JUDGMENT : V.K. TAHILRAMANI, J. 1. This appeal is preferred by the appellant - convicted accused against the judgment and order dated 21.05.2011 passed by the learned Extra Joint Ad-hoc Additional Sessions Judge, Thane in Sessions Case No. 63 of 2010. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of I.P.C. and sentenced him to suffer imprisonment for life and fine of Rs. 10000/-, in default S.I. for one year. 2. The prosecution case briefly stated, is as under: (a) Deceased Sharada was the daughter of PW 1 Bhausaheb. Sharada was married to the appellant in November 2008. Thereafter, she went to reside with her husband at Kahler, Taluka Bhiwandi. Sharada told her father that her husband not behaving properly with her. This fact was brought to the notice of her in-laws. Bhausaheb pacified his daughter Sharada. He then took his daughter to his house. (b) On 25.10.2009, Bhausaheb took his daughter back to the house of the appellant at Kahler. The door of the house of the appellant was locked. Sharada, within the short time, traced her husband i.e the appellant and both came back to the house. Sharada told Bhausaheb that the appellant was angry and he was abusing. Sharada requested the appellant to open the door of the house. The appellant and Sharada entered the house. At that time, the appellant was assaulting Sharada on the face. Bhausaheb requested the appellant not to assault Sharada. At that time, the appellant threatened Bhausaheb. Bhausaheb went to the upper floor of the building i.e. to the house of the landlord as per the request of his daughter. When Bhausaheb came down, he saw that the door of the house was locked from outside. He saw his daughter lying on the ground and she was found dead. Bhausaheb then lodged F.I.R. Ex. 18. Thereafter, investigation commenced. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellant under Sections 302, 504 and 506 (ii) of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellant under Sections 302, 504 and 506 (ii) of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal preferred by the appellant against his conviction and sentence. 4. We have heard the learned counsel for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant assaulted his wife Sharada and caused her death. 5. The conviction of the appellant is mainly based on the evidence of PW 1 Bhausaheb who is the father of deceased Sharada. Bhausaheb has stated that Sharada was married to the appellant in November 2008. Thereafter, she went to reside with the appellant at Kahler, Taluka Bhiwandi. Sharada told her father that her husband not behaving properly with her. This fact was brought to the notice of her in-laws. Bhausaheb pacified his daughter Sharada. He then took his daughter to his house. PW 1 Bhausaheb has further stated that on 25.10.2009, he took his daughter back to the house of the appellant at Kahler. The door of the house of the appellant was locked. Sharada, within the short time, traced her husband i.e. the appellant and both came back to the house. Sharada told Bhausaheb that the appellant was angry and he was abusing. Sharada requested the appellant to open the door of the house. The appellant and Sharada entered the house. At that time, the appellant was assaulting Sharada on the face. Bhausaheb requested the appellant not to assault Sharada. At that time, the appellant threatened Bhausaheb. Bhausaheb went to the upper floor of the building i.e. to the house of the landlord as per the request of his daughter. When Bhausaheb came down, he saw that the door of the house was locked from outside. He saw his daughter lying dead. Bhausaheb requested the appellant not to assault Sharada. At that time, the appellant threatened Bhausaheb. Bhausaheb went to the upper floor of the building i.e. to the house of the landlord as per the request of his daughter. When Bhausaheb came down, he saw that the door of the house was locked from outside. He saw his daughter lying dead. Bhausaheb then lodged F.I.R. Exh. 18. Nothing has been elicited in cross-examination of PW 1 Bhausaheb to cause us to disbelieve his evidence. The evidence of PW 1 Bhausaheb clearly shows that the appellant assaulted Sharada and within a very short time thereafter, Sharada was found dead with injuries on her person. 6. That Sharada died a homicidal death is proved through the evidence of PW 9 Dr. Avinash Dhanavade who conducted the postmortem on the dead body of Sharada. On external examination, Dr. Dhanavade found the following injuries:- 1. C.L.W. 1 x ½ x ½ inch, brain deep, over right parieto temporal region; 2. Contusion over left cheek of size 4 x 3 cm; 3. Left black eye. On internal examination, fracture was seen over right parieto temporal region. Dr. Dhanavade also noticed laceration over right parieto temporal region corresponding to injury No. 1 with haematoma. According to Dr. Dhanavade, the cause of death was due to cardio respiratory failure due to hemorrhagic shock due to fracture skull bone and injury to brain by hard and blunt object. 7. Mr. Kotwal, the learned counsel for the appellant, submitted that even if it is accepted that the act of the appellant of assaulting his wife Sharada resulted in her death, the case would not fall under Section 302 of I.P.C. but it would fall under Section 304-II of I.P.C. He pointed out that the evidence on record shows that when the incident occurred, a quarrel was going on between the appellant and his wife Sharada which has been deposed to by PW 5 Tara. Tara has stated that she was at her shop when the appellant and his deceased wife were quarreling. The appellant was abusing and assaulting his wife. Then the appellant took her in the room and closed the door. Thereafter, she saw the dead body of Sharada in the room. Mr. Kotwal pointed out that there is only one major injury i.e. C.L.W. 1 x ½ x ½ inch brain deep over right parieto temporal region. The appellant was abusing and assaulting his wife. Then the appellant took her in the room and closed the door. Thereafter, she saw the dead body of Sharada in the room. Mr. Kotwal pointed out that there is only one major injury i.e. C.L.W. 1 x ½ x ½ inch brain deep over right parieto temporal region. He pointed out that other two injuries are minor in nature i.e. contusion over left cheek and left black eye. He further submitted that the left black eye is a result of injury No. 1. From the nature of the injuries, Mr. Kotwal submitted that these show that it was not the intention of the appellant to cause the death of his wife Sharada. He submitted that if the appellant had intended to cause the death of his wife, he would not have stopped after giving just one blow on the head but he would have continued to assault her. The fact that he did not do so shows that he did not have any intention to kill his wife. Mr. Kotwal submitted that the assault was not pre-meditated or pre-planned but it happened on the spur of the moment in a fit of anger. Mr. Kotwal submitted that looking to the fact that the incident occurred during the sudden quarrel and looking to the nature of injuries, the case would be covered under Exception 4 to Section 300 of I.P.C. and would thus, be covered by Section 304II of I.P.C. 8. To bring a case within Exception 4 to Section 300 of I.P.C., all the ingredients mentioned it must be found. It is to be noted that the word 'fight' occurring in Exception 4 to Section 300 of I.P.C. is not defined in I.P.C. It takes two to make a fight. Heat of passion requires that there must be no time for passion to cool down. In the present case, the evidence on record shows that a quarrel was going on between the appellant and the deceased. There was no-premeditation. However, for the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no pre-meditation. It must further be shown that the offender had not taken any undue advantage or acted in a cruel or unusual manner. There was no-premeditation. However, for the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no pre-meditation. It must further be shown that the offender had not taken any undue advantage or acted in a cruel or unusual manner. The fact that Sharada had sustained only one major injury and remaining two injuries are minor in nature shows that the appellant did not take any undue advantage or act in a cruel or unusual manner. Looking to these facts, we are of the considered opinion that the case falls under Section 304-II of I.P.C. 9. Considering the evidence on record, we are of the view that Exception 4 to Section 300 of I.P.C. applies to the facts of this case and the appropriate conviction would be under Section 304-II of I.P.C., hence, the conviction under Section 302 of I.P.C. is set aside, instead, the appellant is convicted under Section 304-II of I.P.C. In our view, custodial sentence of 7 years rigorous imprisonment and fine of Rs. 10000/-, in default simple imprisonment for one year would meet the ends of justice. 10. The appeal is partly allowed to the aforesaid extent.