JUDGMENT : Gopal Krishan Vyas, J. The instant Cr. appeal has been filed by the accused appellant Aditaya Kumar under section 374(2) of Cr.P.C., 1973 to assail the validity of the judgment dated 18.2.2011 passed by the learned Sessions Judge, Pratapgarh in Sessions Case No. 63/2008 by which the learned trial court convicted the accused appellant for offence under Section 302 IPC and passed the sentence for life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to further undergo one year RI. 2. As per facts of the case, a report (Ex.P/1) was lodged by the complainant Rameshwar Giri Goswami (PW-1) at Police Station Arnod on 24.3.2011 in which it is reported that at 5.00 pm Sh. Aditaya Kumar Bansiwal post-man residing in his house as tenant abused him and said that he will not pay rent because proper supply of electricity is not made available in his rented house. After saying so, Aditaya Kumar went in market and came back at 8.00 pm and again started abusing him and his family members. Santosh Kumar, nephew of complainant asked the accused Aditaya Kumar why he is abusing them, upon asking accused appellant Aditaya Kumar became angry and said that he will see him and gave knife blow in the stomach of his nephew Santosh Kumar. Due to said injury Santosh Kumar injured was taken to the Pratapgarh Hospital, but in the hospital doctor declared him dead. As per allegation in FIR at the time of incident Mansukh and Bharat were also present on spot and they witnessed the occurrence. 3. Upon aforesaid report of complainant, FIR No. 77/2008 (Ex.P/16) was registered under Section 302 IPC at 12.45 AM on 25.3.2008 against the accused appellant at Police Station Arnod and investigation was commenced. In the investigation, the police inspected the place of occurrence and arrested the accused and recorded statements of witnesses. The post mortem of the body was conducted and report Ex.P/9 was prepared on 25.3.2008. After completing usual investigation charge-sheet was filed against the accused appellant for committing offence under Section 302 IPC in the court of Civil judge-cum-Judicial Magistrate, Pratapgarh from where the case was committed to the Sessions Court, Pratapgarh for trial. 4. The post mortem of the body was conducted and report Ex.P/9 was prepared on 25.3.2008. After completing usual investigation charge-sheet was filed against the accused appellant for committing offence under Section 302 IPC in the court of Civil judge-cum-Judicial Magistrate, Pratapgarh from where the case was committed to the Sessions Court, Pratapgarh for trial. 4. The learned Sessions Judge provided an opportunity of hearing to the appellant and after hearing arguments framed charge against the accused appellant under Section 302 IPC but appellant Aditaya Kumar denied the charge and prayed for trial. 5. To prove the prosecution case, 14 witnesses were produced in the trial from prosecution side including complainant PW-1 Ramesh Giri Goswami, landlord of the premises in which accused appellant was tenant. 6. After recording evidence of prosecution, the learned trial court proceeded to record statement of the accused appellant under Section 313 Cr.P.C., 1973 in which accused appellant denied the allegations and he said that he is innocent and falsely implicated in this case. In spite of granting an opportunity to lead evidence in defence, no evidence was led by the appellant in his defence. 7. The learned trial court after recording evidence heard final arguments and decided the case vide judgment dated 18.2.2011 and passed the sentence of life imprisonment while holding accused appellant guilty for offence under Section 302 IPC. 8. In this appeal, the judgment dated 18.2.2010 passed in Sessions Case No. 63/2005 is under challenged. 9. At the threshold, learned counsel for the appellant submits that the appellant is not challenging the incident but prayed that upon assessment of entire evidence of prosecution, no offence under Section 302 IPC is made out because as per allegation of prosecution only one injury was caused by the accused appellant with whom there was no enmity or quarrel in the incident occurred all of sudden in spur of moment due to some hot discussion in between the parties. There is no allegation for causing repeated injury to the deceased, therefore, prayed that finding of conviction recorded by the learned trial court for offence under Section 302 IPC may kindly be altered to offence under Section 304 Part I IPC. There is no allegation for causing repeated injury to the deceased, therefore, prayed that finding of conviction recorded by the learned trial court for offence under Section 302 IPC may kindly be altered to offence under Section 304 Part I IPC. Learned counsel for the appellant submits that as per statement of complainant PW-1 Ramesh Giri Goswami, the accused appellant was his tenant and quarrel took place due to non-supply of proper electricity in the premises rented out to the accused appellant and during quarrel the nephew of complainant Santosh Kumar asked the accused appellant why he is abusing family, therefore, some hot discussion took place and all of sudden in anger one injury was inflicted by knife in the stomach of deceased, which resulted into the death. It is also argued that in the statement of Dr. OP Dayma (P.W.-10) there is no whisper that injury caused by the accused appellant mentioned in the post mortem report (Ex.P/10) was sufficient to cause death and there is no allegation of any eye witness for inflicting repeated injury, more so, as per prosecution case only one injury was inflicted by the accused in the stomach of deceased without any intention. The crux of argument is that incident took place all of sudden and in spur of moment in which only one injury was caused by the accused appellant to the deceased Santosh, that too, without motive or intention to kill him, therefore, offence cannot travel beyond offence under Section 304 Part I IPC, hence, prayed that finding of conviction for offence under Section 302 IPC may kindly be altered to the offence under Section 304 Part I IPC. In support of above arguments, the learned counsel for the appellant invited our attention towards the following judgments : 1. State of Himachal Pradesh v. Ram Pal, reported in 2006(2) SCC (Cri.) 165 2. Arjun v. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506 3. Sudhakar v. State of Maharashtra, reported in 2012 Cr. L.R.(SC) 1025 4. Dilip Kumar Mondal & Anr. v. State of West Bengal, reported in 2015 (2) SCC (Cri.) 318 5. Arjun & Anr. v. State of Chhattishgarh reported in AIR 2017 SC 1150 10. Arjun v. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506 3. Sudhakar v. State of Maharashtra, reported in 2012 Cr. L.R.(SC) 1025 4. Dilip Kumar Mondal & Anr. v. State of West Bengal, reported in 2015 (2) SCC (Cri.) 318 5. Arjun & Anr. v. State of Chhattishgarh reported in AIR 2017 SC 1150 10. In reply learned Public Prosecutor submits that it is a case in which a quarrel took place between the parties for non-supply of electricity in the rented house by the complainant and for the said reason quarrel took place in which accused appellant caused injury by sharp edged weapon upon vital part of the body of the deceased Santosh Kumar with intention, therefore, it cannot be said that there was no intention to cause death of the deceased because injury was caused in the stomach of deceased and due to said injury Santosh Kumar died on spot. 11. According to learned Public Prosecutor the intention can be gathered from the fact that accused appellant inflicted injury by sharp edged weapon knife on vital part of body which is stomach of deceased Santosh Kumar, therefore, there is no ground to alter the finding conviction for offence under Section 302 IPC recorded by the learned trial court so as to hold guilty the accused appellant for committing murder of Sanotsh Kumar. 12. Learned Public Prosecutor submits that appellant is not disputing incident and accepted the fact of inflicting injury by knife in the stomach of Santosh Kumar, therefore, there is no question to accept the prayer of appellant to alter the conviction, hence, this appeal may kindly be dismissed. 13. After hearing learned counsel for the parties, first of all, we have perused the FIR as well as statement of P.W.1 Ramesh Giri Goswami, author of FIR. Admittedly, P.W.1 Ramesh Giri Goswami was landlord of the premises rented out to the accused appellant and dispute arose due to non-supply of electricity in the rented premises of the accused appellant. 13. After hearing learned counsel for the parties, first of all, we have perused the FIR as well as statement of P.W.1 Ramesh Giri Goswami, author of FIR. Admittedly, P.W.1 Ramesh Giri Goswami was landlord of the premises rented out to the accused appellant and dispute arose due to non-supply of electricity in the rented premises of the accused appellant. Complainant Ramesh Giri Goswami (P.W.1), P.W.2 Mansukh, P.W.3 Bharat Lohar, P.W.4 Hemant Giri, P.W.5 Jagidsh and P.W.7 Dashrath categorically stated before the court that occurrence took place all of sudden when quarrel took place in between the parties, therefore, it is obvious that there was no dispute in between the accused appellant and the deceased Santosh Kumar, therefore, it cannot be presumed that there was any intention or motive of the accused appellant to cause death of the deceased. Actually quarrel took place on the date of incident all of sudden in which one injury was caused by knife to the deceased Santosh Kumar by the accused appellant. There is no allegation for causing repeated injury. No evidence of motive is in existence, more so, all the prosecution witnesses that some quarrel took place due to non supply of electricity in the house of accused appellant who was tenant in the house of P.W.1, therefore, it can be said that finding of conviction recorded by the learned trial court for offence under Section 302 IPC is not in consonance with law because the learned trial court ought to have considered the fact that only one injury was caused to the deceased by the accused appellant and as per statement of P.W.10 Dr. OP Dayama the said injury was not sufficient to cause death. Further, it is also an admitted position of the case that quarrel was in between the complainant Ramesh Giri Goswami and the accused appellant Aditaya Kumar who was tenant of the premises of complainant in which quarrel took place. 14. The Hon'ble Supreme Court in the case of State of Himachal Pradesh v. Ram Pal, reported in 2006 (2) SCC (Cri.) 165, gave following verdict to alter the conviction from offence under Section 302 IPC to Section 304 Part-I of IPC, the paras nos. 5 to 8 of the said judgment are as follows: "5. 14. The Hon'ble Supreme Court in the case of State of Himachal Pradesh v. Ram Pal, reported in 2006 (2) SCC (Cri.) 165, gave following verdict to alter the conviction from offence under Section 302 IPC to Section 304 Part-I of IPC, the paras nos. 5 to 8 of the said judgment are as follows: "5. Having perused the record for the limited purpose off finding the nature off offence, we see that it is clear from the evidence off PW- 3 himself that he and Jaiwant consumed liquor before going to the tea stall off the respondent herein to demand the money which was due to him and when they reached there the deceased went inside the tea stall and started quarrelling with the accused persons.. During the said quarrel it is stated that the deceased called the accused persons as "cheat" and "beiman" and the quarrel then spilled outside the stall at which point off time a stick that was carried by Choudhary Ram was snatched by P.W.3, in the process Choudhary Ram got injured and fell down. Here we must notice the case off the defence is that P.W.3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted P.W.3 first with a knife and then assaulted the deceased twice on his back. 6. On the facts off this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall off the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by P.W.3. It is at that time the respondent stabbed PW-3 and the deceased. From the above facts stand proved are (a) the deceased went with P.W.3 to the shop off the accused; (b) picked up an argument during which he abused the accused (c) Choudhary Ram was injured first and then the respondent stabbed P.W. 3 and the deceased (d) injury was inflicted on the back off the deceased. 7. On the above facts we are off the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. 7. On the above facts we are off the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. We are also in agreement with the finding off the High Court that sentence off over 4 years' RI suffered by the respondent meets the ends off justice.. 8. For the reasons stated, this appeal fails hence dismissed." 15. In the case of Arjun v. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506, the Hon'ble Supreme Court gave following verdict: "17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat off passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, we are off the view that this case falls under the fourth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC and we do so. 18. We are informed that the appellant is in custody since 30.07.2003. In our view, custodial sentence off 10 years to the accused-appellant accordingly. The appeal is accordingly disposed off, altering the sentence awarded." 16. In the case of Sudhakar v. State of Maharashtra (supra), the Hon'ble Supreme Court held as under: 8. Whatever be the subsequent versions made by P.W.1 and 2 before the Court, it came out in evidence that at the time off occurrence there were only three persons, namely, the appellant, P.W.1 and the deceased. The admission off P.W.1 that the deceased had drinking habit and that whenever he was under the influence off liquor he used to create a ruckus in the house was a factor which had to be necessarily borne in mind while considering the offence alleged and proved against the appellant. Though there is variation in the version off P.W.1, as between the complaint and her evidence before the Court, going by the evidence available on record, the conclusion off the Trial Court that the appellant was responsible for the death off the deceased is unassailable. Apart from the exclusive presence off the appellant with a weapon in his hand as deposed by P.W.2, the other two persons were the deceased and P.W.1. Apart from the exclusive presence off the appellant with a weapon in his hand as deposed by P.W.2, the other two persons were the deceased and P.W.1. The said conclusion off the Trial Court as well as that off the High Court cannot be doubted. Further the report off the chemical analysis Exhibits 35 and 36 also disclosed that the blood stained clothes off the appellant matched with the blood group off the deceased which were found on the clothes off the deceased himself. Therefore, there was conclusive proof to hold that it was appellant who was responsible for the single stab injury inflicted upon the deceased with the aid off the knife seized under Exhibit-47. Having reached the above conclusion, the only other question raised was as to whether there is any mitigating circumstance in order to hold that the offence would fall under any off the Exceptions to Section 300 of IPC to state that it was a case off culpable homicide not amounting to murder." 17. The Hon'ble Supreme Court in the case of Dilip Kumar Mondal & Anr. v. State of West Bengal, reported in 2015 (2) SCC (Cri.) 318 held as infra: - "24. In order to invoke Exception 4 to Section 300 Indian Penal Code, it must be further shown that the offender has not taken undue advantage or acted in a cruel or unusual manner.. The Appellants are said to have inflicted injuries with henso and dau. By a perusal off Ext. P6 post-mortem certificate, it is seen that the deceased sustained one incised injury on the back which has caused injury to scapula and spinal cord and another incised wound over the back just bellow the right scapula causing injury to the right lung and pleura. Insofar as the injuries caused to Ranjit Debnath and Santosh Debnath, there is no sufficient evidence as to the alleged injuries caused to them. As far as P.W.10. Nikhil Debnath is concerned, he was discharged from the hospital after giving first aid treatment indicating thereby that the injury was not grievous. Considering the injuries, in our view, it cannot be said that the accused have taken undue advantage off the situation. As far as P.W.10. Nikhil Debnath is concerned, he was discharged from the hospital after giving first aid treatment indicating thereby that the injury was not grievous. Considering the injuries, in our view, it cannot be said that the accused have taken undue advantage off the situation. The incident was not premeditated and the scuffle between the parties led to the causing off injuries to the deceased Nripen Debnath and considering the circumstances off the case, in our view, the offence would fall Under Section 300 Indian Penal Code Exception 4 and the conviction off the Appellants is to be modified and altered Under Section 304 Part I IPC." In the case of Arjun & Anr. v. State of Chhattishgarh the Hon'ble Court held as infra: "22. The accused, as per the version off P.W.6 and eye witness account off other witnesses, had weapons in their hands, but the sequence off events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no premeditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken undue advantage or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC. 23. When and if there is intent and knowledge, then the same would be a case off Section 304 Part I IPC and if it is only a case off knowledge and not the intention to cause murder and bodily injury, then the same would be a case off Section 304 Part II IPC. Injuries/incised wound caused on the head i.e., right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC.. The conviction off the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. The conviction off the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that off the period already undergone. 24. In the result, conviction off the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the sentence is reduced to the period already undergone and these appeals are partly allowed accordingly. The appellants are ordered to be released forthwith unless required in any other case. 25. Fee off the learned Amicus is fixed as per Rules." 18. In view of the above discussion while following the law laid down by the Hon'ble Supreme Court and upon the fact that there is no allegation for causing repeated injury by the accused appellant and only one injury was caused by the accused appellant that too without motive or without intention, therefore, the prayer of the appellant deserves acceptance. 19. Consequently, this criminal appeal is partly allowed. The conviction and sentence passed by learned trial court vide judgment dated 18.2.2011 against appellant, Aditaya Kumar for offence under Section 302 IPC is hereby altered from offence under section 302 IPC to Section 304 Part-I of IPC and consequently the sentence of life imprisonment is hereby reduced to 10 years' R.I. while maintaining the order of fine with default stipulation.