JUDGMENT Agarwal, J. -- 1. This appeal has been filed by the sole appellant-Suresh s/o Motiya being aggrieved by judgment dated 30th June, 2008 passed by the Court of Additional Sessions Judge, Sironj, District Vidisha in Sessions Case No. 159/2006 convicting the appellant under the provisions of sections 307, 324 and 302 of IPC with three years' RI and fine of Rs. 500/- under section 324 of IPC with default stipulation of three months' further sentence. Similarly, he has been convicted under section 307 of IPC with seven years' RI and fine of Rs. 1,000/- with default stipulation of six months' RI He has also been convicted under section 302 of IPC with fine of Rs. 2,000/- and in default thereof, six months' additional imprisonment. All the sentences are directed to run concurrently. 2. Learned counsel for the appellant on being appointed from Legal Aid submits that it is a case where appellant has been falsely implicated. As per prosecution story, on 24.4.2006, Mohar Singh (PW1) had lodged a report at Police Station Deepnakheda that when he returned to his home from village, then his sister Chhutiya Bai (PW2) informed her that appellant-Suresh was snipping rope used for drying clothes and when Chhutiya Bai asked him not to do so, then he had hit her with a baka on her left ear causing bleeding. When her mother Champa Bai came to save her, then Suresh, who happens to be brother of Chhutiya Bai and son of Champa Bai, had hit Champa Bai with a baka from its sharp side on her left ear and over the pinna resulting in severing of such pinna, as a result of which Champa Bai died. Suresh had run away. 3. It is submitted that there are several lacuna in the prosecution case. It is pointed out that incident took place on 24.4.2006 between 10:00-11:00 am. FIR (Ex. P-1) was recorded at 14:15 hours on the same date but in the spot map (Ex. P-2) three dates have been shown, namely, in column showing time of reaching at the place of incident, date has been shown as 24.6.2006 at 15:00 hours. On left hand corner of spot map there is overwriting and date has been shown as 25.4.2006, whereas ASI, L R Sironiya (P W 9) has put date of 24.3.2006 below his signatures. It is also submitted that as per seizure memo (Ex. On left hand corner of spot map there is overwriting and date has been shown as 25.4.2006, whereas ASI, L R Sironiya (P W 9) has put date of 24.3.2006 below his signatures. It is also submitted that as per seizure memo (Ex. P-4) time of seizure has been referred to as 12 noon, whereas FIR itself was recorded at 14:15 hours. It is also pointed out that there is no seizure of said rope/steel wire, tampering of which was bone of contention. 4. It is further submitted that complainant Mohar Singh (P W 1) is a hearsay witness and there are contradictions in the version of Mohar Singh (P W 1) and eye witness Chhutiya Bai (P W 2). No independent witness has been examined though as per Mohar Singh (P W 1), his house is surrounded by house of Rajdhar, Nannu, Ghanshyam and Kamla and they all had reached his house at the time of such incident. Similarly, it is pointed out that Chhutiya Bai (P W 2) has admitted in her cross examination in para 14 that at the time of the incident Ghanshyam Mahara, Rajdhar, Bhagwan Singh, Nirpat and Mulla Bhoi were present and they had seen the incident but prosecution did not examine any of the independent witness. 5. It is submitted that spot map (Ex. P/2) was not prepared as per the version of eye witness Chhutiya Bai (P W 2) but as per version of complainant Mohar Singh (P W 1), who is not an eye witness. It is also submitted that there is no mention of the place where steel wire was tied and there is no recovery of such steel wire from the scene of crime, therefore, chain of events is not complete. It is also submitted that there is no mens rea to frame the appellant and in fact, as per Dr. Arun Jaroliya (D W 1), appellant when was lodged in sub-jail Lateri was examined by said doctor and was found that his mental condition was not proper, as a result of which he was referred to Bhopal. He admitted that if a person is in deep love with his wife and if such spouse dies, then surviving spouse may suffer mental retardedness. Mental condition of Suresh was not proper for quiet some time prior to the incident. It is submitted that this statement of Dr. He admitted that if a person is in deep love with his wife and if such spouse dies, then surviving spouse may suffer mental retardedness. Mental condition of Suresh was not proper for quiet some time prior to the incident. It is submitted that this statement of Dr. Arun Jaroliya (D W 1) is corroborated with statement of Mohar Singh (P W 1), who has admitted in para 7 that Suresh was taken to Hussain Tekri about three years back as he had lost his wife resulting in madness. Reading such admission of Mohar Singh (P W 1) it is submitted that an act committed in a state of lunacy, without appreciating the consequences whereof, will not be sufficient to convict a person under section 302 of IPC. 6. Reading medical evidence i.e. MLC of Chhutiya Bai (P W 2) contained in Ex. P-12 it is pointed out that Chhutiya Bai had informed Dr. N. K. Sharma (P W 10) of sustaining a baka injury below her left ear and one in her head. It is submitted that all the injuries sustained by Chhutiya Bai (P W 2) are simple in nature and therefore, they are not sufficient to record conviction of the appellant under section 307 of IPC. It is also submitted that looking to the mental state of the appellant, he should have been acquitted. 7. It is pointed out that Mohar Singh (P W 1) has deposed that his sister had fallen unconscious as a result of injuries caused by the appellant, whereas Chhutiya Bai (P W 2), an eye witness and victim, contradicted this statement of Mohar Singh (P W 1) and has submitted that she had never fallen unconscious and was always within her senses. Thus, it is submitted that there is exaggeration in the prosecution story, which goes to show that because of ill mental status of appellant, a design has been devised to book the appellant in a criminal case so to get rid of him and of taking his responsibility and care on day to day basis. 8. Learned Public Prosecutor on the other hand submits that minor omissions and aberrations in documentation are not sufficient to record acquittal in favour of the appellant, trial Court has diligently dealt with the evidence, which has come on record. 9. 8. Learned Public Prosecutor on the other hand submits that minor omissions and aberrations in documentation are not sufficient to record acquittal in favour of the appellant, trial Court has diligently dealt with the evidence, which has come on record. 9. It is apparent that appellant is in custody since 25.4.2006 and remained in custody during trial for a period of 795 days, as is apparent from a certificate issued under section 428 of CrPC Thereafter, he is in custody since date of judgment i.e. 30.6.2008. No application has been filed on his behalf seeking suspension of sentence. 10. After hearing argument of learned counsel for the parties and going through the record, few facts needs reiteration. Chhutiya Bai (P W 2), who is an eye witness, has admitted that wife of Suresh died three years back. She has also deposed that when accused hit her mother, then one of the pinna of ear had separated. 11. Mohar Singh (P W 1) has admitted that Suresh was taken to Hussain Tekri. This statement is corroborated by Dr. Arun Jaroliya (D W 1). Munna Lal (P W 3) is not an eye witness so also Parvat Singh (P W 4) is also a hearsay witness but both of them have denied suggestion to them that Suresh was suffering from some mental ailment. 12. Bhagwan Singh (P W 6) has also deposed that he was not present at the scene of crime. Witness of seizure Nirpat (P W 7) has not supported the prosecution case and has submitted that his signatures were obtained on blank paper. IO. Lalaram (P W 9) has admitted that spot map (Ex. P-2) was prepared at the instance of Mohar Singh but it does not contain signatures of Mohar Singh. He also admitted that at the time of preparation of spot map, Chhutiya Bai was present but has not given any reason for not preparing a spot map as per version of eye witness Chhutiya Bai. 13. As per Dr. N. K. Sharma (P W 10), post mortem was conducted on the body of deceased Champa Bai. He also admitted that at the time of preparation of spot map, Chhutiya Bai was present but has not given any reason for not preparing a spot map as per version of eye witness Chhutiya Bai. 13. As per Dr. N. K. Sharma (P W 10), post mortem was conducted on the body of deceased Champa Bai. There were three injuries on the body of deceased, namely: 1- ,d dVk ?kko ck,a dku ds Åij ÝUVksVsEiksjy jhtu ij Fkk ftldk vkdkj 3 lsŒehŒ xq.kk 0-5 lsŒehŒ tks gM~Mh dh xgjkbZ rd FkkA tek gqvk [kwu pksV ds ikl ekStwn FkkA 2- ,d dVk ?kko ck;h dku ds Åij pksV Øekad&1 ds uhps Fkk ftlls ck;k dku dV x;k FkkA 3- ,d dVk gqvk ck;h rjQ xky ds Åij ftldk vkdkj 1 lsŒehŒ xq.kk 0-5 lsŒehŒ ?kko ds pkjksa vkSj lsjt Fkk rFkk tek jDr ekStwn Fkk ikbZ FkhA Cause of death in the post mortem (Ex. P-15) has been mentioned as due to syncope due to intra cranial hemorrhage as a result of fracture, duration within 24 hours prior to autopsy. It is apparent that injury No. 1 was fatal and became cause of death, inasmuch as injury No. 2 is an incised wound on left pinna, which is not a vital part of the body, similarly injury No. 3 is an incised wound on left cheek measuring 1 cm x 0.5 cm which is not a cause of death, namely, syncope due to intra cranial hemorrhage as a result of fracture. When these facts are taken into consideration then Hon'ble Supreme Court in the case of Nandlal v. State of Maharashtra as reported in (2019) 5 SCC 224 has held that if case falls within Exception 4 to section 300 IPC, then conviction of appellant under section 302 by Courts below can be modified to section 304 Part-II and therefore, altered sentence of life imprisonment to imprison-ment for 12 years. 14. Exception 4 to Section 300 of IPC provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion, upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation below Exception 4 reads that it is immaterial in such cases which party offers the provocation or commits the first assault. 15. Explanation below Exception 4 reads that it is immaterial in such cases which party offers the provocation or commits the first assault. 15. It is evident from the record that there was no mens rea to kill Champa Bai. It is not a case of the prosecution that there was any old rivalry between the family members and there was any planned attack by the appellant on any of the victims. It is also apparent from the testimony of Chhutiya Bai (P W 2) that when she asked her brother as to why he is opening the string used to dry clothes, he came under the fit of rage and started abusing her and had hit her and when her mother/deceased Champa Bai came to intervene she was also hit with a baka. Coupled with the fact that there is some corroboration between the evidence of Dr. Arun Jaroliya (D W 1) and Mohar Singh (P W 1), brother of the injured, that appellant had lost his balance after death of his wife, which is prior to the date of the incident, therefore, this being a case of sudden fight, being caused without premeditation, resulting in death, case of the appellant will fall under this exception 4 to section 300 and under similar facts and circumstances, Hon'ble Supreme Court has altered conviction from section 302 of IPC to section 304 Part-I of IPC: for reference in the case of Arjun v. State of Maharashtra as reported in (2012) 5 SCC 530 . There is no history of any ill-will between the parties and ingredients of there being no premeditation, there being a sudden fight, thirdly in a sudden quarrel and lastly without offender's taking undue advantage for acting with cruelty or in unnatural manner, this is a fit case to alter conviction of the appellant from section 302 of IPC to section 304 Part-I. 16. We are informed that appellant is in custody since 25.4.2006. In our view, custodial sentence of more than 13 years of the appellant/accused would meet the ends of justice and it is ordered accordingly. 17. Accordingly, appeal is disposed of. Conviction of the appellant is altered from section 302 of IPC to section 304 Part-I of IPC. Appellant is in jail. He be released forthwith if not required in any other offence. 18. 17. Accordingly, appeal is disposed of. Conviction of the appellant is altered from section 302 of IPC to section 304 Part-I of IPC. Appellant is in jail. He be released forthwith if not required in any other offence. 18. There are subsequent happenings in respect of health status of the appellant as the appellant is having a history of mental ailment. We requested learned Public Prosecutor to inquire from jail authorities as to present health status of the appellant. We are apprised that the appellant is being extended psychiatric treatment from time to time, we deem it appropriate to ensure that after release of the appellant from jail, appellant is taken care of as per provisions contained in the Mental Health Care Act, 2017 (hereinafter shall be referred to as the “Act of 2017”). 19. As per the provisions contained in the Mental Health Care Act, 2017, Director General of Prisons being an ex-officio visitor to mental hospital as per the provisions contained in rule 899 of the Madhya Pradesh Jail Manual has been empowered with power and duties under rule 900 and can take care of the appellant in terms of the provisions contained in Chapter XII of the Act of 2017, which provides for admission of mentally ill persons under certain special circumstances. We direct with expectation and hope that authorities of State shall take appropriate steps for treatment and care of the appellant till he is fully cured of such ailment. Copy of the order be sent to the Jail Superintendent, Central Jail, Bhopal for the needful. We place on record appreciation for the amicus curiae and learned Public Prosecutor, Shri F. A. Shah, who extended able assistance. Record of the trial Court be sent back.