x 1/2 c.m. each brownish in colour. (2) Abrasion over lower 1/3 of (R) arm. lat side 1/2 c.m x 1/2 c.m with scab. (3) Abrasion over (R) elbow over posterior aspect 2 c.ms. x 1/2 cm. (4) Sutured wound in axillary line (L) side in x illegible x inter costal space 1 cm. (5) Sutured wound just below wound No. (4) 3 c.ms. (6) Sutured wound (L) side of abdomen 20 c.ms. with (22 stitches). (7) Surgical drain (L) side of abdomen 1 c.m. x 1/2 c.m. x cavity deep. (8) Abrasion over (R) leg, lower 1/3 ant. side 1 c.m. x 1/2 c.m. All above abrasions with scab. According to the post mortem report, the probable cause of death is due to shock and haemorrhage due to stab wound involving chest and abdomen. (7) Surgical drain (L) side of abdomen 1 c.m. x 1/2 c.m. x cavity deep. (8) Abrasion over (R) leg, lower 1/3 ant. side 1 c.m. x 1/2 c.m. All above abrasions with scab. According to the post mortem report, the probable cause of death is due to shock and haemorrhage due to stab wound involving chest and abdomen. Considering the fact of non examination of Medical Officer, who had performed autopsy, we find that there is nothing on record to hold that the injuries on the person of the deceased collectively or individually were sufficient to cause death in the ordinary course of nature. In that view of the matter, from the facts as established by evidence, the only reasonable inference that can be drawn is that accused caused injuries to deceased with knowledge that he was thereby likely to cause death of deceased. In this case, evidence of Asha as well as Ajay established that relations between the accused and that of deceased were strained on account of open space adjoining to their houses and in fact, according to the case of prosecution, on the day of incident, accused indulged into quarrel with deceased in the afternoon on this count and again in the evening around 5.00 p.m. and also indulged into scuffle having armed with knife since he found that in spite of his telling deceased to vacate the open space occupied by deceased and his family members for preparing brooms, since same was not vacated by evening, there was quarrel amongst them. The evidence on record shows that there was no premeditation on the part of accused. We find it to note that for the application of exception 4 to Section 300 of the Indian Penal Code, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It is further necessary to show that the accused had not taken any undue advantage or acted in the cruel or unusual manner. According to the ocular evidence, two blows are given by the accused on the rib of deceased which fact of the case show that appellant did not take undue advantage or had acted in a cruel or unusual manner. As such, case of accused falls within exception 4 to Section 300 of the Indian Penal Code of which all the necessary ingredients are found necessary to be proved. As such, case of accused falls within exception 4 to Section 300 of the Indian Penal Code of which all the necessary ingredients are found necessary to be proved. In that view of the matter, we find it necessary to refer to the case of the Apex Court in the case of Selvam Vs. The State of Tamil Nadu reported in 2013 ALL MR (Cri.) 379 (S.C.) and in the case of Ravindra Shalik Naik and Ors. Vs. State of Mah. reported in 2009 ALL MR (Cri.) 1798 (S.C). We find that the Apex Court in the case of Selvam Vs. The State of Tamil Nadu (supra) found that from the evidence led on behalf of prosecution it was established beyond reasonable doubt that accused No. 1 used the aruval to strike on the head of the deceased. The Apex Court further held that it was also established beyond reasonable doubt that accused No. 6 snatched aruval from accused No. 1 and struck on the head of the deceased and further found that accused No. 7 struck the head of the deceased by a stick. It is further found that the result of the acts of all the accused Nos. 1, 6 and 7 caused death of deceased. However, while considering the question as to whether the case would fall under Section 302 of the Indian Penal Code or 304 Part I of the Indian Penal Code, the Apex court observed thus: 12. The next question which we have to decide is whether the criminal act committed by accused Nos. 1, 6 and 7 amounts to murder under Section 300, I.P.C., or some other offence. The medical evidence of P.W. 11 is clear that all the injuries of the deceased were most probably as a result of an assault by a blunt weapon and in the opinion of P.W. 11, the deceased appears to have died due to head injuries. P.W. 11 has also admitted in her cross-examination that she did not see any incised injuries during the post mortem examination and had a sickle been used it would have caused incised wounds. Thus, it appears that accused No. 1 and accused No. 6 had used not the sharp side but the blunt side of the aruval and accused No. 7 had used the stick in the assault on the deceased. Thus, it appears that accused No. 1 and accused No. 6 had used not the sharp side but the blunt side of the aruval and accused No. 7 had used the stick in the assault on the deceased. The fact that the blunt side of the aruval and a stick was used in the assault on the deceased would go to show that accused Nos. 1, 6 and 7 did not have any intention to cause the death of the deceased. Nonetheless, the injuries caused by accused Nos. 1, 6 and 7 were all on the head of the deceased, including his parietal and temporal regions. Accused Nos. 1, 6 and 7, thus, had the intention of causing bodily injury as is likely to cause death and were liable for punishment for culpable homicide not amount to murder under Section 304 Part I, I.P.C." 12. The Apex Court in the case of Ravindra Shalik Naik Vs. State of Maharashtra (supra) was considering the case wherein the quarrel took place between the accused and P.W. 3. In the said case also after quarrel took place, the appellants went inside their house which was close to the spot of incident and all of them returned to the spot with armed with axe, knife and gupti. All the three appellants inflicted injuries on the head and abdomen of deceased Kisan by means of those weapons. Two appellants also inflicted injuries on the head of P.W. 3 with those weapons with intention to cause his death. Deceased Kisan had died due to the said assault. 13. On considering above discussed law and evidence, we thus find that prosecution has established involvement of appellant for commission of murder of deceased Shriram. Two appellants also inflicted injuries on the head of P.W. 3 with those weapons with intention to cause his death. Deceased Kisan had died due to the said assault. 13. On considering above discussed law and evidence, we thus find that prosecution has established involvement of appellant for commission of murder of deceased Shriram. In that view of the matter and on considering fact as to whether appellant has intention of committing murder of deceased since from the evidence it is found that the weapon used in the present crime is knife, by which two blows are inflicted on the rib of the deceased and as stated earlier, since there is no medical evidence categorically opining that the injuries found on the deceased either collectively or individually were sufficient to cause death in the ordinary course of nature, though it can be said that the appellant had knowledge that injuries caused could cause death of deceased, it cannot be said that prosecution has proved beyond reasonable doubt that accused has intention to kill deceased Shriram. Considering the evidence on record as discussed above, we are of the considered view that exception 4 to Section 300 of the Indian Penal Code applies to the facts of the case and the appropriate conviction would be under Section 304 Part I of the Indian Penal Code. Hence, we pass the following order. ORDER (i) Criminal Appeal No. 15 of 2002 is partly allowed. (ii) The judgment and order of conviction passed by the Additional Sessions Judge, Buldana in Sessions Case No. 110/1998 for the offence punishable under Section 302 of the Indian Penal Code and sentence of life imprisonment awarded to the appellant is modified. (iii) It is held that the appellant is guilty of the offence punishable under Section 304(I) of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 1,000/- (Rupees One Thousand Only). In default of payment of fine to suffer rigorous imprisonment for one month. (iv) The appellant is entitled for set off under Section 428 of Code of Criminal Procedure for the period for which he has already undergone the sentence. (v) Ten weeks' time is granted for surrendering the appellant.