JUDGMENT : Biswajit Mohanty, J. - 1. This Criminal Appeal is directed against the judgment dated 21.9.2006 passed by the learned Additional Sessions Judge, Rourkela in S.T. Case No. 59 of 2005 convicting the appellant under Section 302 of the Indian Penal Code, 1860, for short, "the I.P.C." and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 2,000/- and in default to undergo rigorous imprisonment for one month. It is important to note here that the appellant along with his three relatives stood charged under Sections 498-A/304-B/302/201 read with Section 34 of the I.P.C. and Section 4 of the Dowry Prohibition Act, 1961. However, vide impugned judgment dated 21.9.2006, three relatives of the appellant were held not guilty of the charges levelled against them and were acquitted therefrom. So far as the appellant is concerned, he was also not found guilty of the charges levelled against him under Sections 498-A/304-B/201 read with Section 34 of the I.P.C. and Section 4 of the Dowry Prohibition Act, 1961. 2. The prosecution case in brief is that on 4.2.2005 at 12.30 P.M. on receipt of written report (Ext. 12) submitted by P.W.2 to the effect that one dead body of a female was lying at kilometer No. 410/24S-26S, P.W.12 registered U.D. Case No. 1 dated 4.2.2005 and took up investigation. In course of investigation, P.W.12 visited the spot, sent requisition to the Scientific Officer, D.F.S.L., Rourkela, conducted inquest over the dead body of Sudharani, wife of the appellant, sent dead body for autopsy and during such investigation, P.W.9 father of the deceased presented a written report (Ext. 7) on 5.2.2005 at 00.10 A.M. to the effect that on 14.7.2004 his daughter Sudharani (deceased) had been given in marriage to the appellant. At the time of marriage P.W.9 had given a cash of Rs. 52,000/-, one gold chain, two gold rings and a cash of Rs. 5,000/- for purchasing dress. He had also given other gold ornaments and articles to his deceased daughter to lead her family life. After marriage, the appellant sent the deceased to bring cash of Rs. 10,000/- and accordingly, P.W.9 handed over Rs. 10,000/- to the appellant during November, 2004. Again, when the appellant compelled the deceased to bring Rs. 5,000/- for purchasing dress. He had also given other gold ornaments and articles to his deceased daughter to lead her family life. After marriage, the appellant sent the deceased to bring cash of Rs. 10,000/- and accordingly, P.W.9 handed over Rs. 10,000/- to the appellant during November, 2004. Again, when the appellant compelled the deceased to bring Rs. 20,000/-, the deceased made it clear that P.W.9 was not in a position to pay such amount and thereafter the appellant started assaulting the deceased in drunken condition. In such background, P.W.9 assured the appellant to give him money after arranging the same. In his report under Ext. 7, P.W.9 also indicated that the deceased was complaining before him that the brothers of the appellant were instigating the appellant to bring more money otherwise they were asking the appellant to leave the deceased. On 4.2.2005 at about 6.30 A.M. when P.W.9 was doing 'A' shift duty in Rourkela Steel Plant, his wife P.W.13 informed him that one Amar Mohapatra, brother of the appellant had informed her that their daughter Sudharani had committed suicide. Hearing this, P.W.9 asked P.W.13 to go to the spot. When P.W.13 went to the house of the appellant, he found the appellant sleeping and at her sight, the appellant left the place. Sometime after P.W.9 reached the spot and found the dead body of his daughter lying near the railway track with injuries on her body. At that point of time, the deceased was five months pregnant. Since the report revealed a cognizable case under Sections 498-A/304-B/302/201 read with Section 34 of the I.P.C. and Section 4 of the D.P. Act, 1961, P.W.12 made a Station Diary Entry and transmitted the case to I.I.C., Plant Site Police Station for registration. On 7.2.2005 the I.I.C. of Plant Site Police Station received the written report and transmitted the same to Mahila Police Station, Rourkela. On the same day at 7.30 P.M., P.W.19 registered the case and took up investigation. During course of investigation, she examined P.W.9 immediately. On the same day, she visited the spot, examined the witnesses. She arrested the accused persons. P.W.19 also prepared the spot map and visited the house of the appellant and seized streedhan property and left the same in zima. She also seized the wearing apparels of the deceased and received post-mortem report, sent exhibits to Scientific Officer, R.F.S.L., Sambalpur for chemical examination. She arrested the accused persons. P.W.19 also prepared the spot map and visited the house of the appellant and seized streedhan property and left the same in zima. She also seized the wearing apparels of the deceased and received post-mortem report, sent exhibits to Scientific Officer, R.F.S.L., Sambalpur for chemical examination. On 26.4.2005 P.W.19 made query to the Medical Officer, Panposh and on 11.5.2005, she handed over the charge of investigation to P.W.18. P.W.18 also examined the witnesses, made query to the Medical Officer, who conducted postmortem examination seeking his opinion as to whether the injuries sustained by the deceased on her spleen and kidney could be possible by kicks and fist blows. He received the query report and after supervision P.W.18 submitted charge sheet against the appellant and three of his relatives (since acquitted) for the offences punishable under Sections 498-A/304-B/302/201 read with Section 34 of the I.P.C. and Section 4 of the D.P. Act, 1961 before the learned S.D.J.M., Panposh, who committed the case to the Court of Sessions. The plea of the appellant was complete denial. 3. The prosecution in order to bring home the charges, examined as many as 19 witnesses, exhibited 19 documents and produced the wearing apparels of the deceased and her photographs, which have been marked as M.O.I to M.O.IV.P. Ws.1, 3 and 17 are the seizure witnesses. P.W.2 was a Deputy Chief Yard Master, Bandhamunda, working under railways submitted a written report vide Ext. 12 to P.W.19 about lying of the dead body on the railway track. P.Ws.4 and 7 are witnesses to the inquest. P.W.5 is a post occurrence witness, who had been to the spot and marked injuries on the body of the deceased. He also spoke about P.W.9 taking money from him to help his deceased daughter. P.W.6 is a neighbour of P.W.9, who had attended the marriage between appellant and deceased. P.W.8 is a neighbour, who heard about the occurrence from the brother of the deceased. P.W.9 is the father of the deceased and is the informant and the F.I.R. was marked as Exhibit-7 at his instance. P.W.10 is the Medical Officer, who conducted the autopsy and submitted his report vide Ext. 10. P.W.11 is the Scientific Officer of D.F.S.L., Rourkela, who visited the house of the deceased and collected some sample earth from the bed room. P.W.10 is the Medical Officer, who conducted the autopsy and submitted his report vide Ext. 10. P.W.11 is the Scientific Officer of D.F.S.L., Rourkela, who visited the house of the deceased and collected some sample earth from the bed room. P.W.12 is the O.I.C., Bandhmunda G.R.P.S., who on receipt of information from P.W.2, registered U.D. Case No. 1 of 2005, made inquest over the dead body, sent the dead body for post mortem examination and on receipt of written report from P.W.9 (informant), sent the report to Plant Site Police Station for registration. P.W.13 is the mother of the deceased and wife of P.W.9. P.Ws.14 and 15 are the witnesses, who turned hostile during their examination in the court. P.W.16 is the house owner in whose house the deceased was last staying with the appellant before her death. She is also the mediator of the marriage between the appellant and deceased. P.W.18 is the I.O., who took charge of investigation from P.W.19 and partly investigated the case and submitted charge sheet. P.W.19 is the I.I.C., Mahila Police Station, who investigated into the case. In the examination under Section 313 Cr.P.C., the appellant except admitting his marriage to the deceased and factum of staying together with other three accused persons, who have since been acquitted and factum of dead body of the deceased lying at the spot near railway track and the factum of deceased Sudharani remaining depressed, denied rest of the questions put to him. From the side of the defence, one Mamata Barik was examined as D.W.1. But the defence did not exhibit any documents. As indicated earlier on completion of trial while three family members of the appellant were acquitted of all the charges, appellant was found guilty only for commission of offence punishable under Section 302 of the I.P.C. As indicated earlier, the appellant was also acquitted of the charges under Sections 498-A/304-B/201 read with Section 34 of the I.P.C. and Section 4 of the D.P. Act. 4. Ms. N. Agrawal, learned counsel for the appellant submitted that there was no eye-witness to the occurrence and the conviction was solely based on circumstantial evidence. She contended that such conviction was illegal as chain of evidence was not complete for arriving at a conclusion that was inconsistent with the innocence of the appellant. 4. Ms. N. Agrawal, learned counsel for the appellant submitted that there was no eye-witness to the occurrence and the conviction was solely based on circumstantial evidence. She contended that such conviction was illegal as chain of evidence was not complete for arriving at a conclusion that was inconsistent with the innocence of the appellant. Secondly, she submitted that P.W.10, who conducted autopsy, clearly opined that the injuries caused by the deceased could be possible if a person forcefully fell on the railway track and came in contact with the projected stones. Therefore, according to her, this was a clear case of suicide. For advancing such argument, she relied on the deposition of D.W.1., who stated that in the morning at about 4.30 A.M. she had seen the deceased going towards the railway track and afterwards D.W.1 had heard that the deceased had died. Lastly, in the alternative, Ms. Agrawal contended that in the background of the fact that the appellant had no criminal antecedent and that he had no motive to liquidate the deceased in view of his acquittal of the charges under Sections 498-A/304-B/201 read with Section 34 of the I.P.C. and Section 4 of the D.P. Act, 1961 and in view of nature of evidence of P.Ws.16 and 19, the impugned conviction of the appellant for committing offence under Section 302 of the I.P.C. was bad in law and at best the case could be one under Part I of Section 304 of the I.P.C. She further submitted that the appellant has been in custody since 7.2.2005. 5. Mr. J. Katikia, learned Additional Government Advocate on the other hand vehemently defended the judgment of the learned court below and contended that as per the evidence of P.W.10, it was clear that it is a case of homicide not suicide and the chain of circumstances as discussed by the learned court below was complete and that the learned court below had rightly convicted the appellant under Section 302 of the I.P.C. and the same required no interference by this Court. 6. Perused the L.C.R. At the outset we have to keep in mind that the appellant has been acquitted of charges under Sections 498-A/304-B/302/201 read with Section 34 of the I.P.C. and Section 4 of the D.P. Act and we have only to see whether the conviction of the appellant under Section 302 of the I.P.C. is justified. 6. Perused the L.C.R. At the outset we have to keep in mind that the appellant has been acquitted of charges under Sections 498-A/304-B/302/201 read with Section 34 of the I.P.C. and Section 4 of the D.P. Act and we have only to see whether the conviction of the appellant under Section 302 of the I.P.C. is justified. 7. Since Ms. N. Agrawal, learned counsel for the appellant relying on the evidence of D.W.1 and P.W.10 submitted that the factual scenario unerringly points to commission of suicide by the deceased, we have to first decide the issue whether this is a case of homicide or suicide. For this, we straight way refer to the evidence of P.W.10. P.W.10 in his deposition has stated that during autopsy he found the following external injuries:-- "i. One incised wound 3" x 1/2" x scalp deep near the occipital on right side. ii. One lacerated wound 1"x1" over left eye brow scalp deep. iii. Two abrasions 1/2" x 1/2" on the fore head. iv. Incised wound 1" x 1" x scalp deep on the mid of the forehead. v. One abrasion 2" x 2" on the left flank. vi. One abrasion 3" x 1/2" on the right flank. vii. Abrasion 4 Nos. 1" x 1/2" on the left back. viii. Linear abrasions 1/4" x 1/4" nail marks on left arm, left wrist, left hand, dorsal aspect. ix. One bruise 10" x 5" on the left thigh lateral aspect bluish black in colour with 7 Nos. of abrasions each measuring 1" x 1"on the bruise." In his examination-chief, he further pointed out that all the above noted injuries were ante mortem in nature. He further stated in his examination-in-chief that there was rupture of spleen and left kidney with blood clots present. He opined that the death was caused due to the above noted injuries. He also made it clear that the time since death was 24 to 48 hours. It is important to note here that the alleged occurrence took place on 4.2.2005 and the autopsy was carried out by P.W.5 on 5.2.2005. He proved the autopsy report which has been marked as Ext. 10. In the cross-examination he stated that except injury Nos. He also made it clear that the time since death was 24 to 48 hours. It is important to note here that the alleged occurrence took place on 4.2.2005 and the autopsy was carried out by P.W.5 on 5.2.2005. He proved the autopsy report which has been marked as Ext. 10. In the cross-examination he stated that except injury Nos. (i),(iv) and (viii), other injuries could be possible if a person forcefully fell on the railway track and came in contact with projected stones and iron plate fitted in the track. According to him injury Nos. (i) and (iv) can be caused by any sharp edged weapon and are also possible by coming in contact with sharp spring of railway track. In his further examination-in-chief on recall he stated that rupture of kidney and spleen could occur due to kicks and fist blows and the death of the deceased could occur due to such rupture. This statement of P.W.10 is based on his report which he proved as Ext. 10. In further cross-examination on 5.9.2006, P.W.10 stated that the internal injuries like rupture of kidney and spleen could be possible if a person forcefully fell on the railway track and came in contact with projected stones and also could be possible on fall on the out-side of cement sleepers fitted to the track. According to P.W.10, external injury No. (i) could cause profuse bleeding. In further examination on recall, P.W.10 stated that all the injuries noticed by him on the person of the deceased could be possible by a single fall followed by rolling on the railway track. It is important to note here that from the side of defence, no suggestion has been given to P.W.10 to the effect that notwithstanding all these injuries the present case can be one of suicide. Secondly, P.W.10 has himself nowhere indicated it to be a case of suicide. Rather, he has made it clear that all the external injuries are ante mortem in nature and injury Nos. (i) and (iv) of the external injuries can be caused by sharp edged weapon. In such background, it is difficult to accept the contention of Ms. Agrawal that the present one is a case of suicide. Rather, he has made it clear that all the external injuries are ante mortem in nature and injury Nos. (i) and (iv) of the external injuries can be caused by sharp edged weapon. In such background, it is difficult to accept the contention of Ms. Agrawal that the present one is a case of suicide. Further, it is important to note that as per evidence of P.Ws.4, 5 and 9 it is clear that the dead body was not found on the railway line but by the side of railway track and P.W.10 has nowhere stated that the deceased suffered injuries after coming into contact with a running train. In fact, the defence has also not given any suggestion to P.W.10 on the above line. This coupled with the fact that P.W.10 clearly stated that external injury No. (i) can cause profuse bleeding and being ante mortem in nature, the evidence of P.W.10 totally eliminates the possibility of deceased dying on account of suicide in an accident with a running train. Therefore, the present case is a case of homicide not suicide. The evidence of D.W.1 which as per settled principle of law cannot be treated differently from the evidence of prosecution witnesses also nowhere helps the appellant, as there exists a lot of loose ends in the evidence of D.W.1. As per the evidence of D.W.1, the occurrence took place in early part of a winter night. D.W.1 has stated that while she was plucking flowers at 4.30 A.M. obviously on 4.2.2005, she found deceased going towards railway track. It is strange that though D.W.1 was in visiting terms with her husband's house and though the deceased crossed her at a very short distance, D.W.1 did not ask the deceased as to where she was going in darkness and for what purpose? This, to say the least is a strange conduct on the part of D.W.1 as she was not a stranger to the family of in-laws of the deceased. As per normal human behavior D.W.1 should have enquired from the deceased as to where she was going in the darkness and for what purpose? Further the story of D.W.1 which impliedly meant that the deceased was going to commit suicide cannot be believed as there is no evidence to show that the deceased suffered the injuries on account of collision with a running train. Further the story of D.W.1 which impliedly meant that the deceased was going to commit suicide cannot be believed as there is no evidence to show that the deceased suffered the injuries on account of collision with a running train. Thus, it is reiterated that it is a clear case of homicide and not suicide. 8. Now we shall address ourselves to the argument of Ms. Agrawal, learned counsel for the appellant with regard to chain of circumstantial evidence being not complete so as to the warrant conviction of appellant under Section 302 of the I.P.C. In this context, we have to keep in mind that the following conditions must be fulfilled before a case against an accused can be said to be fully established on the basis of circumstantial evidence:-- "(1) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) The circumstances should be of a conclusive nature and tendency, (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." All these have been laid down in the case of Sharad Birdhichand Sarda V. State of Maharashtra, reported in, (1984) 4 S.C.C. 116 . 9. For this purpose, we have to scan the evidence of P.Ws. 2, 4, 5, 9, 13 and 16. P.W.2 in his deposition has made it clear that in the month of February, 2005 at 12.30 P.M. he got information from Chakradharpur that there was a female dead body aged about 30 years lying at kilometer No. 410/24S-26S. He made the diary entry and sent the information vide Ext. 12 to Bandhamunda G.R.P.S. In the cross-examination his deposition relating to lying of female dead body as stated in the examination-in-chief remains undemolished. He made the diary entry and sent the information vide Ext. 12 to Bandhamunda G.R.P.S. In the cross-examination his deposition relating to lying of female dead body as stated in the examination-in-chief remains undemolished. P.W.4 in his examination-in-chief has stated that on 4.2.2005 while he was in his shop at Nayabazar he got a telephonic message from Radha Sahu that her elder sister Sudharani has been killed by her in-laws and her dead body was thrown at the railway track side. In his cross-examination P.W.4 has categorically stated that he got information at 8.10 A.M. and reached the spot at 9.00 A.M. After his arrival, police came to the spot. In his examination-in-chief he also made it clear that the police conducted inquest over the dead body of the deceased and prepared inquest report marked as Ext. 6. His evidence makes it clear that he reached the spot at 9.00 A.M. in the morning of 4.2.2005 and found the dead body at railway track side. P.W.5 in his examination-in-chief has stated that he got the information in the morning of 4.2.2005 that the dead body of Sudharani was lying at the railway track side. He went to the spot and marked injuries on the body of the deceased. Though in his cross-examination, he has stated that after duty hours first he went to the house of Sudharani's in-laws then he went to the spot, however, his evidence relating to he getting information of occurrence during morning hours of 4.2.2005 remains undemolished. P.W.9 in his examination-in-chief after reiterating his version in the F.I.R. stated that on 4.2.2005 while he was on duty he was informed regarding the death of the deceased. At 9.00 A.M., he (P.W.9) first went to the house of in-laws of his deceased daughter and from there he came to know that his daughter's dead body was lying besides the railway track. On visiting the spot he found his daughter lying dead with injury on her head, above her left side eye and her right palm. In his cross-examination P.W.9 categorically stated that on that day obviously meaning on 4.2.2005 he left the department/duty in between 8.30 to 9.00 A.M. and went to the house of the appellant where he was informed that the daughter's dead body was lying besides the railway track. In his cross-examination P.W.9 categorically stated that on that day obviously meaning on 4.2.2005 he left the department/duty in between 8.30 to 9.00 A.M. and went to the house of the appellant where he was informed that the daughter's dead body was lying besides the railway track. He further stated that P.W.13 was informed by the accused persons that their daughter was missing since last night. He also stated that it was not correct to say that since he had given marriage of his daughter to a vegetable vendor, in a state of depression she might have committed suicide. Nothing much has been elicited by the cross-examination of P.W.9 and his statement relating to leaving his duty and reaching his daughter's house at 9.00 A.M. and thereafter going to the spot remains undemolished. Further, his statement that (P.W.13) his wife was informed by the accused persons that the deceased was missing since last night has been corroborated by the deposition of P.W.13 that on 4.2.2005 at 6.00 A.M. Atal Kumar Mohapatra, who happens to be the elder brother of the appellant telephoned her informing her that the deceased was missing. In the cross-examination P.W.13 has also made it clear that on receiving information over phone she called one Ashok Naik requesting him to bring P.W.9 with him. She has further stated that after receiving telephone call she reached Nayabazar at 6.10 to 6.20 A.M. In her cross-examination she has also stated that when she reached Nayabazar it was not a fact that all the accused persons were engaged in search of the deceased "who was missing since last night". P.W.16 in his examination-in-chief has stated that the accused persons were tenants and she was the mediator of the marriage between the deceased and the appellant. After marriage she had seen many a time deceased in a depressed condition. On 3.2.2005 she heard some sound from the house of the accused persons. Both the appellant and deceased had quarreled. In the night, deceased was in the house of the appellant. On the next day morning the wife of Atal, who happens to be the elder brother of the appellant informed her that the deceased was found missing. At about 8.00 A.M. she was further informed that the dead body was found lying near the railway track adjacent to Hanuman Mandir. On the next day morning the wife of Atal, who happens to be the elder brother of the appellant informed her that the deceased was found missing. At about 8.00 A.M. she was further informed that the dead body was found lying near the railway track adjacent to Hanuman Mandir. In her cross-examination she has stated at the time of the incident, both Sudharani (deceased) and her husband (appellant) were staying in the same house. Though in the examination-in-chief she stated that she found the deceased to be depressed, however in the cross-examination she could not say the reason for such depression of the deceased. She denied a suggestion that the deceased and the appellant had not quarreled in the previous night and that she was deposing falsehood. It may be indicated her that while scanning the evidence of P.Ws.2, 4, 5, 9, 13 and 16 we have deliberately not referred to those part of their statements involving demand of dowry etc. as the appellant has been acquitted from the charges under Sections 498-A/304-B/201 of the I.P.C. read with Section 34 of the I.P.C. and Section 4 of the D.P. Act, 1961. 10. An analysis of the evidence of P.W.16 makes it clear that in the previous night there was quarrel between the appellant and the deceased and as per the evidence of P.Ws.9 and 13, the deceased went missing since previous night and ultimately as per the evidence of P.Ws. 2, 4, 5, 9 & 13, her dead body was found in the morning hours of 4.2.2005. Secondly, as per the evidence of P.W.16, it is clear that the appellant and the deceased were last seen together in the house in the previous night. In such circumstances, the appellant being the husband of the deceased was the best person to know about how his wife went missing. To this aspect there is a deafening silence from the side of the appellant. Further, there is no plea from the side of the appellant that he was not there in the house at the night. Therefore, in our considered opinion the appellant has failed to discharge the burden on him as he is required to discharge under Section 106 of the Evidence Act in support of his innocence. Further, there is no plea from the side of the appellant that he was not there in the house at the night. Therefore, in our considered opinion the appellant has failed to discharge the burden on him as he is required to discharge under Section 106 of the Evidence Act in support of his innocence. This coupled with the fact that the deceased was found in the next day morning by the side of railway track with several external injuries out of which injuries Nos. (i) and (iv) were incised wounds and P.W.10 in his cross-examination having clearly stated that external injury No. (i) could result in profuse bleeding and that there was rupture of spleen and left kidney and that all injuries were ante mortem in nature and further that the deceased died on account of shock and haemorrhage due to the above noted injuries; all these above facts unerringly point a finger to the culpability of the appellant in liquidating his wife. The alleged occurrence took place on 4.2.2005. The doctor (P.W.10) conducted autopsy on 5.2.2005 clearly saying that time since death to be 24 to 48 hours. This is also a chain in the circumstances pointing to the guilt of appellant. Further, it has nowhere come out in evidence that the deceased suffered fatal injuries by coming in contact with the running train. We have already rejected the evidence of D.W.1 implying that the deceased was going towards the railway line for committing suicide. All the above noted discussions as a whole clearly establish guilt of the appellant in a conclusive manner. Thus, according to us the chain of circumstance is complete and does not leave any reasonable ground for the conclusion that the appellant was innocent particularly when proved fact points out the present case to be one of homicide not suicide. 11. In the alternative, Ms. Agrawal has argued that the present case would at best come under Part-1 of 304 of the I.P.C. and not under Section 302 of the I.P.C. In support of her argument, she relied on the evidence of P.Ws.16 and 19 and on Exception-4 to Section 300 of the I.P.C. to contend that in the present case culpable homicide could not be described as murder as it was committed pursuant to a sudden quarrel in the heat of passion resulting in sudden fight. Additionally, she submitted that with the acquittal of the appellant from charges under Sections 498-A/304-B/201 of the I.P.C. read with Section 34 of the I.P.C. and Section 4 of the D.P. Act, 1961, one could reasonably say there existed no motive for the appellant to commit the alleged crime. Further, she harped on the fact that the appellant had no criminal antecedents. A scanning of evidence of P.W.16 once again indicates that on the previous night there was a quarrel between the husband (appellant) and wife (deceased). As per the evidence of P.W.19 the appellant was habituated to drinks, which came to light when she verified the antecedent of the appellant. This statement of P.W.19 remains undemolished during her cross-examination. Thus, in the background of absence of any motive and in absence of any criminal antecedent but with a history of habitual drunkenness, it would be reasonable to infer that pursuant to sudden quarrel in the heat of passion and without any pre-meditation, the appellant assaulted the deceased. In such background, we consider it a fit case where the appellant should be given benefit of Exception-4 of Section 300 of the I.P.C. Accordingly, we set aside the conviction under Section 302 of the I.P.C. and we convict the appellant under Part-I of Section 304 I.P.C. and sentence him to undergo rigorous imprisonment for a term of 10 years. In case appellant has already undergone incarceration for a period of 10 years, he should be released forthwith from custody if he is not wanted in connection with any other criminal case. 12. Criminal Appeal is partly allowed. Vinod Prasad, J. - I agree. Final Result : Partly Allowed