JUDGMENT Shree Chandrashekhar, J. - In this criminal appeal, the sole appellant has challenged the judgment of his conviction under c. 2. In Sessions Trial Case No.97 of 2009, the appellant has faced the trial on the charge of committing murder of his wife, namely, Kunki Soren @ Kunki Majhi. 3. The informant of this case, namely, Ram Soren is brother of the deceased. On the basis of his fardbeyan which was recorded at 11.30 hrs. on 09.12.2008, Patmada P.S. Case No.85 of 2008 has been lodged against the appellant under section 302 of the Indian Penal Code. In his fardbeyan, the informant has stated that he has received an information that yesterday, on Monday, his sister Kunki Soren has died. Upon such information, he came to the house of his sister Jagri Soren where he has found dead body of his sister Kunki Soren. On enquiry from the villagers, he came to know that yesterday Jagri Soren, her son-in-law, namely, Hakim Tudu and husband of Kunki Soren, the appellant, were threshing paddy in the courtyard of Jagri Soren. At that time, Kunki Soren was cooking food. In the meantime, husband of Kunki Soren asked her to serve food, however, she could not serve food immediately and this angered her husband. He picked up a small stick (lathi) and assaulted his wife due to which Kunki Soren died instantly. 4. During the trial, the prosecution has examined 9 witnesses; the informant is P.W.6 and his sister, namely, Jagri Soren is P.W.2. 5. Dr. J. Srinivas Rao-P.W.1, who has conducted the post-mortem examination at 10.30 am on 10.12.2008, has found: (a) abrasion, 3cmx2cm, over back of the right shoulder, (b) contusion, 10cmx6cm, over front of the abdomen and, (c) contusion, 4cmx3cm, over left side over abdomen. He has also found: (a) contusion on the left frontal scalp, 4cmx3cm, (b) contusion over left frontal and anterior parietal lobe of brain, (c) laceration of liver and spleen. About 1 liters blood was found in the abdominal cavity of Kunki Soren. 6. The learned Sessions Judge has recorded a finding that P.W.3, P.W.7 and P.W.8 are hearsay witnesses, but P.W.2, P.W.4, P.W.5 and P.W.6 are partly hearsay witnesses and partly eye-witnesses. 7. As per the prosecution story, Jagri Soren-P.W.2 is the star witness, but, in her examination-in-chief, she has stated that she has not seen the occurrence. 6. The learned Sessions Judge has recorded a finding that P.W.3, P.W.7 and P.W.8 are hearsay witnesses, but P.W.2, P.W.4, P.W.5 and P.W.6 are partly hearsay witnesses and partly eye-witnesses. 7. As per the prosecution story, Jagri Soren-P.W.2 is the star witness, but, in her examination-in-chief, she has stated that she has not seen the occurrence. She has stated that when she asked the husband of Kunki he told her that he has given two lathi blows to his wife due to which she has died. P.W.3 is the other brother of the deceased. P.W.4 has stated that Kunki Soren died in the house of Jagri. He is an inquest witness and he has stated that he does not know contents of the inquest report. P.W.5 has stated that dead body of Kunki Soren was lying at the door of Jagri Soren. P.W.7 and P.W.8 are also hearsay witnesses. 8. There is no universal rule that conviction of an accused cannot be recorded on the basis of extra-judicial confession; confession of an accused is admissible in evidence. In " Pakkirisamy Vs. State of Tamil Nadu, (1997) 8 SCC 158 ", the Supreme Court has held that it is a rule of caution that the courts would generally look for an independent reliable corroboration before placing any reliance upon extra-judicial confession. The appellant was present in the house of Jagri Soren and he is the one who had gone inside house immediately before cries of Kunki Soren was heard. It is also established that when P.W.2 rushed inside the house she found the appellant there and on query he has said that he has assaulted his wife. From the evidence of P.W.2, it appears that the appellant has confessed before her voluntarily and his presence inside the house immediately after cries of Kunki Soren was heard and she was found dead shows truthfulness of his confession. 9. The informant-P.W.6 has stated that his sister was carrying pregnancy of four months. The doctor-P.W.1 has, however, not rendered a definite opinion on pregnancy of Kunki Soren. The post-mortem report records: UT-enlarged growth present. In his evidence, the doctor has stated that 1 liters blood was found in the abdominal cavity. Such facts may lead to an inference that Kunki Soren was pregnant, but then, there may be other reasons also for enlarged UT and blood in the abdominal cavity. The post-mortem report records: UT-enlarged growth present. In his evidence, the doctor has stated that 1 liters blood was found in the abdominal cavity. Such facts may lead to an inference that Kunki Soren was pregnant, but then, there may be other reasons also for enlarged UT and blood in the abdominal cavity. Therefore, in absence of a definite opinion by the doctor we are not inclined to accept the prosecution''s story that Kunki Soren was carrying pregnancy of four months. Besides this, none of the prosecution witnesses has proved the motive for the crime. P.W.2 was present in her house and according to her the appellant has told her that he has assaulted her wife, but nobody has said anything about the reason for assault by the appellant on his wife. However, the prosecution has projected a story that when his wife did not serve food to him the appellant became angry and assaulted his wife. 10. On such evidence, we are of the opinion that the prosecution has failed to establish that the appellant intended to cause death of his wife or that he had the knowledge that assault by him on abdomen of his wife would be so imminently dangerous that in all probability it would cause her death or cause such injury which would cause death. 11. The above being the factual scenario, we hold that the prosecution has failed to establish charge under section 302 of the Indian Penal Code against the appellant and, therefore, his conviction for the said offence is set-aside. 12. From narration of the incident as projected by the prosecution witnesses, particularly P.W.2, it appears that it was a sudden quarrel during which the appellant picked up a small lathi lying there and assaulted his wife. 13. On such evidence, we are of the opinion that the appellant is liable to be convicted and sentenced under section 304 Part II of the Indian Penal Code. 14. In " Surinder Kumar Vs. Union Territory, Chandigarh, (1989) 2 SCC 217 ", the Supreme Court has indicated the situations under which an accused may be extended benefit of Exception-4 to section 300 IPC, thus; 7. 14. In " Surinder Kumar Vs. Union Territory, Chandigarh, (1989) 2 SCC 217 ", the Supreme Court has indicated the situations under which an accused may be extended benefit of Exception-4 to section 300 IPC, thus; 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 has not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it revelant 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 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. It has come in the evidence that on the fateful day, the appellant and other family members of Jagri Soren were threshing paddy in her courtyard. It was about noon when the appellant had gone inside the house and asked his wife to serve food. He was carrying any weapon or lathi with him is not the prosecution''s case. When his wife did not serve food to him, he became angry and hit her with a small lathi which was lying there. Explanation to Exception-4 to section 300 of the Indian Penal Code clarifies that it is immaterial which party has offered the provocation or committed the first assault. Presence of three external injuries on Kunki Soren would indicate repeated blow by the appellant, but then, the assault was made by a small lathi and, that too, not on the vital parts of the body and, therefore, it cannot be inferred that he has acted in a cruel manner. From the evidences laid by the prosecution during the trial, we find that in a sudden fight, without premeditation, in the heat of passion, the appellant has assaulted his wife which unfortunately resulted in her death. 16. From the evidences laid by the prosecution during the trial, we find that in a sudden fight, without premeditation, in the heat of passion, the appellant has assaulted his wife which unfortunately resulted in her death. 16. The above being the state of affairs, we are of the opinion that the appellant is liable to be convicted and sentenced to R.I for Seven years under section 304 Part II of the Indian Penal Code. 17. The appellant, who is in custody, shall be released forthwith, if not wanted in connection to any other criminal case. 18. In the result, Criminal Appeal (DB) No. 808 of 2009 is allowed. 19. Let the lower-court records be transmitted to the court concerned, forthwith.