JUDGMENT : Shree Chandrashekhar, J. The sole appellant has faced the trial on the charge under section 302 IPC for committing murder of Soma Kachhap. In Sessions Trial No. 24 of 2008, he has been convicted and sentenced to RI for life under section 302 IPC. 2. The prosecution’s story as narrated by Saraswati Devi, the wife of the deceased, is disclosed in her fardbeyan which was recorded on 22.08.2007, on the basis of which Itki P.S. Case No. 46 of 2007 has been registered against the appellant under section 302 IPC. 3. During the trial, the prosecution has examined nine witnesses; the informant is PW-7 and the Investigating Officer has been examined as PW-9. 4. The prosecution has projected Sharan Kerketta-PW-1 and Pinku Tirkey-PW-4 as eye-witnesses. 5. In her fardbeyan, the informant has stated that at about 11:00 a.m. on 22.8.2007 she was informed that her brother-in-law, namely, Sukra Kachhap has assaulted her husband and by the time she reached the place of occurrence her husband was taken to RIMS, Ranchi for his treatment. Her husband died in the hospital on the same day. According to the informant, there was a dispute between both the brothers and on the day of occurrence her husband had asked Sukra Kachhap to return Rs.5000/- to claim a right over the land. In the Court also, she has deposed that Sukra Kachhap was ploughing the field and her husband had gone there and objected to ploughing of the field by him. In her examination-in-chief, she says that after a quarrel took place Sukra Kachhap brought a knife from his house and assaulted her husband. The prosecution witnesses, namely, Sharan Kerketta and Pinku Tirkey, however, have not stated that after a quarrel took place Sukra Kachhap brought a knife and assaulted Soma Kachhap, his brother. Sharan Kerketta in his cross-examination has stated that he has not seen Sukra Kacchap assaulting his brother, however, he says that immediately after the assault he has seen Sukra Kachhap present there. His evidence is corroborated by another witness, namely, Pinku Tirkey, who has deposed that he has seen the appellant assaulting Soma Kachhap. On such evidence, even though Sharan Kerketta has not seen the appellant assaulting his brother he is also an eye-witness. During their cross-examination, both the witnesses have remained unshaken. The learned Sessions Judge has found their evidence reliable and trustworthy. On such evidence, even though Sharan Kerketta has not seen the appellant assaulting his brother he is also an eye-witness. During their cross-examination, both the witnesses have remained unshaken. The learned Sessions Judge has found their evidence reliable and trustworthy. The Doctor who has conducted the post-mortem examination has found one stab injury on Soma Kacchap. Thus, medical evidence has also corroborated the eye-witness account of PW-1 and PW-4. In our opinion, the minor inconsistencies in the evidence of the prosecution witnesses would not shake foundation of the prosecution’s case. 6. From the evidences led by the prosecution during the trial, we find that the prosecution has established presence of the appellant at the place of occurrence and at the time of occurrence. The prosecution has also proved assault by the appellant on Soma Kacchap. 7. However, we are of the opinion that conviction of the appellant under section 302 IPC is not sustainable. 8. Section 300 of the Indian Penal Code makes culpable homicide murder if the case falls under any one of the four clauses, except in the cases falling under any one of the five Exceptions. The cases falling under the exceptions under section 300 IPC are made punishable under section 304 IPC. The evidence led by the prosecution against the appellant would disclose that the appellant is entitled for the benefit under Exception-4 to Section 300 IPC. 9. The essential ingredients to bring a cause of death under Exception 4 are; (i) the act was committed without premeditation, (ii) in a sudden fight, (iii) in the heat of passion and, (iv) upon a sudden quarrel. To bring home a case of murder under Exception 4 to section 300 IPC, it must be shown that the offender has not taken any undue advantage or acted in a cruel or unusual manner. 10. It is the prosecution’s own case that the appellant was ploughing the field which was objected to by Soma Kacchap. It is stated that Soma Kacchap had paid Rs.5000/- for redeeming the land which was mortgaged by their father and that is the reason he was asking Rs. 5000/- from the appellant for ploughing the field. An altercation has taken place at the place of the incident upon Soma Kachhap objecting to ploughing of the field by Sukra Kachhap. It is stated that Soma Kacchap had paid Rs.5000/- for redeeming the land which was mortgaged by their father and that is the reason he was asking Rs. 5000/- from the appellant for ploughing the field. An altercation has taken place at the place of the incident upon Soma Kachhap objecting to ploughing of the field by Sukra Kachhap. The medical evidence would establish that no repeated knife blow was inflicted by the appellant on Soma Kachhap. Since the appellant was ploughing the field before Soma Kachhap has arrived there, therefore it can be safely inferred that there was no premeditation on his part. 11. Thus, from the prosecution’s evidence it stands established that in a sudden fight in the heat of passion the appellant had struck a knife blow on Soma Kachhap. 12. Now the question is whether the appellant had intention to cause death or he had the knowledge that death would be caused, as envisaged under section 304 IPC. The knife blow given to Soma Kachhap has passed through his second intercostals space and pierces the left lung upper lobe. This injury has caused his death and, therefore, we are of the opinion that he had requisite intention as envisaged under section 304 Part-I IPC. Accordingly, he is sentenced to undergo RI for 10 years. 13. In the result, the judgment of conviction dated 29.01.2009 under section 302 IPC and the order of sentence dated 03.02.2009 passed by the learned Judicial Commissioner, Ranchi in Sessions Trial No. 24 of 2008 against the appellant, namely, Sukra Kachhap are set aside. The appellant is convicted and sentenced to RI for 10 years under section 304 Part-I IPC. 14. Ms. Nehala Sharmin, the learned APP states that the appellant has remained in custody for more than 12 years. Therefore, the appellant, namely, Sukra Kachhap shall be set free forthwith, if not required in connection to any other case. 15. Cr. Appeal (D.B.) No. 503 of 2009 is partly allowed. 16. Let lower court records be transmitted to the court concerned, forthwith. 17. Let a copy of the judgment be communicated to the trial court through FAX.