JUDGMENT : C. V. BHADANG, J. By this appeal, the appellant is challenging his conviction for the offence punishable under section 302 of Indian Penal Code (I.P.C, for short). The appellant has been sentenced to imprisonment for life and to pay a fine of Rs.10,000/-. 2. The prosecution case may be briefly stated thus: That on 6/9/2011 at about 7.30p.m, the appellant along with now deceased Namdeo Tari were having a drink in 'Dattaprasad bar', at Tariwada, Shiroda, Ponda Goa. Shri Ashok Naik, (PW.5) was also in the bar having a drink. It is the prosecution case that a quarrel took place between the appellant and the deceased Namdeo Tari. The owner of the bar asked them to move out of the bar. After the appellant, the deceased and Ashok Naik, (PW.5) came out of the bar on the road, there was again a quarrel which took place between the appellant and the deceased wherein the appellant is said to have removed a knife from the pocket of his raincoat and stabbed Namdeo on the chest and the back side of the neck. As a result of the assault Namedo fell on the road in a pool of blood. The appellant threatened Ashok Naik (PW5) not to disclose the incident to anybody. Thereafter, (PW5) and the appellant went to their houses. 3. On the basis of a complaint lodged by Ankush Tari, (PW1), the brother of the deceased, an offence came to be registered with the Police Station Ponda under section 302 of I.P.C. During the course of the investigation, the Investigating Officer, (I.O) recorded the statements of the witnesses, drew the spot panchanama of the spot of occurrence. Incidentally, the knife which was used for the assault was found lying at the spot which was seized. The dead body of Namdeo was sent for postmortem examination. The seized articles were sent for the report of the chemical analyzer and on completion of the investigation, a charge sheet came to be laid which was committed to the Court of Sessions. 4. The learned Sessions Judge framed a charge against the appellant for the offence punishable under section 302 of I.P.C, to which the appellant pleaded not guilty and claimed to be tried. The defence of the appellant is one of total denial and false implication. 4. The learned Sessions Judge framed a charge against the appellant for the offence punishable under section 302 of I.P.C, to which the appellant pleaded not guilty and claimed to be tried. The defence of the appellant is one of total denial and false implication. As per the statement filed by the appellant as per section 313 (5) of Cr.P.C., the appellant claims that there was a quarrel between PW.5 and the deceased and it was (PW.5) who assaulted the deceased by means of a knife. 5. At the trial the prosecution examined as many as eleven witnesses including the sole eye witness Mr. Ashok Naik, (PW.5) and produced the record of the investigation. The appellant neither entered into the witness box nor examined any defence witness. 6. The learned Sessions Judge came to the conclusion that Namdeo died a homicidal death and it was the appellant who with the intention of causing death had assaulted Namdeo by means of a knife. In the face of the finding as above, the appellant came to be convicted and sentence as aforesaid. 7. We have heard Shri Pavithran, the learned counsel for the appellant and Shri Rivankar, the learned Public Prosecutor for the Respondent/State. With the assistance of the learned counsel for the parties we have gone through the evidence and the impugned judgment. 8. It is submitted by Shri Pavithran, the learned counsel for the appellant that the evidence of the sole eye witness Ashok Naik, (PW.5) is not acceptable and worthy of credence. The learned counsel has taken us through the evidence of (PW.5) in other to submit that there are various incongruities and improbabilities in the evidence of the said witness which require the evidence to be discarded. For instance, the learned counsel submits that (PW.5) states that the raincoat worn by the appellant had no pockets and there was no separate pant for the raincoat worn by the appellant. In the submission of the learned counsel for the appellant this would show that the prosecution case that the appellant drew a knife from the pocket of his raincoat in order to assault the deceased is improbable. Secondly, it is submitted that the deceased was a tall and well built person, as compared to the appellant. The appellant was having height lesser than the deceased which has come on record. Secondly, it is submitted that the deceased was a tall and well built person, as compared to the appellant. The appellant was having height lesser than the deceased which has come on record. It is, therefore, submitted that it is not possible for the appellant to have assaulted the deceased, particularly on the back side of the neck. It is also submitted that it has not come on record that there was any source of light at the spot. The learned counsel would submit that the incident had occurred after the owner of the bar had closed the same, when the appellant, the deceased and (PW.5) were asked to move out. The learned counsel points out that the said bar is situated at the outskirts of the village and the incident having allegedly happened at around 7.30 p.m. unless there was a source of light, it was improbable for (PW.5) to have witnesses the assault. There is no motive which has come on record which also makes the prosecution case improbable. He submits that it is (PW.5) who assaulted the deceased and the appellant is falsely implicated. 9. The learned counsel has alternately submitted that this is a case where the conviction of the appellant needs to be modified to one under section 304 of I.P.C, inasmuch as it has come on record in the evidence of (PW.5) that there was a quarrel and scuffle between the appellant and the deceased. 10. On the contrary, it is submitted by the learned Public Prosecutor that the evidence of (PW.5) who is the sole eye witness is reliable and one inspiring confidence. It is submitted that the learned Sessions Judge has rightly accepted the evidence of (PW.5). The learned Public Prosecutor was at pains to point out that the appellant has not disputed in his statement (Exhibit C-56) that he was present at the bar along with the deceased and (PW.5). He, therefore, submits that the learned Sessions Judge was justified in placing reliance on the evidence of (PW.5). 11. The learned Public Prosecutor was at pains to point out that the appellant has not disputed in his statement (Exhibit C-56) that he was present at the bar along with the deceased and (PW.5). He, therefore, submits that the learned Sessions Judge was justified in placing reliance on the evidence of (PW.5). 11. We have carefully considered the circumstances and the submissions made and we are of the view that the conviction of the appellant under section 302 of I.P.C has to be modified to the one under section 304 Part I of I.P.C. Here are the reasons: The entire case of the prosecution is based on the testimony of (PW.5) who is the sole eye witness to the incident. (PW.5) Ashok Naik states that on 6/9/2011 at around 7.30p.m he was having a drink in the Dattaprasad bar which is about 50 metres away from his house. In the bar a quarrel took place between the appellant and the deceased, Namdeo Tari whereupon the owner of the bar asked all of them to move out of the bar. After they came out on the road, the quarrel between the appellant and the deceased continued, in which the appellant removed a knife from his raincoat pocket and stabbed the deceased on the chest and on the back near the neck, as result of which the deceased fell on the road in a pool of blood. The appellant warned (PW.5) not to disclose the incident to anybody else or he will be killed. The evidence of (PW.5) would show that (PW.5) and the appellant walked together to their house from the bar. In the cross examination (PW.5) has stated that he does not know whether the raincoat had pockets. After (PW.5) and others came out of the bar it was raining and all the persons were drenched and there was darkness outside the bar. It has also come in the evidence of PW.5 that on his way back from the bar to his house he saw Ganpat and Ankush Tari, the brothers of the deceased, however, he kept quiet. These are the three circumstances on which the credibility of (PW.5) is sought to be challenged. However, on carefully going through the evidence of (PW.5), we do not find that they are sufficient to discard the evidence of (PW.5). These are the three circumstances on which the credibility of (PW.5) is sought to be challenged. However, on carefully going through the evidence of (PW.5), we do not find that they are sufficient to discard the evidence of (PW.5). It would be significant to note that (PW.5) was knowing the appellant and the deceased and all of them were sitting in the bar having drinks. After there was a quarrel between the appellant and the deceased the owner asked all of them including (PW.5) to go out of the bar. The incident is alleged to have happened in front of the bar. Although in the cross examination (PW.5) has stated that it was dark outside, in the re-examination by the learned Public Prosecutor, (PW.5) states that although it was dark, there was a tube light outside. In so far as the aspect of the raincoat not having a pocket is concerned, (PW.5) in the chief examination has stated in categorical terms that the appellant took out a knife from the pocket of his raincoat. What has come in the cross examination is not that the raincoat was not having pockets. All that (PW.5) states that he does not know whether the raincoat had pockets. Even so far as (PW.5) keeping quiet and not informing about the incident to Ganpat and Ankush Tari, (the brothers of the deceased) are concerned, it would be significant to note that shortly after the incident, PW5 and the appellant were walking down to their house together. Thus the conduct of PW.5 in not disclosing the incident of assault by the appellant, who was with him cannot be said to be so unusual so as to discredit his version. The learned counsel for the appellant also made certain comments on the conduct of (PW.5) wherein he stated that after he went home, he slept peacefully, only to be awakened by the police. The conduct of a witness subsequent to witnessing an incident of the present nature although a relevant factor, is not decisive. Persons may behave in a varied manner after witnessing an assault depending upon their own predicament and mental condition. The evidence of (PW.5) shows that he had a drink for about an hour in the bar and merely because (PW.5) states that after the incident he went home and slept peacefully would not be sufficient to discredit him. Persons may behave in a varied manner after witnessing an assault depending upon their own predicament and mental condition. The evidence of (PW.5) shows that he had a drink for about an hour in the bar and merely because (PW.5) states that after the incident he went home and slept peacefully would not be sufficient to discredit him. The statement of this witness is recorded promptly on the same night i.e. on 6/9/2011. On carefully going through the evidence of (PW.5), we do not find that the evidence suffers from any infirmity. The evidence of (PW.5) is one which is natural and inspiring confidence. The learned Sessions Judge was, therefore, justified in placing reliance on the same. The learned Sessions Judge has also relied upon various other circumstances. The evidence of Ankush Tari, (PW.1) and Ganpart Tari, (PW.2), the brothers of the deceased, which show that they had met the appellant and (PW.5) when both of them were going towards the bar and on asking them, (PW.5) and the appellant quickly walked away. The fact that (PW.1) and (PW.2) met the appellant and (PW.5) is also admitted by the respondent in his statement Exhibit C-56. The only thing which he states is that they did not ask him or (PW5) anything. The submission on behalf of the appellant that as the deceased was of a stronger built than the appellant, it is improbable that the appellant could have assaulted the deceased on his neck, also cannot be accepted. On carefully going through the prosecution evidence and, more particularly, the evidence of (PW.5), we do not find that any exception can be taken to the finding recorded by the learned Sessions Judge that it is the appellant who assaulted the deceased by a knife on his chest and back side of his neck. 12. The next question is what is the offence to which the appellant can be found guilty of. It has come in the evidence of (PW.5) that after coming out of the bar there was a “verbal fight” i.e an altercation going on between the appellant and deceased and they assaulted each other in a scuffle which ensued. It can thus be seen that in all probability the incident has happened without premeditation in a sudden quarrel. It has come in the evidence of (PW.5) that after coming out of the bar there was a “verbal fight” i.e an altercation going on between the appellant and deceased and they assaulted each other in a scuffle which ensued. It can thus be seen that in all probability the incident has happened without premeditation in a sudden quarrel. In our considered view the case would clearly be covered by Exception 4 to section 300 of I.P.C. Exception 4 to section 300 of I.P.C provides that 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. In the first place there is evidence to indicate that a quarrel had ensued between the appellant and the deceased initially in the bar which continued after both of them came out of the bar and there was an altercation followed by a scuffle. There is nothing on record to show that after the deceased fell down, the appellant continued to assault him. Thus, this is not a case in which it can be said that the appellant had taken undue advantage or acted in a cruel and unusual manner. We are,therefore, of the opinion that the appellant is entitled to benefit of Exception 4 to Section 300 of I.P.C. Thus the conviction of the appellant under section 302 of I.P.C needs to be converted to one under 304 Part I of I.P.C.. This is because the act of assault on the chest and the neck would clearly show intention to cause such bodily injury as is likely to cause death, within the meaning of section 299 of I.P.C. We, therefore find that the appellant is liable to be convicted for the offence punishable under section 304 Part I of I.P.C. 13. This takes us to the question of sentence. Offence under Section 304 Part I of I.P.C is punishable with imprisonment for life or imprisonment of either description for a term which may extend to ten years and to fine. There are no aggravating circumstances brought on record against the appellant. There are no criminal antecedents alleged or proved against the appellant. Offence under Section 304 Part I of I.P.C is punishable with imprisonment for life or imprisonment of either description for a term which may extend to ten years and to fine. There are no aggravating circumstances brought on record against the appellant. There are no criminal antecedents alleged or proved against the appellant. As indicated earlier, the incident happened in the course of a sudden quarrel without premeditation and without the appellant having taken undue advantage or having acted in a cruel or unusual manner. The appellant is in custody from 6/9/2011 i.e. for more than 6 years and two months. We, therefore find that the appellant can be sentenced to imprisonment for the period already undergone. While doing so, we enhance the fine from Rs.10,000/- to Rs.25,000/-. In the result the following order is passed: Order: (i) The appeal is partly allowed. (ii) The conviction of the appellant for the offence punishable under section 302 of IPC is modified to one under Section 304 Part I of the Indian Penal Code. (iii) The appellant is sentenced to imprisonment for the period already undergone and to pay a fine of Rs.25,000/-and in default to suffer simple imprisonment for three months. (iv) On deposit of the fine, the appellant shall be set at liberty forthwith, if not required, in connection with any other offence. (vi) The order regarding disposal of the property is hereby maintained.