JUDGMENT & ORDER : ARINDAM LODH, J. 1. This is an appeal under Section 374 of the Code of Criminal Procedure, 1973 directed against the judgment and order dated 15/02/2010 passed by the learned Sessions Judge, West Tripura, in case No. ST 150/2009. 2. Briefly stated, the facts are that one Kamalini Orang has lodged an ejahar to the Officer In-charge, Sidhai Police Station complaining inter alia, that one Dipali Chetri, aged about 18 years at about 2.30 O’clock entered into her room after washing the utensils and at that time one Sushil Debbarma went into her room and when Dipali Chetri shouted by saying “save me”, then she and her daughter came near to the room and saw the door of the room was closed. Sushil Debbarma with a dagger (knife) in his hand inside the room caught hold of Dipali and was asking Dipali to accompany him otherwise he would kill her and he would also die. At that moment, the complainant Kamalini and her daughter asked to open the door when Sushil Debbarma stated that this was a matter between him and Dipali and if they tried to enter into the room, he would kill them. 3. On hearing this word, out of fear kamalini and her daughter went to some distance away and started shouting. At that moment people from outside arrived at the spot and they together broke the door and went inside and saw severe injury on the body of Dipali and she was incapable of talking. At that time, Sushil was also lying by the side in the state of sustaining injury. The name of the father of Dipali is Lal Bahadur Chetri. The complainant has further stated that Sushil Debbarma used to reside by the side of the house of Lal Bahadur Chetri since long and he used to disturb the girl always. On the date of occurrence at about 2/3 O’clock noon, he tried to take the girl forcibly and as she did not consent, said Sushil killed her and inflicted injury to his own body. 4. The written complaint of Kamalini Orang was marked as Exbt.-6. On the basis of the said complaint the Officer In-charge of Sidhai Police Station registered a case bearing No. 05/2009 dated 15/01/2009 under Section 448/302 of the IPC. 4. The written complaint of Kamalini Orang was marked as Exbt.-6. On the basis of the said complaint the Officer In-charge of Sidhai Police Station registered a case bearing No. 05/2009 dated 15/01/2009 under Section 448/302 of the IPC. The people gathered at the place of occurrence handed over Sushil to BSF Jawans, who handed over him to police personnel arrived at P.O. after a while. Sushil Debbarma was admitted to hospital by police who was on police protection during his admission period in hospital. Just after his recovery he was arrested. 5. During the course of investigation SI Sri Rakhal Mitra examined the witnesses and recorded their statements, arranged post mortem examination of the dead body of Dipali Chetri and on completion of investigation submitted charge-sheet against accused Sushil Debbarma under Section 448/302 IPC. 6. The learned Sessions Judge has framed the charge as under:- “I, G. Debnath, Sessions Judge, West Tripura, Agartala, do hereby charge you- Shri Sushil Debbarma as follows:- That, you on 15.01.2009, at about 14.30 hours at Rangamura, in the house of Lalbahahadur Chetri, under Sidhai P.S. committed murder by intentionally or knowingly causing the death of Depali Chetri, D/O. Shri Lalbahadur Chetri of Rangamura, Katlamara, Sidhai and thereby committed an offence punishable under Section 302 of IPC and within my congnizance. And I hereby direct that you be tried by this Court of Sessions on the said charge.” 7. The prosecution relied upon as many as 19 witnesses to substantiate the charge framed against Sushil Debbarma. After closure of the prosecution evidence, the accused person was examined as under Section 313 (1)(b) Cr.P.C. Accordingly, the learned Court below had recorded the answers given by the accused person. 8. PW1, Kamalini Orang and PW5, Smt. Alomani Orang (mother and daughter respectively), are the persons who were working near the house of Dipali and met Sushil and on query Sushil had disclosed that he was wondering purposelessly at around 2.30/3 p.m. Both of them had noticed that Dipali after washing her utensils entered into her room when all on a sudden Sushil entered into her living hut and closed the door and at that time they heard Dipali raising alarm. Both of them went near the hut of Dipali and found Sushil standing with a knife. With one hand he caught hold of Dipali and by another hand he pointed the dagger towards Dipali. Both of them went near the hut of Dipali and found Sushil standing with a knife. With one hand he caught hold of Dipali and by another hand he pointed the dagger towards Dipali. Sushil also threatened them not to enter into the room and close the door at once. Out of fear they raised alarm and a few village people Archana Orang, Ajit Sarkar and others arrived and then they forcibly opened the door and discovered Dipali lying on the cot on a pool of blood and Sushil was lying on the floor inside the hut. 9. The village people also called BSF personnel. Sushil was handed over to BSF personnel. At that time Dipali was alone in the hut. PW1 in her deposition has stated that the living hut of Dipali is visible from the place where PW1 had been working. During her examination she also identified the knife (dagger) used in the offence and one polythene bag and some wearing apparels which the police had seized from the place of occurrence. 10. PW1 in her statement also stated that Ajit Sarkar also rushed to the place of occurrence and said Ajit Sarkar during his examination as PW8 had deposed that he found huge gathering in the house of Lal Bahadur Chetri and found Dipali with stab injuries on her belly with profuse bleeding. 11. Smt. Archana Orang, PW2 during her examination also has deposed that she heard Dipali raising alarm and rushed to her house when she found Alomani and her mother there. They opened the door on a push and found Sushil caught hold of Dipali with a dagger in his hand. She also supported the version of complainant-Kamalini, PW1 that Sushil threatened them with dire consequences. She rushed to the BSF camp and after her return found that Dipali was being carried to hospital since she was heavily injured. She also found Sushil with injury on his person. Police personnel also arrived at that place of occurrence and arrested Sushil. She identified Sushil in the dock. 12. PW3, Sri Chandan Saha has deposed that in presence of him Darogababu recorded the statement of Kamalini Orang where she had stated that Sushil Debbarma attacked Dipali by dagger and Dipali was taken to the hospital. Darogababu also seized blood stained white ganji with dagger (knife) and wearing apparels of Sushil Debbarma and a while plastic bag. 12. PW3, Sri Chandan Saha has deposed that in presence of him Darogababu recorded the statement of Kamalini Orang where she had stated that Sushil Debbarma attacked Dipali by dagger and Dipali was taken to the hospital. Darogababu also seized blood stained white ganji with dagger (knife) and wearing apparels of Sushil Debbarma and a while plastic bag. He put his signature in the seizure list and also identified the same. His signature was marked as Exbt.-1. The dagger was marked MO1 and the wearing apparels and bag Exbt.-MO2 and MO3 respectively. He has further stated that BSF personnel handed over Sushil Debbarma to police personnel. 13. PW4, during his examination has deposed that he hired a vehicle out of sympathy for shifting injured Dipali to GB hospital. He also identified the seizure list as well as his signature in the seizure list which is marked as Exbt.-1/1. 14. PW6, Lal Bahadur Chetri has stated that on being told by his employer he along with his wife went to their house and found Archana Orang & Alomani Orang and they narrated the entire incident to PW6. After that he went to GB Hospital and found his daughter was dead with grievous injuries. He has further deposed that earlier Sushil initiated a marriage proposal with daughter to which they were not at all interested. He also identified the seized articles. 15. PW7, Sri Krishna Malakar at the time of his examination has stated that he saw Dipali was being taken to hospital in a pool of blood. He went to Katlamara hospital from where she was referred to GB Hospital. He also identified the seized articles. 16. PW9, Sri Chandan Saha while deposing has stated that when he arrived at the spot he found the hut of Dipali was closed from inside and somebody was crying, when he requested to open the door. At that moment, one woman brought BSF Jawans from BSF Camp. Village people and BSF Jawans broke the door and opened the door and found Dipali lying on the cot in a pool of blood and Sushil was also found lying nearby. 17. PW10 & PW11 also corroborated the statements of PW1 and other witnesses. 18. PW12, Smt. Hemalata Chetri being the mother of Dipali has deposed the way her husband deposed and corroborated the statement of LaL Bahadur Chetri, PW6. 19. 17. PW10 & PW11 also corroborated the statements of PW1 and other witnesses. 18. PW12, Smt. Hemalata Chetri being the mother of Dipali has deposed the way her husband deposed and corroborated the statement of LaL Bahadur Chetri, PW6. 19. PW13 & PW14 also corroborated the version of PW1 and other witnesses. 20. P.W.15, Dr. Ranjit Das, who conducted Post Mortem Examination over the dead body of Dipali found one stab wound measuring 2.2 cm X .9 cm X cavity deep on the left lower anterior chest wall which 23 cm below top of left shoulder and 5 cm left of mid line. Another stab wound measuring 3 cm X 1.5 cm abdominal cavity deep on the left side of upper anterior abdominal wall which 7.5 cm. And 4 cm left of mid-line. Another stab injury measuring 4.2 cm X 2 cm abdominal cavity deep over upper anterior abdominal wall which was 4.5 cm above umbilicus and 1 cm right of mid-line. Another punctured wound measuring 1.8 cm X 0.9 cm X 1.5 cm over the right side of lower part of anterior chest wall situated 23 cm below top of shoulder and 9 cm right of mid line. 4 nos. of incised wounds ranging from 0.7 X 0.1 X 0.2 to 0.5, 0.2 X 0.3 cm on the palmer surface of the distal phalanges of little ring index finger and thumb of left hand. Scratch abrasion measuring 3 cm X 1.5 cm over the dorsal of left wrist. Abrasion measuring 1.5 cm X 1 cm on the front of left knee. According to the doctor, the cause of death was shock and hemorrhage due to multiple injury and injury nos. 1,2&3 were fatal and sufficient to cause death. 21. Learned counsel, Ms P Dhar, appearing on behalf of the appellant has submitted that PW1 in her cross-examination has admitted that Darogababu directed her to lodge the ejahar and accordingly, she lodged the ejahar. 22. On this point, the learned Sessions Judge has opined that FIR not being substantive piece of evidence is used for corroboration or contradiction. PW1, PW2 & PW5 are the eyewitnesses of the occurrence of the incident. 22. On this point, the learned Sessions Judge has opined that FIR not being substantive piece of evidence is used for corroboration or contradiction. PW1, PW2 & PW5 are the eyewitnesses of the occurrence of the incident. The learned Sessions Judge has observed that PW1 was illiterate and day labour and it is not unlikely for a witness of the stature of PW1 that while facing the rigour of cross-examination, the witness may succumb here and there. So the totality of the statement of the witness has to be considered. Besides, other witnesses especially PW2 and PW5 arrived at the place of occurrence with PW1 have not been shaken in any way either in examination in chief or in cross examination. Thus, even though PW1 gave a statement while facing cross-examination that Darogababu dictated the ejahar, it does not throw any light of doubt on the truthfulness of the prosecution case. 23. Furthermore, it does not cast even the slightest doubt on the other statements of this witness, that she was an eye witness of the occurrence when PW6 and PW12, Smt. Hemalata Chetri the mother also found PW1 at the place of occurrence. The statement of PW3 also has confirmed the presence of Smt. Kamalini Orang, PW1. PW2 also confirmed the presence of the PW1 and her daughter Alomani Orang. 24. We have analysed the statements in cross examination and suggestions given by the defence when they tried to shake the evidence of the presence of the complainant PW1, Smt. Kamalini Orang, but considering the evidence of all the witnesses, the presence of Kamalini Orang, PW1 is proved beyond any doubt. 25. Learned counsel, Ms. P. Dhar has found fault in the prosecution case due to non-examination of the BSF personnel. In our opinion, it is no more res integra that the prosecution has a liberty of fair selection of witnesses. More so, we find there are number of credible and trustworthy witnesses and the witness, i.e. PW2, Archana Orang who brought the BSF Jawans has been examined and has given a vivid description of the occurrence. We find no reason to nourish any defect or doubt in the prosecution case for non-examination of the BSF Jawans. 26. More so, we find there are number of credible and trustworthy witnesses and the witness, i.e. PW2, Archana Orang who brought the BSF Jawans has been examined and has given a vivid description of the occurrence. We find no reason to nourish any defect or doubt in the prosecution case for non-examination of the BSF Jawans. 26. The defence has also tried to create confusion about the presence of accused Sushil at the place of occurrence because of the fact that PW17, ASI Sanjib Chakraborty though arrived at the place of occurrence, did not lodge the FIR. But PW19, the IO in his cross-examination he stated that the information of PW17 was entered in GD entry No. 544. ON further being questioned what is GD entry No. 535, the answer is PW19 in cross-examination has stated that he went out of the PS vide GD entry No. 535. Therefore, there is no reason to doubt the contents of GD entry No. 535 or 544. And thus no further story can be put on the first information report so as to create any doubt on the truthfulness of the contents of the FIR i.e. Exbt.-6. 27. We reiterate that FIR is not the substantive piece of evidence but is used for corroboration and contradiction. What is required is that, in the FIR, the complainant should give a broad story of the prosecution case but it does not require the minute description of the incident. Thus, it is not a contradiction which throws any doubt on the truthfulness of PW1, the complainant, Smt Kamalini Orang. 28. On the basis of the evidence, the learned Sessions Court has attributed a motive on the accused person that the refusal by Dipali to marry led the accused Sushil Debbarma to kill her. Dipali pleaded Sushil to release her but Sushil did not release her and after discussion the learned trial court has come to the conclusion that the motive of the accused Sushil Debbarma has been proved and convicted and sentenced the accused to suffer imprisonment for life for committing offence punishable under Section 302 IPC. 29. The question, however, still remains as to the nature of the offence committed by the accused, in the light of the facts of the present case and considering the evidence on record, whether it falls under exception 4 of Section 300 of IPC. 29. The question, however, still remains as to the nature of the offence committed by the accused, in the light of the facts of the present case and considering the evidence on record, whether it falls under exception 4 of Section 300 of IPC. For convenience exception 4 of Section 300 may be reproduced below:- “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.” 30. In Surinder Kumar v. Union Territory of Chandigarh, reported in (1989) 2 SCC 217 ) the Apex Court held as follows: “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 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. (emphasis supplied) Further in the case of Arumugam v. State, (2008) 15 SCC 590 in support of the proposition of law that under what circumstances Exception 4 to Section 300, IPC can be invoked if death is caused, it has been explained as under:- “18. 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. 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 the Penal Code, 1860. 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 had 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?. Further in the case of Satish Narayan Sawant v. State of Goa, (2009) 17 SCC 724 this Court has held as under: 24. …….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. 28. ………Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. There is, therefore, provocation and the incident happened at the spur of the moment. There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section 304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.” 31. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. 32. In the case in hand, there is no evidence that the accused-appellant Sushil Debbarma was carrying a knife or any other weapon so that we can arrive at a finding that there was a clear intention of the accused-appellant to kill Dipali. 33. After scrutinizing the evidence in its entirety, we can arrive at a finding that the quarrel between the accused-appellant and the deceased was aggravated due to rejection by Dipali to accompany the accused-appellant, leading to a scuffle between them and the scuffle was converted into a sudden fight and it is proved there was no premeditation and the subsequent stabbing was the result of the fight in the heat of passion. Premeditation calls for construction of a plan to execute a certain act. If the accused had planned on confronting and eventually committing the act of a murder against the deceased, then he would not have executed the same in the hut of the deceased itself and above all, in the presence of a number of witnesses. 34. Hence, we are of the opinion that there was no premeditation on the part of the accused and scuffle took place due to the rejection of proposal of accompanying the accused-appellant by the deceased. It has come to the light in the evidence that the accused-appellant was a frequent visitor at the house of the deceased, the fact of which has been corroborated the parents of the deceased themselves. 35. It has come to the light in the evidence that the accused-appellant was a frequent visitor at the house of the deceased, the fact of which has been corroborated the parents of the deceased themselves. 35. We have examined the evidence along with the medical evidence. It is not in dispute that the accused has also received injuries. From the evidence, it has come up that the Investigating Officer also seized one blood stained white Ganji (Banian), one full sleeve shirt and the wearing apparels of Sushil Debbarma and he has been hospitalized. The accused-appellant was admitted in the hospital on 15/01/2009 and released therefrom on 27/01/2009 when he was formally arrested. Police was posted at the hospital where the accused-appellant was treated. 36. It is well settled that the accused did not prove the plea of self-defense beyond all reasonable doubt but if by preponderance of probabilities his plea becomes plausible then he has to be given that benefit. However, by inflicting some incised injuries on the deceased he seems to have acceded the same. The injuries caused upon the body of the accused-appellant substantiates the fact that the counter attack inflicted by the deceased upon the accused-appellant caused sudden provocation when the accused hit the deceased causing fatal injuries on the chest and upper abdomen of the deceased. 37. In a recent decision of the Supreme Court in Murlidhar Shivram Patekar Vs. State of Maharashtra reported (2015) 1 SCC 694 , the Supreme Court has also affirmed the above principle. 38. According to us, the incident took place out of grave and sudden provocation without any premeditated intention and hence, the accused is entitled to the benefit of Exception 4 of Section 300 of IPC. 39. Thus, after considering the factual aspects of the case in hand as well as the legal evidence on record and in the background of legal principles laid down by the Apex Court in the cases referred to supra, the act of the accused was not a cruel act and the accused did take undue advantage of the deceased. The scuffle and fight leading to the death of the deceased took place in the hit of passion and according to us, all the requirements of Exception 4 of Section 300 IPC have been satisfied. The scuffle and fight leading to the death of the deceased took place in the hit of passion and according to us, all the requirements of Exception 4 of Section 300 IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300 IPC is attracted to the fact situation and accused-appellant is entitled to those benefits. 40. In the result, the conviction of the accused-appellant under Section 302/149 IPC is altered to one under Section 304 Part II of the IPC and we commute the accused-appellant to suffer RI for the period he has already suffered i.e. almost for 9 years by way of setting off the period the appellant-accused has already undergone, as it would meet the ends of justice. 41. The accused Sushil Debbarma be released forthwith if not required in any other case. 42. Accordingly, the appeal is partly allowed to the extent as indicated above.