JUDGMENT Hon’ble Chandra Dhari Singh, J.—Heard Mr. Vinay Saran learned Amicus Curiae for the appellant, Mr. Nagendra Bahadur Singh, learned A.G.A. for the State and perused the record. 2. This instant jail appeal has been filed against the impugned order dated 19.2.2005, passed by the Additional District and Sessions Judge, Court No. 4, Ghaziabad in Session Trial No. 116 of 2004, whereby the accused-appellant had been convicted for offence punishable under Section 302 I.P.C. and sentenced to suffer imprisonment for life and fine of Rs. 5,000/-, in default of payment of fine, he shall undergo rigorous imprisonment for six months. 3. Brief facts of the case. (I) The story of the prosecution is that on 11.11.2003, the accused Anil and her wife Santosh (deceased) were working in the field, after sometime they had started quarreling with each other. There was scuffle between accused-appellant and deceased Santosh. On the spur of moment, the accused Anil took the fawda which was lying in the field and gave a very strong blow on her neck. She died on the spot. At the time of incident, complainant Chandrapal Singh, Indrajeet and Devendra Singh were present near the field as they were also working in the other filed. (II) Tehrir was prepared and submitted by the complainant. PW-5 Chandrapal Singh and he had narrated the incidents which took place on 11.11.2003 at 9:30 a.m. On the basis of the Tehrir, F.I.R. was lodged on the same day i.e. on 11.11.2003 at 10:33 a.m. in police station Muradnagar, Modinagar, Ghaziabad against the appellant for commission of offence punishable under Section 302 I.P.C. III. After lodging the F.I.R., the investigation was conducted by Investigating Officer, the police reached on the spot and made a site plan of the place of incident, then collected blood stained soil and plain soil alongwith other articles of the deceased. The statements of the witnesses were recorded under Section 161 Cr.P.C. The dead body of the deceased was sealed and sent to the hospital for post-mortem. The post-mortem was conducted by PW-8, Dr. R.K. Verma. IV. After completing the investigation, the charge-sheet was filed against the accused person for offence punishable under Section 302 I.P.C. The case was committed to the Court of Sessions for trial. V. To bring home the guilt of the accused-appellant, prosecution has examined eight witnesses. The post-mortem was conducted by PW-8, Dr. R.K. Verma. IV. After completing the investigation, the charge-sheet was filed against the accused person for offence punishable under Section 302 I.P.C. The case was committed to the Court of Sessions for trial. V. To bring home the guilt of the accused-appellant, prosecution has examined eight witnesses. Incriminating evidence and circumstances were put to accused-appellant under Section 313 Cr.P.C. the accused denied all of them and stated that he was falsely implicated in this case. 4. After appreciation of the ocular evidence, medical evidences and other materials on the record, the trial Court held that the appellant committed murder of the deceased and prosecution has established the circumstances proving the accused-appellant guilty under Section 302 I.P.C. and sentenced him to undergo life imprisonment with a fine of Rs. 5,000/-, in default of payment of fine, he shall further suffer rigorous imprisonment for six months. 5. The instant adjudication being one to examine the tenability of the conviction of the appellant, an independent assessment of the evidence on record is indispensable in the interest of justice. It would thus be expedient, to analyze the evidence, oral and documentary before adverting to the rival arguments based thereon. 6. PW-1, Naresh Kumar son of Ramji Lal stated in the testimony that he saw the incident when his sister and brother-in-law was quarreling and on the spur of moment his brother-in-law had given strong blow by farsa on the neck of the deceased. Due to the said injury, the deceased died on the spot. He further stated in the testimony that he tried to save but due to fear of the accused, he could not do so. He had repeated the same statement in the cross-examination of the testimony. 7. PW-2, Yatindra Singh also stated in the deposition that he saw the incident when his sister and brother-in-law was quarreling. There was scuffle between them. After sometime, appellant took the fawda and gave a strong blow on the neck of the deceased. The incident had been taken place in the spur of the moment. When he tried to save his sister, the accused threatened him and therefore, he could not do much to save his sister. In the cross-examination, he reiterated the statement which were made in the chief of the testimony. The incident had been taken place in the spur of the moment. When he tried to save his sister, the accused threatened him and therefore, he could not do much to save his sister. In the cross-examination, he reiterated the statement which were made in the chief of the testimony. He stated in the deposition that the accused had given two blow by fawda within a minute. Appellant was under influence of the anger at the time, when he inflicted two blow to the deceased. 8. PW-3, Jitendra who had written the ‘Tehrir’. After receiving the information that her sister-in-law was killed by his brother i.e. appellant, he went to the police station to give the complaint. He stated in the Tehrir that his brother killed his sister-in-law by inflicting strong blow on the neck of the deceased. The blow was so strong that the neck of deceased had separated form the rest of her body and she died on the spot. He was informed by other witnesses, who were eye-witnesses that incident had been taken place within the very small span of time. They were quarreling with each other and in spur of the moment, his brother took fawda and inflicted strong blow on the neck, due to injuries, she died on the spot. In the cross-examination he had reiterated the statement which had given in chief testimony. 9. PW-4, Pappu, who had not supported the prosecution version and has been declared hostile witness. He had stated in the statement that the accused-appellant was not arrested in front of him and nothing had been recovered at the instance of the accused person. 10. PW-5, Constable Chandrapal Singh, who had written Tehrir on the dictation made by PW-3 Jitendra at about 10:15 a.m. He proved G.D. Entry as Ex.Ka-4. He had also reiterated the statement as stated in the chief testimony and supported the prosecution story. 11. PW-6, Constable Musabbar Khan has stated in his deposition that Inspector had sealed the dead body of the deceased and made a seizure memo of the dead body in front of him. After preparation of the seizure memo, the dead body was sent to the doctor for post-mortem. He supported the seizure memo and panchnama of the dead body. 12. PW-6, Constable Musabbar Khan has stated in his deposition that Inspector had sealed the dead body of the deceased and made a seizure memo of the dead body in front of him. After preparation of the seizure memo, the dead body was sent to the doctor for post-mortem. He supported the seizure memo and panchnama of the dead body. 12. PW-7, S.I. O.P. Yadav, Investigating Officer, who was investigated the matter and stated in his testimony that he went to site, made a site plan and sealed the dead body of the deceased, made a seizure memo and panchnama of the dead body. He also collected blood stained soil, plain soil and other articles which were lying on the spot, made a seizure memo of all the articles under his signature. He proved the seizure memo of articles. He also stated in the deposition that at the instance of the accused, he recovered the fawda which was used in the commission of offence. It was sealed and sent for chemical examination. 13. PW-8, Dr. R.K. Verma, who has conducted the post-mortem and found the following injuries: i. Incised wound of 5 cm. x 1.5 c.m. x muscle deep. ii. Incised wound of 4 cm. x 1.5 cm. x muscle deep was on the back side of right arm forceps which towards on upper side on 1/3 part. Both these injuries were 1 cm. from each other and were in direction from upper to lower portion obliquely. iii. Incised wound deep till neck. Head was linked with chest from the skin near the neck. As per the report, the injury No. 1 was inflicted by the sharp edged weapon and injury No. 2 was caused when the deceased was lying on the earth and due to the support of the earth her vertebra was separated from the rest of the body. Both injuries were vital on the vital part. 14. PW-9, Sub-Inspector K.R. Arya, who had recovered the fawda and seized the dead body. He made a panchnama of the dead body and seizure memo of the weapon used in the crime under his signature. He proved his signature on the panchnama as well as on the seizure memo. 15. Both injuries were vital on the vital part. 14. PW-9, Sub-Inspector K.R. Arya, who had recovered the fawda and seized the dead body. He made a panchnama of the dead body and seizure memo of the weapon used in the crime under his signature. He proved his signature on the panchnama as well as on the seizure memo. 15. For every question put to the appellant under Section 313 Cr.P.C., the same reply was given that he was innocent and he has not committed any offence to kill his own wife. 16. Mr. Vinay Saran, learned Amicus Curiae contended on behalf of the appellant that the evidence, if properly appreciated would lead to only one inference, that the appellant did not have any intention to commit murder. The incident took place in the spur of the moment, it was without any premeditation and that it was in the process of a fight between the deceased and appellant. There is no evidence regarding any motive or intention to kill the deceased, there relation was very cordial as wife and husband, thus, the case would come under exception 4 of Section 300 of the Code. 17. Learned A.G.A. on behalf of the State submitted that the appellant had given fatal blow on a vital organ i.e. neck, with great force resulting in serious injury and neck was separated from the rest of the body, to cause death of the deceased and, thus, both intention and knowledge are decipherable from the conduct of the accused-appellant and, hence, the conviction under Section 302 is to be upheld. The jail appeal deserves to be dismissed. 18. The crucial aspect to be analyzed in this case is whether conduct of the appellant in inflicting the fatal blow is intentional and with knowledge or with knowledge only. The medical report given by PW-8, Dr. R.K. Verma, shows that the injury caused by weapon used by the appellant is sufficient in the ordinary course of nature to cause death. Hence, we have to analyze the evidence in the light of Section 300 clause ‘Thirdly’ and examine whether Exception 4 to Section 300 I.P.C. is applicable. 19. 300. The medical report given by PW-8, Dr. R.K. Verma, shows that the injury caused by weapon used by the appellant is sufficient in the ordinary course of nature to cause death. Hence, we have to analyze the evidence in the light of Section 300 clause ‘Thirdly’ and examine whether Exception 4 to Section 300 I.P.C. is applicable. 19. 300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— xxx Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— Exception 4 to Section 300 of the Code, reads as under: Exception 4.—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 first assault. 20. In the case falls under Exception 4, then the further inquiry should be as to whether the case falls under the first part of Section 304 or the second part, which reads as follows: “304-Punishment for culpable homicide not amounting to murder : Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, of of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 21. In the present case all the eye-witnesses have narrated the evaluation of quarrel and about the conduct of appellant inflicting the injury with fawra on the neck of the deceased. There was verbal altercation between the deceased and appellant. In the present case all the eye-witnesses have narrated the evaluation of quarrel and about the conduct of appellant inflicting the injury with fawra on the neck of the deceased. There was verbal altercation between the deceased and appellant. During the scuffle that followed, the accused-appellant inflicted the fawra on the neck of the deceased and she fell down after sustaining the said injury. It was also stated in the testimony of the witnesses that the relation of wife and husband i.e. deceased and appellant was very cordial and the incident took place within the spur of the moment without any intention/motive to kill the deceased. There are corroboration in the testimony of the eye-witnesses and all eye-witnesses stated the same story in their testimony that the accused had given fawra blow on the neck of the deceased without any motive and intention and that happened only in the influence of the anger. 22. PW-8 Dr. R.K. Verma, who conducted the post-mortem has stated that he had noted the following injuries: i. Incised wound of 5 cm. x 1.5 c.m. x muscle deep. ii. Incised wound of 4 cm. x 1.5 cm. x muscle deep was on the back side of right arm forceps which towards on upper side on 1/3 part. Both these injuries were 1 cm. from each other and were in direction from upper to lower portion obliquely. iii. Incised wound deep till neck. Head was linked with chest from the skin near the neck. According to Dr. Verma, those injuries can be caused by very strong blow with the weapon of offence and that the injuries were sufficient in the ordinary course of nature to cause death. 23. The landmark judgment in Virsa Singh v. State of Punjab, (1958) 1 SCR 1495, draws a distinction between “Thirdly” of Section 300 and Exception 4 thereunder. The following are the four steps of inquiry involved: i. first, whether bodily injury is present; ii. second, what is the nature of the injury; iii. third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and iv. second, what is the nature of the injury; iii. third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and iv. fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. 24. In State of State of Andhra Pradesh v. Rayavarapu Punnayya and another, (1976) 4 SCC 382 , it was held that culpable homicide without the special characteristics of murder is culpable homicide not amounting to murder, falling under Section 304 of the Code. It was further held that there are three degrees of culpable homicide. The first is murder under Section 300; second, culpable homicide not amounting to murder falling under the first part of Section 304; and third is culpable homicide not amounting to murder falling under the second part of Section 304. To quote : “12. In the scheme of the Penal Code, ‘culpable homicide’ is genus and ‘murder’ its specie. All ‘murder’ is ‘culpable homicide’ but not vice-versa. Speaking generally, ‘culpable homicide’ sans ‘special characteristics of murder’, is ‘culpable homicide not amounting to murder’. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, ‘’culpable homicide of the first degree’. This is the greatest form of culpable homicide which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the first part of Section 304. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304.” 25. In Pappu v. State of Madhya Pradesh, (2006) 7 SCC 391 , the Court almost exhaustively dealt with the parameters of Exception 4 to Section 300 of the Code. Culpable homicide of this degree is punishable under the second Part of Section 304.” 25. In Pappu v. State of Madhya Pradesh, (2006) 7 SCC 391 , the Court almost exhaustively dealt with the parameters of Exception 4 to Section 300 of the Code. It was held that the said Exception can be invoked if death is caused (i) without premeditation; (ii) in a sudden fight; (iii) without the offender’s having taken undue advantage or acting in a cruel or unusual manner; and (iv) the fight must have been with the person killed. It was further held that all the four ingredients must be found in order to apply Exception 4. To quote: “13. ... The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”. 14. It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 IPC is ruled out. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”. 14. It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 IPC is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body on which it was given and several such relevant factors.” 26. In Jagriti Devi v. State of Himachal Pradesh, (2009) 14 SCC 771 , it was held that the expressions “intention” and “knowledge” postulate the existence of a positive mental attitude. It was further held that when and if there is intent and knowledge, then the same would be a case under first part of Section 304 and if it is only a case of knowledge and not intention to cause murder by bodily injury, then the same would be a case of second part of Section 304. To quote: “26. Section 299 and Section 300 IPC deal with the definition of “culpable homicide” and “murder” respectively. Section 299 defines “culpable homicide” as the act of causing death: (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such act is likely to cause death. A bare reading of the section makes it crystal clear that the first and the second clauses of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. Both the expressions “intent” and “knowledge” postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed. 27. Section 300 IPC, however, deals with murder although there is no clear definition of murder provided in Section 300 IPC. It has been repeatedly held by this Court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. 28. 27. Section 300 IPC, however, deals with murder although there is no clear definition of murder provided in Section 300 IPC. It has been repeatedly held by this Court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. 28. Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I 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 II. The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of this Court.” 27. In Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635 , after scanning all the previous decisions where the death was caused by a single blow, this Court indicated, though not exhaustively, a few factors to be taken into consideration while awarding the sentence. To quote: “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. To quote: “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 28. The list of circumstances enumerated above is only illustrative one not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the Court. The endeavour of the Court must be to ensure that the accused received appropriate sentence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused. 29. In the light of the principles which have been discussed fairly exhaustively, we have to analyze the factual position as to whether the appellant had the intention to cause death, or whether he only had the knowledge about the injury which is likely to cause death. We have also analyze the manner in which the injury is caused and provocation for the same. We have also analyze the manner in which the injury is caused and provocation for the same. The available evidence would show that there was no premeditation on the part of the appellant and that it was a case of sudden fight. It has to be noticed while appreciating the evidence of PW-1, PW-2 and PW-3, eye-witnesses have stated in their testimony that there were no motive, plan or premeditation to kill the deceased by accused. It has come out in these evidences that injury inflicted by the appellant was during the scuffle between the deceased and accused-appellant. There is nothing to show that there was any cruelty involved by inflicting any other injury or by any other conduct on the part of the appellant. So as to hold that appellant has taking any undue advantage of the situation or that he behaved in a cruel or unusual manner. Appellant and deceased was husband and wife and their relationship was very cordial. Thus, all the four ingredients required for treating the case under Exception 4 to Section 300 I.P.C. are satisfied in the instant case. 30. The next inquiry is whether the offence falls under first part of Section 304 or the second part. Having regard to the parameters indicated in Gurmukh Singh’s case (supra), the offence seems to fall under the second part. There is no evidence of motive or previous enmity. The incident has taken place on the spur of the moment. There is no evidence regarding the intention behind the fatal consequence of the blow. The appellant was young, there was no premeditation. The evolution fo the incident would show that it was in the midst of a sudden fight. There is no criminal background or adverse history of the appellant. The fatal blow was in the course of a quarrel and hitted arguments between two persons that has been no other act and cruelty or unusual conduct on the part of the appellant. 31. Thus, considering the aforesaid aspects, we are of the view that it is a fit case to alter the conviction from under Section 302 I.P.C. to 304 Part-II I.P.C. and sentenced him imprisonment for a period of 10 years with fine of Rs. 25,000/-. In the event of the appellant defaulting to pay fine, he shall undergo imprisonment for a further period of one year. 25,000/-. In the event of the appellant defaulting to pay fine, he shall undergo imprisonment for a further period of one year. In case the appellant has already served the term as above, he shall be released forthwith, if not required to be detained in connection with any other case. 32. Accordingly, the jail appeal is partly allowed. 33. The Registry is directed to sent the certified copy of the judgment and all original record of this case to the concerned Court below for compliance.