JUDGMENT : S.K. Mishra, J. Appellant Ramnath Kisku calls in question his conviction U/s.302 of the Indian Penal Code, 1860 (herein after referred as “I.P.C.” for brevity) by the learned Sessions Judge, Keonjhar in S.T. Case No.175 of 2002 as per judgment dtd.24.4.2004 and sentence of imprisonment for life. 2. Originally the case was initiated against three accused persons, i.e. father of the appellant whose name is Bisun Kisku and his sister-in-law Basanti Kisku and charge sheet was submitted for offence U/s.302, 307 read with section 34 of the I.P.C. 3. The case of the prosecution in nutshell is as follows:- Deceased Sagar @ Sakar Kisku is the wife of injured – informant Lalmohan Kisku (P.W.1). Accused Bisun Kisku and appellant Ramnath Kisku are father and brother respectively of said Lalmohan Kisku. Accused Basanti Kisku is the sister-in-law of said Lalmohan Kisku, being the widow of his cousin Laxman Kisku. The occurrence took place at about 7 P.M. on 16.4.2002 in the dwelling house of the parties where Lalmohan Kisku along with his family lives in separate mess from accused Bisun and appellant Ramnath. The F.I.R. (Ext.6) was lodged by Lalmohan Kisku (P.W.1) at Sub-divisional Hospital, Anandapur at 9.30 A.M. on 17.4.2002. It is alleged in the F.I.R. that including the informant, Bisun Kisku has four sons. Three sons including the informant (P.W.1) resides outside the village. Appellant Ramnath who is elder to informant Lalmohan (P.W.1) alone lives in the village and enjoys the landed property. At about 4 P.M. on 16.4.2002 informant Lalmohan (P.W.1) asked his father and brother appellant Ramnath for partition of the ancestral landed property. They did not agree for partition and picked up quarrel with him. At first, accused Bisun Kisku assaulted informant Lalmohan Kisku (P.W.1) with a bamboo lathi on his head and left shoulder. Thereafter, appellant Ramnath Kisku rushed towards the informant, snatched away the bamboo lathi from the hand of his father and assaulted the informant with that lathi on his right shoulder and left knee. At that time, wife of informant Lalmohan (deceased Sakar Kisku) rushed to the spot with a view to separate them. Appellant Ramnath and his concubine caught hold of Sakar Kisku and appellant Ramnath assaulted deceased Sakar Kisku with the bamboo lathi on her head. Deceased fell down on the ground. In order to escape further assault, deceased ran away from the spot. Appellant Ramnath and his concubine caught hold of Sakar Kisku and appellant Ramnath assaulted deceased Sakar Kisku with the bamboo lathi on her head. Deceased fell down on the ground. In order to escape further assault, deceased ran away from the spot. At that time, accused Bisun gave her a push. Deceased fell down on the ground. Accused Bisun Kisku instructed the other accused persons to assault Sakar Kisku. The accused Bisun, appellant Ramnath and concubine of Ramnath combinedly assaulted deceased Sakar. Then the informant (P.W.1) took his wife Sakar and children to the house of his neighbor Gobinda Baskey. Gobinda Baskey was not present in the house. At about 8/9 P.M. Gobinda Baskey returned to his house. Lalmohan narrated the incident before him. Gobinda Baskey arranged a trekker and some co-villagers of Lalmohan brought Lalmohan and his wife to S.D. Hospital, Anandapur where his wife Sakar Kisku was declared brought dead. The medical officer attached to S.D. Hospital, Anandapur sent a medicolegal report to Ghasipura P.S. As the case was related to jurisdiction of Anandapur police station, the I.I.C., Ghasipura P.S. sent information telephonically to O.I.C., Anandapur police Station. O.I.C., Anandpur P.S. visited S.D. Hospital, Anandapur where informant Lalmohan Kisku was undergoing treatment. There, in the hospital, informant Lalmohan lodged oral report which was reduced in to writing by the I.O. On the basis of the F.I.R., the I.O. took up investigation and on completion of investigation, he filed charge-sheet against all the accused persons including the appellant implicating them in offence punishable U/s.302 and 307 I.P.C. read with Section 34 I.P.C. 4. Defence took the plea of complete denial and false implication. Accused Basanti Kisku has taken the plea that at the time of occurrence she was not present in the house but such plea has not been proved. 5. In proof of its case, prosecution has examined 6 witnesses out of whom P.Ws.1, 2 and 4 are the alleged eye witnesses to the occurrence. P.W.3 is a witness to seizure of bamboo lathi and blood stained earth and sample earth. P.W.5 is the medical officer who conducted post mortem examination on the dead body of deceased Sakar Kisku and also examined the injured – informant Lalmohan Kisku (P.W.1). P.W.6 is the investigating officer. 6. P.W.3 is a witness to seizure of bamboo lathi and blood stained earth and sample earth. P.W.5 is the medical officer who conducted post mortem examination on the dead body of deceased Sakar Kisku and also examined the injured – informant Lalmohan Kisku (P.W.1). P.W.6 is the investigating officer. 6. Basing on the testimony of P.W.1 – Lalmohan Kisku, P.W.2- Phaguram Tudu and P.W.4 – Bisan Kisku, the eye witnesses to the occurrence and the testimony of doctor (P.W.5) Dr. Parsuram Sahu, learned Sessions Judge has come to the conclusion that the offence U/s.302 I.P.C. is proved only against appellant Ramnath Kisku. He has acquitted the accused Basanti Kisku from both the offences U/ss.302 and 307 I.P.C. read with Section 34 I.P.C. but as far as accused Bisun Kisku is concerned, he has been held guilty individually for offence U/s.323 I.P.C. At present only the convict Ramnath Kisku is before us assailing his conviction. The learned Sessions Judge also come to the conclusion that nothing has been proved on preponderance of probability to show that there was a sudden quarrel so as to extend the benefit of exception IV of Section 300 I.P.C. 7. Learned counsel for the appellant, at the outset, does not dispute the fact that the death of deceased was homicidal in nature, nor he disputes the fact that the prosecution has established its case against the appellant Ramnath Kisku that he did the deceased to death by assaulting her by means of a bamboo lathi. What is argued very seriously by the learned counsel for the appellant is that the offence U/s.302 I.P.C. is not made out as the occurrence took place due to a petty quarrel inside the family relating to partition of family property. He also argues that only one injury, i.e. fracture of skull, both parietal bones and fracture of left temporal bone is grievous in nature and has led to the death of the deceased. It is also argued that as because there was no motive and the occurrence took place all of a sudden in a spur of moment and the appellant has acted without premeditation and commit the offence in the heat of passion, without taking undue advantage of anything, any situation or without acting in cruel manner, he should not be convicted U/s.302 I.P.C. 8. Learned Addl. Government Advocate Mr. Learned Addl. Government Advocate Mr. Mishra, on the other hand, supports the findings recorded by learned Sessions Judge and urges the court to dismiss the appeal upholding the conviction of the sole appellant U/s.302 I.P.C. 9. It is apparent that only 6 witnesses have been examined in this case. P.W.1, 2 and 4 have been examined as eye witnesses of the occurrence. P.W.1, the husband of the deceased has stated that accused Bisun Kisku is his father and appellant Ramanath Kisku is his elder brother and accused Basanti Kisku is his sister-in-law. Deceased Sagar @ Sakar Kisku is his wife. The occurrence took place in the evening on a Tuesday, one year prior to his deposition in the court. He has further stated that his father and brother appellant Ramanath live in one mess. He along with his wife, deceased Sagar live in separate mess in the same house. At about 4 P.M. of the occurrence day he asked his father accused Bisun Kisku to make partition of the landed property and also said that he will give him one quintal paddy every year for his maintenance. His father agreed with his proposal but his sister-in-law, accused Basanti intervened and his father changed his mind. At about 7/8 P.M. when he was relaxing, his father, all on a sudden assaulted him by means of a “Thenga” and he sustained bleeding injuries on his head and left shoulder. When he raised shout, his wife, deceased came to his rescue and tried to separate his father from him. At that time appellant Ramnath Kisku, who was present in the house, appeared at the scene, snatched away the “Thenga” from the hands of his father and assaulted his wife by the said “Thenga”. On being assaulted when his wife was running away from the spot, his father gave her a push and she fell down. At that time his brother, appellant Ramnath caught hold of his wife while she was lying on the ground and accused Basanti assaulted her with the same “Thenga”. However, in cross-examination at paragraph 5 this witness has stated that on being assaulted by his father on his head, he lost his consciousness and regained consciousness after about one hour. He has not seen the assault on his wife. However, in cross-examination at paragraph 5 this witness has stated that on being assaulted by his father on his head, he lost his consciousness and regained consciousness after about one hour. He has not seen the assault on his wife. So, the evidence of this witness, so far as assault on the deceased Sagar @ Sakar Kisku by the appellant cannot be accepted. 10. The second witness for the prosecution who has been examined as eye witness is P.W.2 – Phaguram Tudu. He has stated that he is the neighbor of the accused persons. On the date of occurrence at about 7/8 P.M. he was returning from the easing ground and heard commotion in the house of accused Bisun Kisku. Coming near the house, he saw accused Bisun Kisku was assaulting his son Lalmohan by a bamboo lathi. He has further stated that thereafter appellant Ramnath appeared in the scene and snatching the lathi from the hands of his father, assaulted Lalmohan. Wife of Lalmohan came to rescue of Lalmohan. Appellant Ramnath assaulted her by the same lathi. Both Lalmohan and his wife, deceased Sakar were lying at the spot on receiving the assault. Out of fear he left the spot. In the cross-examination this witness has stated that he has seen the assault on deceased Sagar Kisku. Appellant Ramnath assaulted her with the said lathi on her face and chest. He has not seen if accused Bisun Kisku assaulted deceased Sagar Kisku. 11. The 3rd witness of the prosecution examined as eye witness is P.W.4 who happens to be the son of P.W.1 Lalmohan Kisku. He has stated that accused Bisun Kisku got up from sleep and all on a sudden started assaulting his father Lalmohan on his shoulder by a “Thenga”. He has further stated that appellant Ramnath thereafter snatched away the “Thenga” from the hands of accused Bisun Kisku and by that “Thenga” assaulted his father on his head, back and shoulder. On being so assaulted, his father called his mother. At the time of occurrence his mother had gone to the house of their neighbor Bira. His mother came hearing the shout of his father and when his mother intervened, appellant Ramnath assaulted her mother with the same “Thenga”. His mother was also assaulted on her head, chest and other parts of her body. At the time of occurrence his mother had gone to the house of their neighbor Bira. His mother came hearing the shout of his father and when his mother intervened, appellant Ramnath assaulted her mother with the same “Thenga”. His mother was also assaulted on her head, chest and other parts of her body. Both his father and mother fell down on the ground and appellant Ramnath gave kick blows to his mother. After the occurrence his father took his mother to the house of Govinda Baskey and he accompanied them. 12. Reference to the evidence of P.W.5, the doctor who has conducted post mortem examination over the dead body of the deceased, reveals that the deceased has sustained the following external and internal injuries:- EXTERNAL INJURIES:- (i) One lacerated wound 2” X 1” X ½” over right leg in middle interiorly. (ii) Lacerated wound 2” X 1” X bone depth over left temporal region 1” above left external ear placed sagitally. (iii) Lacerated wound 3” X 1” X bone depth placed sagitally in the inter parietal line in mid-line; and (iv) Contusion 3” X 2” X 4” over right shoulder. INTERNAL INJURIES ON DISSECTION:- (i) There was fracture of skull, both parietal bones and fracture of left temporal bone which corresponds to external injury nos.(ii) and (iii). (ii) There was laceration of membrane adjacent to external injury nos.(ii) and (iii). (iii) There was laceration of brain (both parietal lobe and left temporal lobe). Further the doctor has opined that the external injury nos.(ii) and (iii) with their corresponding internal injuries are sufficient in ordinary course of nature to cause death. Both the aforesaid fatal injuries with their corresponding internal injuries show the severity with which the assault has been imparted on the deceased Sakar Kisku who has intervened to separate her father-in-law from her husband. 13. On the conspectus of the evidence of eye witnesses and also the evidence of doctor (P.W.5), we are of the opinion that the offence U/s.302 I.P.C. is not made out. Learned Trial Judge has relied upon the decision reported in AIR 1989 SC 1094 , Surinder Kumar Vs. 13. On the conspectus of the evidence of eye witnesses and also the evidence of doctor (P.W.5), we are of the opinion that the offence U/s.302 I.P.C. is not made out. Learned Trial Judge has relied upon the decision reported in AIR 1989 SC 1094 , Surinder Kumar Vs. Union Territory wherein Hon’ble Supreme Court has laid down that in order to invoke Exception – IV of Section 300 I.P.C. four requirements must be satisfied, namely; (i) There 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. 14. Learned Sessions Judge has held that the defence has not proved its case by preponderance of probability that there was sudden quarrel. In fact it is the case of the prosecution that there was dispute between the family members of one family relating to partition of ancestral property. It was a ongoing incident where the father-in-law of the deceased assaulted Lalmohan by means of a lathi. The same lathi was used by the present appellant to assault the deceased when she tried to intervene between the acquitted accused Bisun Kisku and P.W.1 Lalmohan Kisku. So it was a sudden fight. Moreover, there was no premeditation on the part of the appellant Ramnath Kisku and the act was done in a heat of passion. It is not the case of the prosecution that the appellant has taken any undue advantage or acted in a cruel manner, hence we are not in agreement with the findings recorded by the learned Sessions Judge and come to the conclusion that the ingredients required to attract Exception - IV of Section 33 I.P.C. have been satisfied in this case. So we are of the opinion that the conviction of the appellant U/s.302 I.P.C. is erroneous. 15. In the result, we allow the appeal in part. Set aside the conviction of the appellant U/s.302 I.P.C. and sentence of life imprisonment. Instead we convict him for the offence U/s.304 Part-I I.P.C. and sentence him to undergo rigorous imprisonment for 10 (ten) years. We are not inclined to impose any fine on the appellant. 15. In the result, we allow the appeal in part. Set aside the conviction of the appellant U/s.302 I.P.C. and sentence of life imprisonment. Instead we convict him for the offence U/s.304 Part-I I.P.C. and sentence him to undergo rigorous imprisonment for 10 (ten) years. We are not inclined to impose any fine on the appellant. The period undergone as under trial prisoner as well as a convict after conviction be set off against the substantive sentence by resorting to Section 428 of Cr.P.C. The JCRLA is allowed in part. Send back the L.C.R. forthwith. Dr. A.K. Mishra, J. – I agree.