JUDGMENT : G.K. Vyas, J. The instant criminal appeal has been filed by the accused appellant, Narsinga Ram under Section 374 (2), Cr.P.C. against the judgment, dated 27.01.2015 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act cases, Barmer (Trial Court) in Session Case No.58/2013 (104/2010) (67/2010), whereby the accused appellant was convicted for offence under Section 302 of IPC and sentence of life imprisonment was imposed against him along with fine of Rs.5,000/- with default stipulation to further undergo one year additional simple imprisonment. 2. As per facts of the case, on 09.07.2010 at about 05.55 a.m. a written report (Ex.P/16) was submitted by the complainant Govind Singh under his thumb impression before the S.H.O., Police Station Sadar, District Barmer, stating therein that today went to Barmer along with other passengers in my jeep, where after dropping them, he went to the rented house of his real brother Tikam Singh (deceased) taken by him on rent from Bhanwarlal Deshantri. According to complainant when he reached in the house of his brother Tikam Singh, the door of the house was found opened and outside the kitchen, my brother Tikam Singh was sleeping, and accused appellant Narsinga Ram was standing there, having an iron weight ¼ckV½ in hand in his presence threw the said iron weight on the head of Tikam Singh, however, when complainant tried to rescue, on seeing him the accused appellant ran away from the place of occurrence. The complainant further stated that due to head injury blood came out from nose, ear and mouth and Tikam Singh died on the spot. It was further stated that Tikam Singh was residing in the rented house with Sita Bhilni, who was out of home on the date of occurrence. In the house, Puro, daughter of Sita, and son, Chunaram, were present and on hearing the hue and cry, they woke up and complainant immediately went to the house of neighbour Vakaram to give information of the incident. 3. In the house, Puro, daughter of Sita, and son, Chunaram, were present and on hearing the hue and cry, they woke up and complainant immediately went to the house of neighbour Vakaram to give information of the incident. 3. For ready reference, Ex.P/16 written report submitted under the thumb impression of complainant is reproduced herein below:- lsok esa Jheku Fkkukf/kdkjh iqfyl Fkkuk dksrokyh ckM+esj ftyk ckM+esj fo"k; %& eqdnek ntZ djus ckcrA egksn;] eq>s izkFkhZ xksfoUnz flga iq= Jh lqtku flag tkfr jktiwr mez 45 o"kZ is'kk MzbZfoax fuoklh egkckj ihFky dk fuosnu gS fd vkt fnukad 9-7-2010 dks lqcg djhc pkj cts eS esjh thi ysdj lokfj;k NksM+us ds fy, egkckjl ls ckM+esj vk;k Fkk lokfj;k NksM+dj eSa esjs lxs HkkbZ fVde flag ls feyus ds fy, mlds fdjk;s ds edku ij 'kkL=h uxj esa x;k fVde flag 'kkL=h uxj esa ns'kkUrjh ds edku esa fdjk;s ij jgrk gS eSa fVde flag ds ?kj ij x;k rks ?kj dk QkVd [kqyk gqvk Fkk vUnj x;k rks jlksbZ ds ckgj dejs ds njokts+ ds vkxs fVde flag lks;k gqvk FkkA mlds ikl esa dekm dk ujflaxkjke Hkhy [kM+k Fkk ftlds gkFk esa yksgs dk cM+k ckV idM+k gqvk Fkk tks ckV mlus fVde flag ds flj ij tksj ls iVdk eS mldks jksdrk rc rd og ckV iVddj eq>s ns[kdj ogka ls Hkkx x;k eSaus utnhd tkdj fVde flag dks ns[kk rks ckV ds otg ls pksV yxus ls mldk flj fipd x;k Fkk vkSj ukd dku vkSj eqg esa ls [kwu fudy jgk Fkk mldh uCt+ ns[kh rks uCt+ ugha py jgh Fkh vkSj lkal Hkh ugha py jgh Fkh A fVde flag ds lkFk lhrk Hkhy.kh jgrh Fkh tks jkr esa ckgj xbZ gqbZ FkhA lhrk dh yM+dh iqjk o yM+dk pwukjke ogha FksaA tks ckV dh vkokt lqudj tx x, Fks fQj eS iqjks o pwukjke dks iM+kSlh okdkjke ds ?kj NksM+dj esjs ?kj okyksa dks bRryk djus ds fy, egkckj pyk x;k FkkA eSa i<+k fy[kk ugha gqa ?kj okyks ls lykg djds egkckj ihFky ls okil vkdj fjikVZ dj jgk gwa dk;Zokgh djkosA iqjks dh 'kknh ujflaxkjke ds lkFk dh gqbZ Fkh ysfdu iqjks ujflaxkjke ds lkFk ugha tkdj eka ds lkFk jguk pkgrh Fkh ftlls ujflaxkjke fVde flag ls ukjktxh j[krk Fkk blfy, mlus fVde flag dh gR;k dh gSA izkFkhZ Thumb Impression xksfoUn flag iq= Jh lqtku flag jktiwr fuoklh egkckj fiFky 4. On the basis of aforesaid written report (Ex.P/16), formal FIR No.235/2010 was registered on 09.07.2010 at Police Station Kotwali, District Barmer, against the appellant for offence u/S. 302 of IPC. During investigation, the accused appellant was arrested and after completing investigation and recording statements of eye-witnesses, charge sheet was filed against the accused appellant in the court of Chief Judicial Magistrate, Barmer, from where the case was committed to the court of Addl. Sessions Judge, Barmer, but later on transferred to the court of Special Judge, SC/ST (Prevention of Atrocities) Barmer, for trial. 5. During trial, charge under Section 302, IPC was framed against the accused appellant, but accused appellant denied the charges and prayed for trial. 6. In the trial, statements of 16 prosecution witnesses were recorded and 24 documents were exhibited from the prosecution side. After recording evidence of prosecution, the learned trial court recorded the statements of accused appellant u/S. 313, Cr.P.C. and in defence 4 defence witnesses were examined including accused himself as DW.1. 7. After recording evidence, final arguments were heard. The learned trial court after considering the entire evidence of the case, held the accused appellant guilty for committing offence u/S. 302 of IPC vide judgment impugned dated 27.01.2015 and passed sentence of life imprisonment along with fine of Rs.5000/- with default stipulation to undergo one year additional simple imprisonment, the said judgment is under challenge in this appeal. 8. At the threshold, learned counsel for the accused appellant submitted that although out of three eye-witnesses, viz., two witnesses, viz. PW.8 Puro Devi, and PW.10 Chunaram, who were very much present in the house, turned hostile and did not support the prosecution case, however, the learned trial court relied upon the testimony of complainant Govind Singh (real brother of deceased) for causing injury by iron weight, convicted the accused appellant on the ground that there is no question to disbelieve his testimony, which is further corroborated by medical evidence and FSL report. But, there is no evidence on record to prove that there was any motive or intention of the accused appellant to cause such injury, therefore, even if the entire prosecution case is accepted, then also the offence cannot travel beyond offence under Section 304, Part-I of IPC. But, there is no evidence on record to prove that there was any motive or intention of the accused appellant to cause such injury, therefore, even if the entire prosecution case is accepted, then also the offence cannot travel beyond offence under Section 304, Part-I of IPC. The learned trial court, however, erroneously held the accused appellant guilty for offence under Section 302 of IPC, and therefore, the judgment impugned may kindly be modified because there is no allegation for repeated blow or undue advantage and there is no evidence of motive on record. Learned counsel for the appellant prayed that judgment may kindly be quashed or conviction may be altered to offence u/S. 304, Part-I of IPC. In support of above prayer, he invited our attention towards following judgments: - 1. State of Himachal Pradesh v. Ram Pal, reported in 2006 (2) SCC (Cri.) 165 : (2005 Cri LJ 4907 (SC)). 2. Arjun v. State of Maharashtra reported in 2012 Cri.L.R. (SC) 506 : (2012 Cri LJ 2641 (SC)). 3. Sudhakar v. State of Maharashtra, reported in 2012 Cri. L.R. (SC) 1025. 4. Dilip Kumar Mondal & Anr. v. State of West Bengal, reported in 2015 (2) SCC (Cri.) 318 : (2015 Cri LJ 1321 (SC)). 5. Arjun & Anr. v. State of Chhattisgarh reported in, AIR 2017 SC 1150 . 9. Per contra, learned Public Prosecutor vehemently opposed the submissions made by counsel for the appellant and submitted that it is a case in which an iron weight of 50 kg. was thrown upon the head of deceased and due to said injury, the deceased died, therefore, it cannot be said that it is a case in which any error has been committed by the trial court so as to hold accused appellant guilty for offence u/S. 302, IPC. 10. Learned Public Prosecutor further argued that intention can be gathered from the fact that injury was caused by heavy weight upon the vital part of body, therefore, there is no question to interfere with the findings of learned trial court whereby the accused appellant has been held guilty for committing offence under Section 302 of IPC. 11. After hearing the learned counsel for the parties, we have perused the statements of all the 16 prosecution witnesses. As per FIR, entire prosecution case is based upon testimony of three eye-witnesses viz. PW. 11. After hearing the learned counsel for the parties, we have perused the statements of all the 16 prosecution witnesses. As per FIR, entire prosecution case is based upon testimony of three eye-witnesses viz. PW. 14 Govind Singh (real brother of the deceased and author of FIR), PW.8-Puro Devi (wife of accused appellant Narsinga Ram) and PW.10-Chuna Ram (brother-in-law of the accused appellant). Admittedly, the house in which the deceased was residing, where mother-in-law of the appellant along with his wife Puro Devi, and Chunaram were residing, and as per FIR, Puro Devi, wife of appellant and brother-in-law of accused appellant were present, but they turned hostile and did not support the prosecution case. 12. PW.7-Jethi Devi, landlady of the house, also turned hostile. As per evidence on record, the iron weight, which is alleged to be thrown upon the head of the deceased, was not taken in possession by the Investigating Officer but the blood found upon the said iron weight was taken upon cotton and the same was sent to FSL. As per prosecution case, blood was found upon the weight and it was not possible to send the iron weight to FSL for examination. 13. We have also perused the FSL report dated 13.07.2010 (Ex.P/24), according to which, human blood of 'B-group was found on the cotton/gauge and shirt of the deceased. It is admitted position of case that alleged iron weight which is said to be used for committing murder of deceased, was not taken in possession by the police but the fact remains that as per FIR itself while throwing the weight, accused appellant ran away from the place of occurrence. Although some whisper is there with regard to dispute in between Puro Devi, wife of accused appellant with appellant, because was not going with the appellant due to interference of the deceased, but at the same time, this Court cannot lose sight of the fact that only one injury was caused by the appellant probably on heat because deceased was not having relation with family of his in-laws, however, he was residing in the house of his in-laws as stranger, therefore, some quarrel took place in which the incident took place. 14. 14. Therefore, we find strength in the argument of learned counsel for the appellant that finding of trial court holding the appellant guilty u/S. 302 of IPC without there being evidence of motive and so also considering the fact that there is allegation of inflicting on injury on the person of deceased, thus it is fit case to alter the conviction from offence under Section 302 of IPC to offence under Section 304, Part-I of IPC. 15. The Hon'ble Supreme Court in the case of State of Himachal Pradesh v. Ram Pal, reported in 2006 (2) SCC (Cri.) 165 : (2005 Cri LJ 4907), gave following verdict to alter the conviction from offence under Section 302 IPC to Section 304, Part-I of IPC, the para Nos. 5 to 8 of the said judgment are as follows: '5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW-3 himself that he and Jaiwant consumed liquor before going to the tea stall of 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 of time a stick that was carried by Choudhary Ram was snatched by PW-3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW-3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW-3 first with a knife and then assaulted the deceased twice on his back. 6. On the facts of 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 of 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 PW-3. It is at that time the respondent stabbed PW-3 and the deceased. 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 PW-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 PW-3 to the shop of the accused; (b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW-3 and the deceased; (d) injury was inflicted on the back of the deceased. 7. On the above facts we are of 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 of the High Court that sentence of over 4 years-RI suffered by the respondent meets the ends of justice. 8. For the reasons stated, this appeal fails hence dismissed.' 16. In the case of Arjun v. State of Maharashtra reported in 2012 Cri.L.R. (SC) 506 : (2012 Cri LJ 2641 (SC)), 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 of 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 of 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 of 10 years to the accused-appellant accordingly. The appeal is accordingly disposed of, altering the sentence awarded." 17. In the case of Sudhakar v. State of Maharashtra, reported in 2012 Cri. L.R. (SC) 1025, the Hon'ble Supreme Court held as under: 8. Whatever be the subsequent versions made by P.Ws 1 and 2 before the Court, it came out in evidence that at the time of occurrence there were only three persons, namely, the appellant, P.W.1 and the deceased. L.R. (SC) 1025, the Hon'ble Supreme Court held as under: 8. Whatever be the subsequent versions made by P.Ws 1 and 2 before the Court, it came out in evidence that at the time of occurrence there were only three persons, namely, the appellant, P.W.1 and the deceased. The admission of P.W.1 that the deceased had drinking habit and that whenever he was under the influence of 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 of P.W.1, as between the complaint and her evidence before the Court, going by the evidence available on record, the conclusion of the Trial Court that the appellant was responsible for the death of the deceased is unassailable. Apart from the exclusive presence of 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 of the Trial Court as well as that of the High Court cannot be doubted. Further the report of the chemical analysis Exhibits 35 and 36 also disclosed that the blood-stained clothes of the appellant matched with the blood group of the deceased which were found on the clothes of 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 of 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 of the Exceptions to Section 300 of IPC to state that it was a case of culpable homicide not amounting to murder." 18. 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 : (2015 Cri LJ 1321 (SC)) 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 of Ext. 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 of 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 below 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 PW-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 of the situation. The incident was not premeditated and the scuffle between the parties led to the causing of injuries to the deceased Nripen Debnath and considering the circumstances of the case, in our view, the offence would fall under Section 300 Indian Penal Code Exception 4 and the conviction of the appellants is to be modified and altered under Section 304, Part I IPC." 19. In the case of Arjun & Anr. v. State of Chhattisgarh reported in AIR 2017 SC 1150 , the Hon'ble Court held as infra: "22. The accused, as per the version of PW-6 and eye-witness account of other witnesses, had weapons in their hands, but the sequence of 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. 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 of Section 304, Part I, IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304, Part I, 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 of 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 of the period already undergone. 24. In the result, conviction of 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 of the learned Amicus is fixed as per Rules.' 20. So far as present case is concerned, there is no allegation of repeated infliction of injury on the person of deceased and incident took place due to anger which is evident from the fact that there is no evidence of motive on record, therefore, the accused appellant is guilty for offence under Section 304, Part-I of IPC and not for offence u/S. 302, IPC. 21. 21. Upon assessment of entire evidence in the light of aforesaid judgments, we are of the view that the finding recorded in the impugned judgment by the learned trial court so as to hold accused appellant guilty for offence u/S. 302, IPC deserves to be altered under Section 304, Part-I of IPC. 22. Consequently, this criminal appeal is hereby partly allowed. The conviction and sentenced passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act cases, Barmer in Session Case No. 58/2013 (104/2010) (67/2010) for offence u/S. 302 of IPC is hereby altered under Section 304, Part-I of IPC and the sentence is reduced to seven years-rigorous imprisonment. The order of fine is hereby maintained.