JUDGMENT : Asha Arora, J. 1. The present appeal is directed against the Judgment and Order of conviction and sentence dated 24th August, 2000 rendered by the learned Sessions Judge, Purulia in Sessions Trial No. 2 of 1999 arising out of Sessions Case No.33 of 1998 whereby the appellant/accused Budhu Singh Sardar was convicted for the offence punishable under Section 302 of the Indian Penal Code (for short referred to as the IPC) and sentenced to suffer imprisonment for life with a fine of Rs.2000/- in default of which he was directed to suffer rigorous imprisonment for four months for the aforesaid offence. 2. Prosecution version sans unnecessary details is that on 26th March 1994 at 00:25 hours one Fakir Singh Sardar of Village-Kultanr, P.S.- Boro, District- Purulia lodged a written complaint at Boro P.S. alleging that on 25th March 1994 his uncle Budhu Singh Sardar (appellant) came to him for some rice and money. As the complainant was busy, he told the accused/appellant to come later. It is the further case of prosecution that the appellant returned home in the evening with Biswanath Singh Sardar and at about 22:00 hours he started abusing in filthy language. Kalachand Singh Sardar and his wife Abala Singh Sardar (deceased victims) opposed whereupon the appellant shot an arrow in the chest of Abala Singh Sardar. Due to fear the complainant rushed to his house. After sometime complainant came out on hearing a loud sound and found Kalachand Singh Sardar lying dead with gun shot injury. 3. On the basis of the aforesaid written complaint of Fakir Singh Sardar (PW-1), S.I. Kalibaran Ghosh (PW-15) registered Boro P.S. Case No. 15/94 dated 26-03-1994 under Section 302 of IPC and 25/27 of the Arms Act against the accused/appellant Budhu Singh Sardar. Investigation into the case culminated in the submission of the charge sheet under Section 302/34 of the IPC against accused/appellant Budhu Singh Sardar and Biswanath Singh Sardar. 4. The case being a Sessions triable one was committed to the Court of the Sessions Judge, Purulia for trial and disposal. Charge was framed against both the accused persons under Section 302 read with Section 34 of the IPC for committing the murder of deceased Kalachand Singh Sardar and Abala Singh Sardar. Each of the accused pleaded not guilty to the indictment and claimed to be tried. Charge was framed against both the accused persons under Section 302 read with Section 34 of the IPC for committing the murder of deceased Kalachand Singh Sardar and Abala Singh Sardar. Each of the accused pleaded not guilty to the indictment and claimed to be tried. In course of trial prosecution examined as many as 15 witnesses and exhibited several documents. The defence of the accused before the Trial Court was innocence and complete denial of the prosecution story. After conclusion of the trial the learned Sessions Judge, by the judgment and order dated 24th August, 2000, convicted the accused/appellant Budhu Singh Sardar for the murder of deceased Abala Singh Sardar and sentenced him to imprisonment for life and to pay fine of Rs. 2000/- in default of which he was sentenced to suffer rigorous imprisonment for four months for the charge under Section 302 of the IPC while accused Biswanath Singh Sardar and Budhu Singh Sardar were acquitted from the charge under Section 302/34 of the IPC for causing the murder of deceased Kalachand Singh Sardar. 5. The point for consideration is whether the conviction and sentence of the appellant Budhu Singh Sardar for the charge under Section 302 of the IPC is sustainable. 6. Before proceeding to advert to the evidence led by prosecution in support of its case, it is significant to mention that learned Counsel appearing for the appellant mainly argued that the charge under Section 302 of the I.P.C. attributed to the accused/appellant is not justified. According to him, the appellant’s case falls within Exception 4 to Section 300 of the I.P.C. Learned Counsel submitted that there was no intention to kill and the incident was the outcome of quarrel. So the appropriate offence for which the appellant can be held liable is one under section 304 of the IPC. 7. Learned Advocate representing the State/respondent countered that it is a clear case of murder as four arrows were thrown at the deceased Abala Singh Sardar while the fourth one pierced her causing fatal injuries leading to her death. The further submission on behalf of State/respondent is that the seizure list dated 26-03-1994 (Exhibit-3/3) shows recovery and seizure of three arrows from the place of occurrence while one arrow was removed from the body of deceased by the Autopsy Surgeon Dr. A.K. Hazari (PW8) which was seized vide seizure list dated 27-03-1994. The further submission on behalf of State/respondent is that the seizure list dated 26-03-1994 (Exhibit-3/3) shows recovery and seizure of three arrows from the place of occurrence while one arrow was removed from the body of deceased by the Autopsy Surgeon Dr. A.K. Hazari (PW8) which was seized vide seizure list dated 27-03-1994. According to the learned advocate for the State no case could be made out for granting the benefit of Exception 4 to section 300 of the IPC to the appellant. 8. It is not in dispute that the death of deceased Abala Singh Sardar was homicidal in nature. The medical evidence of PW- 8 Dr. A.K. Hazari who held post mortem examination on the dead body of deceased Abala Singh Sardar clearly speaks of the cause of death due to shock and haemorrhage as a result of the injuries noted which were ante-mortem and homicidal caused due to arrow injury. The incident has also not been disputed. The only point for determination is whether the appellant’s conviction for the charge of murder is justified or whether the act attributed to him would constitute a lesser offence under Section 304 of the IPC. This issue needs to be determined with reference to the evidence on record. 9. PW-1, Fakir Singh Sardar is the complainant and an ocular witness. He has testified in his evidence that on 25-03-1994 at about 7:00 a.m. when he was repairing his house, his uncle Budhu Singh Sardar came to him for one kilogram of rice and Rs. 5/-. PW 1 told Budhu that he would give him after sometime. Budhu Singh Sardar then went out of the house. In the evening at about 6:00 p.m. Budhu returned with Biswanath Singh Sardar and then he (Budhu) abused PW 1 and his wife as well as Kalachand and Abala Singh Sardar. Thereafter, Budhu shot arrow at Abala Singh Sardar. Due to fear PW 1 went to his room. On hearing a sound from outside PW 1 came out of the house and found his uncle Kalachand lying dead with blood coming out from his chest. He also found Abala Singh Sardar lying on the ground with arrow on her chest. Hearing the cries of PW 1 the village people came and he (PW1) narrated the incident to them. On hearing a sound from outside PW 1 came out of the house and found his uncle Kalachand lying dead with blood coming out from his chest. He also found Abala Singh Sardar lying on the ground with arrow on her chest. Hearing the cries of PW 1 the village people came and he (PW1) narrated the incident to them. We get from the evidence of PW 1 that the incident was witnessed by his wife Shibani, (examined as PW10), Namita (examined as PW 6), Narahari and Chapi. According to PW 1 Narahari and Chapi are now dead. Leading us through the cross-examination of PW 1 learned Advocate for the appellant tried to impress that the incident was the outcome of quarrel between the parties and that it was not a premeditated attack upon the deceased. 10. PW 2 is a co-villager who is a post occurrence witness. When he reached the place of occurrence he saw Kalachand lying dead and his wife was also lying on the ground with an arrow pierced in her chest. 11. PW 3 was tendered for cross-examination which was declined by defence. 12. PW 4 is the constable who identified the two dead bodies to the doctor who held post mortem examination. 13. PW 5 is the daughter of deceased Kalachand and Abala Singh Sardar. She did not witness the incident as she was in her father-in-law’s house at the relevant time. 14. PW 6 Namita Singh Sardar is yet another daughter of deceased victims. She is an ocular witness who corroborated the evidence of PW 1 regarding the incident on all material particulars. She stated in her evidence that Budhu Singh Sardar started abusing them in the evening and when her mother and father objected to such abuses, he came with bow and arrows and attempted to shoot arrow at Shibani. According to PW 6 the arrow hit her mother when she tried to save Fakir. She further stated that Budhu threw four arrows and one arrow hit her mother. Her father then caught hold of Budhu and there was scuffling between them. Thereafter sound of gun was heard and she saw her father lying dead. 15. PW 7 is a co-villager who was declared hostile by prosecution. 16. PW 8 is the medical officer who held post mortem examination on the dead body of the two deceased victims. 17. Her father then caught hold of Budhu and there was scuffling between them. Thereafter sound of gun was heard and she saw her father lying dead. 15. PW 7 is a co-villager who was declared hostile by prosecution. 16. PW 8 is the medical officer who held post mortem examination on the dead body of the two deceased victims. 17. PW 9 is the S.I. of Police who witnessed the seizure of arrows from the place of occurrence. 18. PW 10 Shibani Singh Sardar is another material ocular witness. She is the wife of the complainant. This witness has also corroborated the evidence of PW 1 and PW 6 regarding the incident. The relevant portion of the evidence of PW 10 is quoted hereunder: “……..On that day when I along with my husband were repairing the walls of our house with mud in the morning, Budhu asked Rs. 5/- from my husband and asked from me a kilogram of rice. We failed to give the same to him, as we were working at that time. Budhu Singh Sardar left the place thereafter saying “Aschhi”. Thereafter, he returned after sunset along with Biswanath Singh. Thereafter he took his meal with Biswanath after cooking meat and abused us in filthy language. Thereafter my ‘Chhoto Shashur’ and ‘Chhoto Shashuri’ opposed them not to abuse us. My Chhoto Shashur’s name is Kalachand and Chhoto Shashuri’s name is Abala. Then Budhu Singh came out with bow and arrows and threw arrows towards Abala. Three arrows missed the chance but one arrow hit Abala. Then Abala fell down on the ground. Thereafter, Kalachand caught hold of Budhu and there was scuffling between them. Then my husband Fakir Singh entered the room out of fear. Then Budhu Singh called Biswanath and told that he was being killed (Amakey Maralo, Amakey Maralo). Then, I heard a sound. Thereafter Budhu Singh and Biswanath left the place. We saw that two dead-bodies were lying one in the Khamar and one in the courtyard. The dead-body of Abala was lying in the Khamar and the dead-body of Kalachand was lying in the courtyard.” 19. PW 11 is a co-villager who did not witness the incident. 20. PW 12 is a seizure witness. 21. PW 13 and PW 14 are also co-villagers who came to the place of occurrence on hearing hue and cry. The dead-body of Abala was lying in the Khamar and the dead-body of Kalachand was lying in the courtyard.” 19. PW 11 is a co-villager who did not witness the incident. 20. PW 12 is a seizure witness. 21. PW 13 and PW 14 are also co-villagers who came to the place of occurrence on hearing hue and cry. Though they did not witness the incident, they saw the dead bodies of deceased Kalachand Singh Sardar and Abala Singh Sardar on reaching the place of occurrence. 22. PW 15 is the Investigating Officer of this case. 23. The ocular version of the incident as testified by PW 1, PW 6 and PW 10 is corroborated by the medical evidence of the autopsy surgeon (PW 8). The seizure of the weapon of offence that is, the seized arrows lends tremendous credence to the eye witnesses’ account of the incident. The evidence of the three eye witnesses hereinabove discussed is credible, unimpeachable and convincing. We have no hesitation to hold that prosecution succeeded in proving beyond any shadow of doubt that the appellant was responsible for the homicidal death of deceased Abala Singh Sardar. 24. Coming to the plea of the appellant/accused that the offence in question was culpable homicide not amounting to murder, let us first refer to Exception 4 to section 300 which reads thus: “Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation – It is immaterial in such cases which party offers the provocation or commits the assault first.” It is clear that to invoke Exception 4 to section 300 of the IPC four requirements must be proved namely, (i) it was a sudden fight; (ii) there was no premeditation ; (iii) the act was done in a heat of passion (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of quarrel is not relevant nor is it relevant who offered provocation or started the assault. In the case before us there is nothing in the evidence to show that the appellant had any predetermined motive for the commission of the offence. Evidently the offence was committed by the appellant in the heat of passion without premeditation. The cause of quarrel is not relevant nor is it relevant who offered provocation or started the assault. In the case before us there is nothing in the evidence to show that the appellant had any predetermined motive for the commission of the offence. Evidently the offence was committed by the appellant in the heat of passion without premeditation. The cross-examination of PW 1 and PW 10 reveals that the incident was preceded by a quarrel between the parties. It has emerged in the evidence of these two witnesses that there was a quarrel following which the appellant threw arrows at the deceased Abala Singh Sardar one of which pierced her and she fell on the ground. It is not the case of prosecution that after the victim had fallen the accused/appellant inflicted any other injury on her person or had taken undue advantage of her helpless condition or had acted in a cruel or unusual manner. Nothing has surfaced in the evidence of any of the witnesses to suggest that there was any enmity or predetermined motive to commit the offence. In view of the aforesaid reasons and the facts which have emerged from the evidence, we are inclined to extend to the appellant the benefit of Exception 4 to Section 300 of the IPC which enables the Court to hold that the offence committed by the appellant was culpable homicide not amounting to murder. Considering the entire facts and circumstances we are of the opinion that the evidence on record shows that the intention of the appellant/accused was to cause such bodily injury which was likely to cause death. Therefore, the offence of which the appellant can be said to be guilty would squarely and appropriately fall under section 304 Part I of the IPC. 25. Consequently, we allow the appeal but only to the extent that instead of section 302 of the IPC the appellant is convicted for the offence punishable under section 304 Part I of the IPC and sentenced to suffer rigorous imprisonment for a period of 10 years and to pay a fine of Rs.2000/- in default of which he shall suffer rigorous imprisonment for two months for the aforesaid offence. 26. The period of detention undergone by the appellant shall be set off against the substantive sentence of imprisonment under section 428 of the Cr P C. 27. 26. The period of detention undergone by the appellant shall be set off against the substantive sentence of imprisonment under section 428 of the Cr P C. 27. Urgent Photostat certified copy of the judgment if applied for, shall be supplied to the parties upon compliance of requisite formalities. 28. A copy of the judgment along with the Lower Court Record shall be sent forthwith to the Trial Court. I agree