JUDGMENT Smt. Dubey, J.--1. This appeal has been filed by the appellant, being aggrieved by the judgment dated 30.10.2009, passed by Additional Judge to the Court Additional Sessions Judge, Mauganj, District Rewa in S.T. No. 50/2009, whereby the appellant has been found guilty of the offence punishable under section 302 of the Indian Penal Code and has been sentenced to imprisonment for life and fine of Rs.1,000/-, with a stipulation for two months rigorous imprisonment in case of default . 2. Prosecution case, in brief, is that the appellant and Rajmati are husband and wife and have three children namely, Tejbhan, Jagdish and Pramod. Elder son Tejbhan lived with the parents of Rajmati at Senuwa, whereas the two younger children lived with her at Kabra. Husband Suryamani was unemployed and vagabond and used to regularly and unceremoniously beat his wife and children. It is alleged that on 19.9.2009, at around 12 O'Clock and in the night also he had beaten both the children with stick and threw them on floor. Rajmati while trying to save them, had also received some beating. It is alleged that the family members and other villagers did not intervene being scared of accused. Next morning, at around 8.00 a.m. Rajmati alongwith her two children went to the house of her brother-in-law Ramcharit (PW16) at Dagdaua. Next day, accused came to Ramcharit's house and asked her to come back with him, which she refused and went to Hospital Mauganj for treatment of her son. During the treatment, Jagdish (deceased) succumbed to his injuries at around 3.00 P.M. 3. Dr. R.K. Mishra (PW20), who was the treating doctor, informed the SHO, Mauganj vide Ex. P-13 regarding the death of Jagdish. On the basis of this information, merg was recorded as Ex. P-14 at merg No.61/2008 (Ex. P-17) at Naigarhi Police Station. Body of the deceased was sent for postmortem examination. Rajmati and her other son Promod were also medically examined. Spot map was prepared and the statement of witnesses were recorded. After completion of investigation, charge sheet was filed. 4. To substantiate the charges, the prosecution has examined as many as 23 witnesses. The accused abjured his guilt and pleaded false implication. He, however, chose not to examine any witness in his defence. 5. Spot map was prepared and the statement of witnesses were recorded. After completion of investigation, charge sheet was filed. 4. To substantiate the charges, the prosecution has examined as many as 23 witnesses. The accused abjured his guilt and pleaded false implication. He, however, chose not to examine any witness in his defence. 5. The learned trial Court vide impugned judgment convicted the accused mainly relying on the testimony of injured eye witness PW13 Rajmati, and the medical evidence on record and found the appellant guilty of commission of an offence punishable under section 302 of the I.P.C. and sentenced him as aforesaid. 6. Mrs. Sushila Paliwal, learned counsel for the appellant/Amicus curiae has urged that the conviction is based only on the testimony of Rajmati (PW13). Her evidence is not supported by any other witnesses. It is argued that the Court has overlooked the fact that the child died due to the negligence of PW13 Rajmati herself, as she took him for treatment to the hospital after three days of the incident. In the alternate, it has been urged that the incident happened in a fit of anger and frustration. There was no motive, premeditation or intention to murder or kill the deceased. It is argued that the appellant had no knowledge that such an act would result in the death of a child and under these circumstances, the appellant could only be convicted under section 304 Part-I of the IPC and not under section 302 of the IPC. 7. The learned Government Advocate, on the other hand, has supported the impugned judgment and prayed for dismissal of the appeal. 8. We have heard the learned counsel for the parties at length and perused the record. It is evident from record that Smt. Maluaa (PW1), Rajkali (PW2), Rajkumar (PW3), Nandlal (PW5), Raniya (PW7), Kashi (PW8) , Rampragas (PW10), Buthuni (PW11) and Deependara (PW14), who are the parents and near relatives of the accused have not supported the story of prosecution and turned hostile. Similarly, Manvati (PW4), Shanti (PW6) and Sawailal (PW9), who are neighbours of the accused have also not supported the prosecution story and declared hostile. They all have denied the case diary statements too. 9. Similarly, Manvati (PW4), Shanti (PW6) and Sawailal (PW9), who are neighbours of the accused have also not supported the prosecution story and declared hostile. They all have denied the case diary statements too. 9. Rajmati (PW13), mother of the deceased and wife of accused, who is also an injured witness has categorically deposed against her husband stating that her husband do not work and roam around as vagabond and used to regularly beat the children. On 19.9.2008 also, he had given a beating with stick to both her children and her and threw the deceased on floor repeatedly, as a result of which, the deceased sustained grievous injuries and died during the treatment in the hospital. She had stated that she went to her brother-in-law's house on the next morning, where accused came and asked her to go back with him. She refused to go with him and took her son to hospital on next day, where he succumbed to the injuries. Her statement is corroborated by the medical evidence. 10. Dr. R.K. Mishra (PW20) had examined PW13 Rajwati and Pramod. He had found the following injuries on the person of injured Rajmati : (1) abrasion on front side of forehead 1 x 1/2 cm in size. (2) Pain in neck, chest and back. No bony tenderness found. All the injuries are simple in nature and caused by hard and blunt object within 24 hours of examination. Dr. R.K. Mishra found the following injuries on the person of injured Pramod : (1) Multiple abrasions over face and scalp. (2) Bruise and abrasion over face. (3) Bruise and Bluishness over back 3 x 2 inch right side of back on scapular region. (4) Multiple small injuries and abrasion over right side of scapular region (5) A large abrasion on the back. (6) Multiple abrasion above left iliac region. (7) Bruise above left iliac region. (8) Multiple abrasion on both sides of chest. All the injuries are caused by hard and blunt object and on pressing chest tenderness found. 11. Dr R.K. Mishra (PW20) had also conducted the autopsy on deceased Jagdish and found the following injuries : “Bluishness over back and front of the body. Multiple abrasions and bluishness over scapular region. Multiple small injuries below left side of scapular region. Multiple abrasions and bluishness on left side of hip above iliac crest. Multiple small abrasions all over the face. Multiple abrasions and bluishness over scapular region. Multiple small injuries below left side of scapular region. Multiple abrasions and bluishness on left side of hip above iliac crest. Multiple small abrasions all over the face. Spleen and kidney were ruptured and blood found in abdominal cavity.” The doctor had opined that death of Jagdish occurred due to Syncope as a result of excessive bleeding due to rupture of spleen and kidney. 12. The medical evidence corroborates the testimony of Rajmati (PW13). The prosecution has thus clearly established that the appellant is responsible for the homicidal death of Jagdish. 13. The point falling for consideration is weather the conviction of the appellant under section 302 of the I.P.C. is sustainable. It is evident from the statement of Rajmati (PW13) that the appellant was unemployed and he had no work and used to roam around. In his frustration and fit of anger he had beaten both of his children. Rajmati (PW13) also received injuries when she tried to save them. He also came after Rajmati to take her and the children home when she had gone to PW16 Ramcharit's house. Thus the sequence of events show that the incident happened without premeditation in a fit of anger and also from the action of appellant, it could not be said that he had intended to kill his son, which in our considered opinion would fall under exception 4 of section 300 of the IPC. 14. In the case of Arjun and others v. State of Chhattisgarh, 2017 (3) SCC 247 , the Supreme Court has held : 20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. Union Territory of Chandigarh (1989) 2 SCC 217 , it has been explained as under: “7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly…………..” 15. In the present case, looking to the sequence of occurrence, it could not be said that the intention of the appellant was to cause the death of the deceased. 16. Accordingly, the appeal succeeds and is partly allowed. The conviction of the appellant under section 302 of the I.P.C. is modified as conviction under section 304 Part-I of the I.P.C. 17. It is submitted that the appellant is in jail since 3.10.2008, therefore, he had already suffered jail sentence for more than 10 years. Hence, his jail sentence is reduced to the period already undergone by him. Appellant is ordered to be released forthwith, unless required in any other case. 18. A copy of the order sheet as well as this judgment be sent to the Secretary, M.P. High Court Legal Services Committee, Jabalpur for information and necessary action.