JUDGMENT : P. Somarajan, J. Against the judgment of conviction and the order of sentence under Section 302 IPC in Sessions Case No.607/2010, dated 27.06.2013, on the file of Sessions Court (Adhoc-I), Palakkad, the sole accused came up with this appeal. 2. One Saji @ Sajimon Jacob met with a sad death at his tender age of 28 years on 28.01.2008 at 10.00 a.m. in the hands of the accused who inflicted a stab injury on his chest with a knife after a scuffle, is the prosecution case. There is an earlier episode happened on the previous night in connection with the marriage of son/daughter of one Kunju at his house. His friends, relatives and neighbours assembled in his house. PW2 was also participated in the arrangements made in the house of Kunju on the previous night. During that night the accused trespassed into the bed room of PW2, the wife of PW9, and attempted to molest her. On the next day, when the accused came to the place of occurrence, the road in front of a tea shop, after sending his children to school, the deceased, who is the brother of PW2, confronted with him and had some heated exchange of words which has resulted in a scuffle. PW3, PW11 and CW2 were present in the said tea shop at that time. It is at that time the accused took a knife from his lap and inflicted a stab injury on his chest. 3. PWs 2, 3, 9 and 11 were examined by the prosecution in order to prove the complicity of the accused in the alleged crime. PW3 and PW11 are the occurrence witnesses. They are in agreement with what actually happened. PW2 and PW9 deposed about the earlier episode which was happened on the previous night. The accused, in answer to his examination under Section 313 Cr.P.C., submitted a written statement admitting the entire incident, but took a contention that he had inflicted injury on the victim by way of private defence as there was a massive attack on him by the victim along with three other persons. 4. There is only one incised wound (stab injury). The other injuries noted in the post-mortem examination report are two superficial lacerations and mere contusions and abrasions. 4. There is only one incised wound (stab injury). The other injuries noted in the post-mortem examination report are two superficial lacerations and mere contusions and abrasions. The cause of death is due to injury No.12 which is fatal and, according to the Doctor who conducted postmortem examination on the body of the deceased, it is having a measurement of 5.5x1 cm right side of chest oblique with lower inner sharp cut at the midline 2 cm above sternal notch. The other end was rather rounder than inner end and mildly contused. The wound entered in the chest cavity cutting the costal cartilages of 5 to 8th rib and then pierced the pericardium and entered the right atrium of heart 3.5x0.4 cm. The wound was directed backwards, upwards and to the left with a total minimum depth of 7 cm. Right lung was also found collapsed. Possibility of sustaining the above said injury in a moving position or twisting position was also deposed by PW5. This would show that the person who received the injury was either in a moving position or twisting position or the person who inflicted the injury had twisted or moved the weapon used for inflicting the injury both upwards, backwards and towards left side to a minimum depth of 7 cm. The weapon used for inflicting the injury is a sharp edged knife. It has pierced through ribs 5 to 8 cutting its cartilage and reached up to the right atrium of heart causing injury and also caused collapse of right lung. The force applied by the accused while inflicting injury on the chest of the victim with a sharp edged knife is well evident. The nature of injury, the place wherein the injury was inflicted -on a vital part of the victim, the user of a sharp edged knife and the force applied cutting cartilage of ribs 5 to 8 penetrating up to the heart, causing injury to the right atrium of heart, would amply reveal the intention of causing such bodily injury with knowledge that it would likely to cause death would bring the matter within the purview of clause (2) of Section 300 IPC. 5. 5. The accused sought the benefit of Exception (2) to Section 300 IPC during his examination under S.313 Cr.P.C. by admitting the entire incident and contended that there was a massive attack on him by the victim and three other persons and that he had inflicted injury by way of private defence. What is brought out through the witnesses examined by the prosecution is that it was at the instance of the victim the accused and the victim went to the place of occurrence, the other side of the road, from the tea shop and they had some heated exchange of words which has resulted in a scuffle in between them. None of the witnesses, PW3, PW11 or any other person, either involved or joined in the scuffle. They were simply standing nearby. If that be so, what actually prompted the accused to inflict a stab injury, that too on the vital part of the victim -left side of chest, causing a penetrating wound with a sharp edged knife has to be explained by the accused when seeking protection under the realm of private defence. A mere apprehension of danger to a person or property would be enough to bring the defensive action into motion as envisaged under Exception 2 to Section 300 IPC. But, it should be reasonable and well placed. In the instant case, the victim or none of the persons, who were present, were not armed. Even none of the persons except the victim and the accused involved in the scuffle. The accused was taken to the place by the victim and not by others. If that be so, there may not be any occasion for any apprehension as alleged by the accused. He can very well leave the place and nobody has prevented him from leaving that place. It is true that when there is reasonable apprehension of danger to his life or property and if he acts bravely in warding off that apprehension instead of running away from the place of incident, he cannot be held responsible for the offence, but it is not a universal proposition. Right of private defence is not an excuse for inflicting injury if there exists other means to ward off the danger. What is important is how far the accused acted so as to remove the danger to his life or property depends on the facts. Right of private defence is not an excuse for inflicting injury if there exists other means to ward off the danger. What is important is how far the accused acted so as to remove the danger to his life or property depends on the facts. It must have an element of self defence warranted by the act of other. The victim was not armed and no weapon was with him at the time of alleged scuffle. It is also not clear why the accused kept a knife in his lap. The accused alone was armed with a knife at that time. So, absolutely there is no scope for application of private defence, especially when the accused had not sustained any injury though such a case was advanced during his examination under Section 313 Cr.P.C. In short, we are unable to accept the defence set up by the accused by way of private defence. 6. During the examination of accused under Section 313 Cr.P.C., the only defence set up by the accused is under the 2nd exception attached to Section 300 IPC-a right of private defence. No case of benefit of exception No.4 to Section 300 IPC either raised at the time of trial or examination under Section 313 Cr.P.C. But there is only a slight difference between exception No.2 and exception No.4, though both are different in its very nature. Even in the absence of such a pleading it is well within the duty of the Court to consider any of the exceptions available under Section 300 IPC (see Babulal Bhagwan Khandare and Another v. State of Maharashtra [ (2005) 10 SCC 404 ]). The initial burden is always on the prosecution to establish the non application of any of the exceptions while fastening liability under Section 300 IPC. The burden lies on the accused to establish the benefit of any of the exceptions to Section 300 IPC would arise only when the initial liability on the prosecution is discharged. 7. The initial burden is always on the prosecution to establish the non application of any of the exceptions while fastening liability under Section 300 IPC. The burden lies on the accused to establish the benefit of any of the exceptions to Section 300 IPC would arise only when the initial liability on the prosecution is discharged. 7. In the instant case, though the injury was on the vital part of the victim, the facts that there is only one stab injury, there was a scuffle in between the victim and the accused, the accused was taken to that place at the instance of the victim and that it is the victim who gave the initial provocation would show that it is not a pre-planned murder or an intentional commission of offence. The genesis of the incident unfurled through the prosecution witnesses would amply show that the accused was simply going back to his house after sending his children to school and it is the victim who confronted with him in connection with the earlier incident alleged to have been happened on the previous night. The benefit of Exception 4 of Section 300 IPC can be invoked if death is caused :(a) without premeditation; (b) in a sudden fight; (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. In order to claim the benefit of Exception 4 of Section 300 IPC, all the ingredients mentioned in it must be satisfied. The expression “undue advantage” was explained by the Apex Court as “unfair advantage” in Sridhar Bhuyan v. State of Orissa [ (2004) 11 SCC 395 ]. It is also settled by the Apex Court what actually amounts to “sudden fight” and the ingredients which constitute Exception 4 to Section 300 IPC. The relevant portion is extracted below for reference. “... In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the original of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A “sudden fight” implies mutual provocation and blows on each side. A “sudden fight” implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be exception 1. there is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. 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. ” 8. The legal position was again reiterated by the Apex Court in Babulal Bhagwan Khandare and another v. State of Maharashtra ( (2005) 10 SCC 404 ), by explaining what amounts to “undue advantage or has acted in a cruel and unusual manner” occurring in fourth exception to Section 300 IPC. ” 8. The legal position was again reiterated by the Apex Court in Babulal Bhagwan Khandare and another v. State of Maharashtra ( (2005) 10 SCC 404 ), by explaining what amounts to “undue advantage or has acted in a cruel and unusual manner” occurring in fourth exception to Section 300 IPC. The relevant portion of the said judgment is extracted below for reference: “Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan (1993) 4 SCC 238 ) it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that by using the blows with the knowledge that they were likely to cause death he had taken undue advantage. In the instant case blows on vital parts of unarmed persons were given with brutality. The abdomens of two deceased persons were ripped open and internal organs had come out. In view of the aforesaid factual position, Exception 4 to Section 300 IPC has been rightly held to be inapplicable.” 9. The legal position laid down in Babulal Bhagwan Khandare's case (supra) was again applied by the Apex Court in Arumugham v. State (2008) 15 SCC 590 ). In an identical case in Vijender Kumar Alias Vijay v. State of Delhi (2010) 12 SCC 381 ), it was held that the case would not fall within Exception 4 to S.300 IPC and further held that “sine qua non for the application of an Exception to S.300 always is that it is a case of murder but accused claims benefit of the Exception to bring it out of S.300 and to make it a case of culpable homicide not amounting to murder”. It was also held that it is for the accused to prove the applicability of the Exception claimed. 10. In Vijender Kumar's case, though an identical one with the instant case, there is some slight change in the factual situation which, according to us, is so crucial. In that case the accused attacked the deceased by beating on him. It was also held that it is for the accused to prove the applicability of the Exception claimed. 10. In Vijender Kumar's case, though an identical one with the instant case, there is some slight change in the factual situation which, according to us, is so crucial. In that case the accused attacked the deceased by beating on him. When it was protested, the accused brought a knife from the boot of his scooter parked nearby and caused one injury with the knife in the abdomen of the deceased. In that case also, there is only one stab injury by using a knife. The victim was also a young man, but it was some what one sided attack on the victim and the accused got furious and started beating on him. When it was protested by the deceased, he brought a knife by opening the boot of his scooter parked nearby and inflicted a stab injury on his abdomen. 11. In Satish Narayan Savant v. State of Goa [ (2009) 17 SCC 724 ] there was a heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. The provocation and incident happened on the spur of moment. It was held that the case would come under fourth exception to Section 300 IPC and accordingly conviction altered to Section 304 Part II IPC. 12. In another case the deceased sustained one incised injury on his back which caused injury to scapular and spinal cord and another incised wound on his back just below the scapular causing injury to right lung and pleura. The injuries were sustained in a scuffle. It was found by the Apex Court in Dilip Kumar Mondal and Another v. State of West Bengal [ (2015) 3 SCC 433 ] that the case would come under the purview of Exception 4 to Section 300 IPC as it was happened in a scuffle between the parties without any pre-meditation. 13. In the instant case also, the alleged injury was sustained during the course of a scuffle between the accused and the deceased, happened all on a sudden without any premeditation. 13. In the instant case also, the alleged injury was sustained during the course of a scuffle between the accused and the deceased, happened all on a sudden without any premeditation. The fact that he had kept a knife on his lap may be by way of abundant caution in connection with the earlier episode happened on the previous night and it cannot be said that it was kept for the purpose of the alleged commission of offence which was happened on a sudden quarrel, initially instigated by the victim resulted in a scuffle between them. But when the weapon used or the manner of attack by the assailant is out of proportion, that circumstance must be taken into consideration to decide undue advantage. Since there is only one stab injury, though on a vital part by using the knife kept by him on his lap, under the given circumstances of sudden fight happened in a heat of passion ended in a scuffle without premeditation, it cannot be said that the assailant had taken any undue advantage or acted in a cruel manner, and the ratio applied by the Apex Court in Satish Narayan Savant's case (supra) and in Dilip Kumar Mondal's case (supra) can be safely applied in the instant case and it cannot be brought under the purview of “murder” as contained in S.300 IPC. But it would fall under Exception 4 to S.300 IPC. 14. Then the question comes whether it is Part I or Part II of Section 304 IPC which could be fastened against the accused when he falls outside the purview of murder as contained in Section 300 IPC, on any of the exceptions attached to it. The Apex Court in State of A.P. v. Rayavarapu Punnayya and another (supra), after taking note of the distinction employed under Section 299 and various clauses attached to Section 300 IPC, in reference to Section 304 held as follows: “21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of S.304, depending, respectively, on whether the second or the third Clause of S.299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in S.300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of S.304, Penal Code.” 15. In Arumughan's case (supra) the Apex Court had altered the conviction under Section 302 IPC into one under Part I of S.304 IPC on finding benefit of fourth exception to Section 300 IPC by awarding ten years' custodial sentence. 16. In yet another situation the Apex Court in Satish Narayan Savant's case (supra) held as follows: “36. … 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. … …. 41. 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. … …. 41. 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 on 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.” In that decision, the conviction under S.302 IPC was converted into the one under Part II of S.304 IPC. 17. Then again, in Muralidhar Shivram Patekar and another v. State of Maharashtra (2015) 1 SCC 694 ) the Apex Court had converted the conviction under S.302 IPC into one under S.304 Part II IPC on finding that the accused is entitled to the benefit of Exception 4 to S.300 IPC but sentence of ten years' imprisonment was ordered. 18. In Dilip Kumar Mondal's case (supra) the conviction under Section 302 IPC was converted and altered into conviction under Part I of Section 304 IPC. But in Satish Narayan Savant's case the conviction under Section 302 IPC was altered into one under Part II of Section 304 IPC by imposing seven years' imprisonment finding that there was no intention to kill or inflict an injury over a particular degree of seriousness. But in Satish Narayan Savant's case the conviction under Section 302 IPC was altered into one under Part II of Section 304 IPC by imposing seven years' imprisonment finding that there was no intention to kill or inflict an injury over a particular degree of seriousness. There was heated exchange of words and scuffle between the parties in a particular room, during the course of which, the appellant had received simple injury followed by the incident of stabbing. The incident was happened on the spur of moment on provocation. The application of part II of Section 304 IPC was also considered and held that it is applicable when 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, after reiterating the distinction between Sections 299 and 300 IPC. 19. In Abdul Waheed Khan v. State of A.P. [ 2002 (7) SCC 175 ] the Apex Court had laid down the following: “13. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. 14. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. 14. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words 'sufficient in the ordinary course of nature' have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words 'bodily injury …... sufficient in the ordinary course of nature to cause death' mean that death will be the 'most probable' result of the injury, having regard to the ordinary course of nature. 15. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. 15. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant Singh v. State of Kerala [ AIR 1966 SC 1874 ] is an apt illustration of this point.” 20. In Rajwant Singh v. State of Kerala [ AIR 1966 SC 1874 ] the Apex Court considered a case wherein bodily injury consisted of tying up the hands and feet of the victim, closing the mouth with adhesive plaster and plugging the nostrils with cotton soaked in chloroform. After having a close scrutiny of Section 300 IPC with its four clauses, it was found by the Apex Court that the case would not come under any of the exceptions to Section 300 IPC, but it would fall under the clause thirdly of Section 300 IPC. The relevant portion is extracted below for reference: “The first clause applies if the act by which death is caused is done with the intention of causing death. An intention to kill a person brings the matter so clearly within the general principle of mens rea as to cause no difficulty. Once the intention to kill is proved, the offence is murder unless one of the exceptions applies, in which case the offence is reduced to culpable homicide not amounting to murder. The second clause applies if there is first the intention to cause bodily harm and next there is the subjective knowledge that death will be the likely consequence of the intended injury. English Common Law made no clear distinction between intention and recklessness but in our law the foresight of the death must be present. The mental attitude is thus made of two elements -(a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death. For the application of clause three it must first be established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is established. The last clause is ordinarily applicable to cases in which there is no intention to kill any one in particular. It comprehends, generally, the commission of imminently dangerous acts which must in all probability cause death.” 21. The crucial question whether the offence would fall under Part I or Part II of Section 304 IPC when found to be outside the purview of Section 300 IPC on account of any of the exceptions attached to, has to be answered in reference to the legal position settled by the above said decisions. In fact, there is no conflict regarding the legal position whether Part I or Part II of Section 304 IPC would apply when it is found to be outside the purview of Section 300 IPC on account of any of the exceptions attached to it. 22. Chapter XVI of the Indian Penal Code deals with offences affecting the human body. It is by virtue of Section 299 IPC what is amount to 'culpable homicide' is defined. It includes causing of death by doing (1) an act with the intention of causing death, or (2) with the intention of causing such bodily injury as is likely to cause death, or (3) with the knowledge that by such act likely to cause death. It covers three situations. The expression “intention” is conspicuously absent in the third category of cases under Section 299 IPC. The cases which would come under the purview of first and second limbs of Section 299 IPC were brought under the purview of “murder” under the first three clauses attached to Section 300 IPC. But certain cases which would fall under the third limb of Section 299 IPC were brought under the fourth clause to Section 300 IPC. All the four clauses of Section 300 IPC are subject to exceptions 1 to 5 incorporated therein and on satisfaction of any of the exceptions, the offence committed would stand outside the purview of “murder” as envisaged under Section 300 IPC. All the four clauses of Section 300 IPC are subject to exceptions 1 to 5 incorporated therein and on satisfaction of any of the exceptions, the offence committed would stand outside the purview of “murder” as envisaged under Section 300 IPC. When it satisfies any of the four clauses in Section 300 IPC, but brought outside the purview of “murder” on any of the exceptions enumerated therein, a conviction under Section 304 Part I would be possible only when it satisfies either the first or the third clause of Section 300 IPC, wherein the crucial ingredient which makes the difference is the existence of “intentional” commission of offence from that of second and fourth clauses, wherein the existence of “knowledge” is the crucial ingredient. It is not the exception, but the clauses to Section 300 IPC governs the field as to whether Part I or Part II of Section 304 IPC would come into play. Part I of Section 304 IPC covers the situation which would fall under first or the third clause of Section 300 IPC. But in clauses second and fourth the main emphasis is on the existence of “knowledge”. When a case which would fall under first or third clause to Section 300 IPC is found to be outside the purview of “murder” on account of any of the exceptions attached to it, it would attract liability under Part I of Section 304 IPC. But the cases which would fall under second and fourth clauses to Section 300 IPC once found to be outside the purview of “murder” on account of any of the exceptions, a conviction under Part II of Section 304 IPC is proper. Hence, the present case would fall under the category of Part II of Section 304 IPC. Hence, the appeal is allowed in part. Finding of guilt of accused under Section 302 IPC and the conviction and sentence thereunder are hereby set aside. The accused is found guilty for the offence punishable under Section 304 Part II IPC and he is convicted thereunder and sentenced to undergo rigorous imprisonment for a period of eight years and a to pay fine of Rs.1,00,000/- (Rupees one lakh), in default, to undergo simple imprisonment for another period of one year. The fine amount shall be released to the legal heirs of the deceased under Section 357(1) Cr.P.C. on its realization. The fine amount shall be released to the legal heirs of the deceased under Section 357(1) Cr.P.C. on its realization. The accused is entitled to set off the period of pre-trial detention, if any, undergone.