ORDER : Manindra Mohan Shrivastava, J. 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 25-06-2013 passed by the First Additional Sessions Judge, Ambikapur, District Surguja in Sessions Trial No. 527/2010, whereby and whereunder the appellants-Shivram, Bandhani Bai, Moharmati and Shivdhan have been held guilty for commission of offence under Section 147, 323/149 and 302/149 of IPC and sentenced them, as described below-- Section-147 IPC Rigorous Imprisonment for one year Section-323/149 IPC Rigorous Imprisonment for one year Section 302/149 IPC Life Imprisonment and fine of Rs. 1,000/-, in default of payment of fine, the appellants have to undergo additional Rigorous Imprisonment for one month All the sentences are ordered to run concurrently. By the impugned judgment, the appellants-Sadhan alias Sadhun, Baleshwar Ram, Sonsai and Luv Kumar have been acquitted from the charges under Section 294/149, 506-B/149 of IPC as also under Section 147, 323/149, 302/149 of IPC. 2. The prosecution story, as unfolded from the impugned judgment and records of the case is that the on 24-08-2010 in the afternoon, the appellants and others went to the house of one Sardar, his father Naiya Ram, mother-Punni Bai (the deceased), Brother Aasun and Sister Sewanti hurling abuses and making allegations that Sardar, the son of the deceased had stolen their bicycle and concealed somewhere, whereas Sardar and others denied those allegations and fight took place. Thereafter, the appellant Shivram informed his uncle Baleshwar on mobile phone and thereafter, they all left by stating that a report would be lodged in the police station. In the said fight, IMaiya Ram (father), Punni Bai (mother), Aasun (brother) and Sewanti Bai (sister) as also Sardar all sustained injuries on various parts of their body. Further case of the prosecution is that on the same date, at about 8 PM in the night, when Sardar was present along with family members in the house, Baleshwar and others came to their house, abused and assaulted. Thereafter, it is alleged, again at about 10 PM in the night, Baleshwar came along with his associates and opened assault, resultantly Punni Bai felt unconscious, whereafter all the accused ran away. On the next day, Punni Bai was taken to the hospital, where she succumbed to death. Thereafter, it is alleged, again at about 10 PM in the night, Baleshwar came along with his associates and opened assault, resultantly Punni Bai felt unconscious, whereafter all the accused ran away. On the next day, Punni Bai was taken to the hospital, where she succumbed to death. Thereafter, FIR was lodged in the Police Station Sitapur, on which, crime for alleged commission of offence under Section 147, 148, 294, 506, 323 and 307 of IPC against the appellants and other accused was registered. Dead body of Punni Bai was sent for postmortem and Dr. A.K. Nagdeve, PW-13, after conducting postmortem, reported that Punni Bai had sustained internal injuries, hemorrhage and shock, due to which, she died. According to Dr. A.K. Nagdeve, PW-13, death was homicidal in nature. Aasun, Sewanti, Sardar and Naiya Ram were also medically examined and reports were prepared. The appellants and other accused were arrested, investigation was conducted and upon completion of usual investigation, charge sheet was filed which led to trial of the appellants and other accused for alleged commission of offence. Though, the learned trial Court held the appellants herein guilty of commission of offence alleged, but acquitted Sadhan, Baleshwar, Son Sai and Luv Kumar. During the pendency of this appeal, one of the appellants-Bandhani Bai died. Therefore, the appeal survives only on behalf of appellants-Shivdhan, Shivram and Moharmati. 3. Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant argued that as far as present appellants are concerned, prosecution story suffers from serious discrepancies and contradictions, which make it highly doubtful that it was a case of assault given by the present appellants, as a result of which, Punni Bai had sustained fatal injuries and succumbed to death. It is argued that according to merg intimation, FIR and the case diary statements, the appellants Shivdhan, Shivram and Moharmati were alleged to have gone into the house of Sardar only in early hours of the day, where some kind of altercation and quarrel took place, whereafter they all came back. The prosecution story of assault to Punni Bai is that in the evening, Baleshwar and others came to the house of Sardar and Punni Bai at about 8 PM in the night and thereafter, at about 10 PM, Punni Bai was assaulted by hands and fists. The prosecution story of assault to Punni Bai is that in the evening, Baleshwar and others came to the house of Sardar and Punni Bai at about 8 PM in the night and thereafter, at about 10 PM, Punni Bai was assaulted by hands and fists. Therefore, the evidence of eye-witness Naiya Ram, PW-1 suffers from serious contradictions and omissions with regard to very presence of these appellants in the incident of assault in the evening. As far as deposition of assault in the afternoon is concerned, the same suffers from material omissions and is complete improvement on the case diary statements and in contradiction to what has been written in the FIR. It is also argued that the evidence of Naiya Ram, PW-1, Sewanti Bai, PW-2, Sardar, PW-8 and Aasun, PW-9 is liable to be disbelieved. It is argued that at the time, when FIR and Merg Intimation was recorded and diary statements were taken, the only role alleged to be played by the appellants was that they had come in the afternoon and quarrel had taken place, but thereafter, when the incident took place in the evening at about 8-10 PM, they were not present. Next submission of learned counsel for the appellants is that in the present case, according to the prosecution, it was a free fight between the parties involving family members from both the sides, in which, assaults were exchanged by hands, fists and legs and no weapon was used. Therefore, it was a simple case of cockfight, in which, unfortunately, the internal rupture was caused to Punni Bai, without there being any intention to cause her death. Punni Bai had sustained internal injury of rupture of artery, but she was taken to the hospital belatedly on the next day, and therefore, it is not a case of gravity of assault, but negligence in the treatment that Punni Bai died. Lastly, it is submitted that the dispute had taken place between the parties at the spot as also altercation, because the appellants party had suspected that Sardar had stolen bicycle. It was a case of sudden fight without any pre-meditation and it cannot be said that the appellants had taken any undue advantage or acted otherwise in a cruel manner. Lastly, it is submitted that the dispute had taken place between the parties at the spot as also altercation, because the appellants party had suspected that Sardar had stolen bicycle. It was a case of sudden fight without any pre-meditation and it cannot be said that the appellants had taken any undue advantage or acted otherwise in a cruel manner. Therefore, exception-4 of Section 300 of Cr.P.C. would be attracted and conviction of the appellants, at the most, could be maintained under Section 304 Part-II of IPC for culpable homicidal not amounting to murder. The appellants have already undergone 8 years of rigorous imprisonment, therefore, the sentence awarded to the appellants under the impugned judgment may be altered to the period already undergone by them and they may be released. 4. On the other hand, learned State counsel would support the impugned judgment of conviction and order of sentence by submitting that the appellants have been named in the FIR. Merg intimation, case diary statements and the statements of eye-witnesses have clearly deposed that all of them had come to the house of Sardar and Punni Bai and they had assaulted Punni Bai, Sardar, Naiya Ram, Aasun and Sewanti Bai and thus, all the members of the family were assaulted and beaten up, in which, Punni Bai had sustained injury. Merely because, at different point of time, the appellants and other accused came in different groups, it cannot be said that the appellants had not given any assault to Punni Bai and her family members. Further submission is that according to the evidence of Dr. A.K. Nagdeve, PW-13 and the postmortem report, Punni Bai died because of severe fists, hands and legs blow on various parts of her body including critical part in the chest, which led to internal hemorrhage. Therefore, from the evidence that Punni Bai was repeatedly assaulted on various parts of body including chest, clearly shows that there was an intention to cause death. Learned State counsel would further argue that it is not a case of sudden fight without premeditation. The appellants came to the house of the deceased as aggressor and assaulted her and therefore, it cannot be said to be a case of sudden fight. Not only this, the appellants and other accused repeatedly came to the house of the deceased on three occasions on the same day, assault was repeated. The appellants came to the house of the deceased as aggressor and assaulted her and therefore, it cannot be said to be a case of sudden fight. Not only this, the appellants and other accused repeatedly came to the house of the deceased on three occasions on the same day, assault was repeated. Therefore, the element of sudden quarrel is totally absent. 5. According to the prosecution story, the appellants and other accused had come to the house of Sardar, who resided with his father Naiya Ram, mother-Punni Bai, brother-Aasun and sister-Sewanti Bai. According to the prosecution, the appellants and other accused went to the house of the deceased on three occasions, one early in the afternoon and other at 8 to 10 PM in the night. It is alleged that every time Punni Bai and other members of the family were assaulted. It is also not in dispute that the appellants were not armed and even according to the prosecution, quarrel had taken place between the parties, which led to fight with hands, fists and legs. 6. Naiya Ram, PW-1, husband of the deceased, deposed that he had gone to another village along with his wife Punni Bai and came back at about 10-11 AM in the morning, then he found that his son-Sardar was being assaulted by Shivram and associates. He states that Shivram was making an allegation that Sardar had stolen bicycle. He has further deposed that along with Shivram, present appellant, Moharmati and Shivdhan were also present. He has further deposed that these persons were giving assaults to Sardar by hands and fists and when he made an attempt to intervene and rescue his son, he was also assaulted by hands and fists. He has sustained injuries in his ribs. His son Aasun and daughter Sewanti also reached at the spot. Therefore, Shivram had given report in the police station. At that stage, Moharmati called other members of the family and in the night, Moharmati, Shivdhan and Shivram and others entered into fight and assaulted by hands and fists, in which, Punni Bai was also assaulted, due to which, she sustained injuries on her head, waist and back. On the next day, Punni Bai was taken to the hospital and admitted and finally, she died. He has proved merg intimation, Ex. P-1 and FIR, Ex. P-2. On the next day, Punni Bai was taken to the hospital and admitted and finally, she died. He has proved merg intimation, Ex. P-1 and FIR, Ex. P-2. As he has not supported the prosecution case, in respect of other accused, he has been declared hostile. In his cross-examination, he has stated that incident of marpeet had taken place thrice. He has stated that quarrel took place on three occasions, but he says that marpeet (fight) had taken place only on two occasions. He admits that he had lodged report, which was according to what he had witnessed. The witness was confronted with what was stated by him in FIR Ex. P-2 that these appellants have not been named as assailants present in the incident of fight in the night, to which, the witness says that he does not know as to why it has not been written. He has also been confronted with his diary statement, Ex. D-1, Supplementary Diary Statement, Ex. D-2 regarding he not mentioning the name of Shivram, Shivdhan and Moharmati in the incident, which took place in the night, which he is unable to explain. In response to a question, whether his wife Punni Bai had sustained injury only in the incident of assault at 7 to 8 PM in the night, the witness answers that his wife was assaulted in the day hours, in which, she sustained injuries. Another question was put to him that at about 3.30 PM, sudden quarrel took place, to which, he responds that the appellants assaulted by calling bicycle thief. He then admits that otherwise, there was no enmity of his wife with Shivdhan, Shivram and Moharmati. 7. Sewanti Bai, PW-2, daughter of the deceased also stated that during day hours, her brother-Sardar was being assaulted by Shivram, Shivdhan, wife of Shivram-Moharmati. She has further deposed that an attempt was made to separate them, then, her mother-Punni Bai was also assaulted. She has deposed regarding the incident in the night, when she was serving meals to her father-Naiya Ram, at that time, Shivram, wife of Shivram came and gave threat of action and then left. This witness only talks of incident of fight in the afternoon followed by an incident of marpeet in the evening and giving threat. That means, this witness had not witnessed the alleged incident of fight and assault at around 8 PM in the night. This witness only talks of incident of fight in the afternoon followed by an incident of marpeet in the evening and giving threat. That means, this witness had not witnessed the alleged incident of fight and assault at around 8 PM in the night. This is clear from her cross-examination, where she admits that she could not recognize, who had come in the incident at night at 08.30 PM. She also admits that two incidents of fight had taken place, one at 03.30 PM and other at 08.30 PM. Importantly, this witness states of her own that in order to save themselves from fight, they did whatever they could do by giving assault. It has also come in the evidence that when Shivram was beaten up, he had gone to lodge a report. The evidence of this witness has been confronted with what has been stated by her in the case diary statement. 8. Sardar, PW-8, son of the deceased has deposed that Shivram and Moharmati had assaulted his brother Aasun and Father-Naiya Ram, alleging that they have stolen bicycle at about 4 PM in the evening and at that time, Shivram and Moharmati assaulted with hands and club. When Sardar went to rescue, he was also assaulted, due to which, he sustained injuries. He has further deposed that his father Naiya Ram had sustained injuries and he has deposed that at about 10 PM in the night, Moharmati, Shivram and many others had come to his house and assaulted his father Naiyaram, mother Punni Bai. He states that his father fell down and mother, who was inside the house, was dragged out and thrown in the courtyard. Thereafter, they went away. On the next day, mother was taken to the hospital, where she died. In his cross-examination, he admits that Shivram, Shivdhan and Moharmati had come and started abusing by making an allegation that they have committed theft of bicycle and when he denied, they started assaulting and when his family members came in to rescue, they were also assaulted, in which, mother Punni Bai sustained injury on abdomen, back, waist, chest and the head. He has further deposed that in the night, Baleshwar and others had come and started abusing by stating that they would not be left alive. He has further deposed that in the night, Baleshwar and others had come and started abusing by stating that they would not be left alive. In his cross-examination, he admits the fact that Shivram and Moharmati had come to their house at 10 PM in the night and is being stated for the first time in the Court. 9. Aasun, PW-9, son of the deceased, has also stated that in the afternoon at about 3-4 PM, Shivram made an allegation that his brother Sardar had stolen bicycle and started assaulting and when his mother and father went to rescue, the dispute came to an end. Thereafter, at 8 PM in the night, Shivram, Moharmati and many others had come and started assaulting Sardar and then, they again rescued and the dispute came to end. Thereafter, in the night at 10 PM, those people again came, in which, Shivram and his wife was also there and they pushed Punni Bai, due to which, she fell down on the door frame and sustained injury on her face and due to which, she fainted. On the next day, she was taken to the hospital, where she died. He deposed that in the assault by hands and fists, his brother Sardar was beaten up by Shivram. 10. Postmortem report of the deceased and the evidence of Dr. On the next day, she was taken to the hospital, where she died. He deposed that in the assault by hands and fists, his brother Sardar was beaten up by Shivram. 10. Postmortem report of the deceased and the evidence of Dr. A.K. Nagdeve, PW-13 proves internal and external injury along with opinion of the doctor, which are as under:-- 3- lkekU; ijh{k.k&,d efgyk dk 'ko lkekU; dndkBh dh Fkh] ftlds 'kjhj ds e`R;q i'pkr gkFk vkSj iSj dh vdM+u lekIr gks pqdk FkkA uhys jax ds dbZ pdrs ihB vkSj pwrM+ esa ekStwn Fkk vkSj nkfgus rjQ ds lhus esa Hkh uhys jax ds pdrs ekStwn FksA ?klhVus dk fu'kku nkfgus dksguh ij vkSj nkfgus dku ij ekStwn FksA mldh vkW[k v)Z [kqyh Fkh] nksuksa ukd ls xk<+k rjy inkFkZ fudy jgk FkkA mldk eqWg [kqyk Fkk vkSj nkWr fn[k jgh FkhA nksuksa gkFk dh eqVBh ca/kh gqbZ Fkh tks dM+kiu fy;s gq, Fkk vkSj mlds uk[kwu uhykiu FkkA [kksiM+h dk Åijh fgLlk uhps ?kalk gqvk FkkA 4- vkrafjd ijh{k.k & 1- [kksiM+h ds chp ds fgLls ds fefMy eSususft;y vkVjh ds QVus ls [kwu fudyk gqvk FkkA 2- ‘okl uyh vkSj daB uyh dh f>Yyh esa [kwu ds FkDds fudy jgs Fks tks >kx fy;s gq, FksA 3- nksuksa yaXl ds chp esa Iywjy Lisl esa [kwu tek gqvk Fkk tks >kx fy;s gq, FkkA 4- QqQql] daB] 'okluyh] nkfguk vkSj cka;k QsQM+k] isfj;ku ijijfl;e datLVsM FkkA g`n; dk nkfguk pascj Hkjk gqvk Fkk vkSj cka;k pascj [kkyh FkkA 5- isV ds Hkhrj v/kipk pko vkSj ikuh vkSj ekStwn FkkA NksVh vkar vkSj mldh Hkhrj dh oLrq,a] cM+h vkar vkSj mldh Hkhrj dh oLrq,a] ;d`r] Iyhgk] xqnkZ] eq=k'k;] Hkhrjh vkSj ckgjh tusUnzh;kW datLVsM FkhA vfHker & esjs erkuqlkj e`R;q dk dkj.k e`R;q ds lhus ds nk;s rjQ esa [kwu ds vR;f/kd Jko gksus ls gsesjsftd 'kkWd ds dkj.k gqbZ FkhA tks pksaVs lhuk] ihNs vkSj flj esa vkus ls gqbZ FkhA tks gR;kRed izd`fr dh FkhA e`R;q dk le; iksLVekVZe djus ls 18 ls 24 ?k.Vs iwoZ dh FkhA esjs }kjk 'ko izkfIRk ikorh iz-ih-19 gS] ftlds v ls v Hkkx ij esjs gLrk{kj gS rFkk esjs }kjk rS;kj fd;k x;k 'ko ijh{k.k izfrosnu iz-ih-20 gS] ftlds Hkkx v ls v ij esjs gLrk{kj gSA In the cross-examination, Dr. A.K. Nagdeve, PW-13 has stated that all the injuries could not be caused due to fall. 11. A.K. Nagdeve, PW-13 has stated that all the injuries could not be caused due to fall. 11. From the ocular testimony and medical evidence available on record as also the opinion given by the Dr. A.K. Nagdeve, PW-13, it is proved that cause of death was excessive internal bleeding in the right side of the chest leading to hemorrhagic shock. According to the doctor, this was as a result of injury sustained by her in the chest and head. Moreover, the external injuries are bluish signs showing impressions as also dragging bruises and abrasions. Moreover, the upper part of the head is said to be compressed. The case of the prosecution is that fight had taken place, in which, assault was made by hands, fists and legs and no weapon was used. No lacerated or incised wound were found Internal examination shows that Meningeal artery had ruptured. 12. From the overall assessment of the evidence of the prosecution and taking into consideration the contradictions and omissions with regard to presence of the present appellants in three different incidents, the evidence of the witness in so far as presence of appellants in the incident including day hours is concerned, is coherent and stated emphatically. However, the presence of this witnesses in the incident at different point of time was doubtful, because to that extent, it appears to be an improvement upon the story as disclosed in the merg intimation, FIR and case diary statement of the prosecution witnesses. However, at the same time, the witnesses have clearly stated that the incident of quarrel had taken place in the afternoon at about 3 PM shows that the appellants were making complaints against Sardar, son of the deceased, who had stolen bicycle and he was beaten up and at that stage, the evidence has come that Punni Bai and her husband Naiya Ram had come to rescue their son Sardar and they were also assaulted. It would thus be seen that arrival of the appellants and others in the house of Sardar, where Punni Bai was present and were cautioned that Sardar had stolen bicycle and for that, he was scolded and beaten up. It would thus be seen that arrival of the appellants and others in the house of Sardar, where Punni Bai was present and were cautioned that Sardar had stolen bicycle and for that, he was scolded and beaten up. When Punni Bai intervened, she was assaulted with the hands and fists and may be during this fight, followed by the incident of assault in the evening, Punni Bai had sustained severe blows on chest, head, abdomen and back side as also sustained internal injuries leading to rupture of artery. Thus, this could possibly happen due to heavy fists blow on her chest by the appellants and their associates. It has been admitted by the prosecution witnesses that there was no previous enmity between the appellants and the Punni Bai. The dispute had arisen instantaneously at the spot due to allegations made by the appellants on Sardar, son of the deceased that he had stolen their bicycle. It has also come in the evidence of one of the prosecution witnesses that Sardar had beaten Shivram. Other evidence is that when Punni Bai and her husband Naiya Ram sought to rescue their son Sardar, they sustained hands and fists blow which emerges from the evidence of prosecution witnesses. Therefore, the present case appears to be a case of sudden fight without any pre-meditation. The evidence only proves that the appellants had played role in the incident of fight in the afternoon, whereas presence of the appellants in the incident at evening hours is extremely doubtful. Overall scenario leads to the conclusion that there was a sudden fight without any pre-meditation and in the heat of passion, certain fists blow were given to Punni Bai and when she attempted to rescue her son Sardar, who was the main target of the appellants, in this process, Punni Bai had sustained heavy blow on her chest resulting in internal rupture of artery leading to hemorrhagic shock. The appellants cannot be said to be acted in a cruel manner. 13. In view of the aforesaid consideration, we are of the considered view that the present case is squarely covered under exception 4 of Section 300 of Cr.P.C. and it would be only a case of culpable homicidal not amounting to murder. Though, guilt of the appellants is proved, their conviction cannot be sustained under Section 302/149 of IPC, but only under Section 304-II/149 of IPC. Though, guilt of the appellants is proved, their conviction cannot be sustained under Section 302/149 of IPC, but only under Section 304-II/149 of IPC. Conviction of the appellants under Section 147, 323/149 of IPC is sustained. 14. In the result, the appeal is allowed in part. The appellants are convicted under Section 304-II/149, 147 & 323/149 of IPC. The appellants have already undergone more than 8 years of sentence. In the totality of the circumstances, particularly taking into consideration the genesis of dispute and the fact that the appellants were not armed with any weapon, their sentence is reduced to the period already undergone by them. As the appellants are in jail, they shall be released forthwith.