JUDGMENT Kailash Prasad Deo, J. -Heard learned Amicus Curiae Mr. Mahadeo Thakur and learned counsel for the State Mr. Pankaj Kumar, Additional Public Prosecutor. 2. The instant criminal appeal has been preferred against the judgment of conviction dated 18.11.2011 and order of sentence dated 19.11.2011 passed by learned Principal District and Sessions Judge, Pakur in Sessions Case No. 42 of 2008, whereby the sole accused Lumbey Murmu alias Lambu Murmu has been held guilty for the offence committed and punishable under Section 302 of the Indian Penal Code and awarded rigorous imprisonment for life with a fine of Rs. 2000/-, in default of payment of fine, the appellant shall further undergo rigorous imprisonment for 6 months. 3. The prosecution case is based upon Fardbeyan of Thakran Murmu (P.W.11) wife of Late Lukhiram Hansda (deceased) recorded by S. I., Kumar Saryu Anand, Officer-In-Charge, Littipara Police Station on 9.1.2008 at 7.30 Hrs., near the house of the informant. The informant has alleged that her husband Lukhiram Hansda aged about 50 years went to purchase tobacco from the shop of co-villager, Hari Sah (P.W.1) and at around 12.00 in the noon, he was brought by co-villager, Kunwar Hembrom alias Gurdha (P.W.3), son of Kansu Hembrom by holding his hand. At that time the husband of the informant was crumbling in pain, who disclosed that near the village pond, Lumbey Murmu alias Lambu Murmu (appellant) son of Bhagal Murmu alias Bhagan Murmu, resident of village- Baru, P.S. Littipara has assaulted him by means of stone at around 11.30 a.m. on his abdomen and chest and also pressed the neck. The husband of informant slept in the Varanda and since there was no person in the house, he could not be taken for treatment. After remaining in pain for sometime, at around 5 p.m., the husband of the informant, Lukhiram Hansda died. The informant has stated that the occurrence has been witnessed by the co-villager, Kunwar Hembrom alias Gurdha (P.W.3), Dular Tuddu (P.W.2) and Hari Sah (P.W.1) by their own eyes and they will disclose about the occurrence. After remaining in pain for sometime, at around 5 p.m., the husband of the informant, Lukhiram Hansda died. The informant has stated that the occurrence has been witnessed by the co-villager, Kunwar Hembrom alias Gurdha (P.W.3), Dular Tuddu (P.W.2) and Hari Sah (P.W.1) by their own eyes and they will disclose about the occurrence. Informant has further stated that her husband has no dispute with Lumbey Murmu prior to this and because of hot exchange of words near the pond as disclosed by her husband and other persons, the appellant Lumbey Murmu has assaulted husband of the informant by means of stone on his abdomen and chest and also pressed the neck, who subsequently died in the evening. 4. On the basis of Fardbeyan of the informant, the Police has registered Littipara P.S. Case No. 2 of 2008 dated 9.1.2008 under Section 302 I.P.C. against the sole accused, Lumbey Murmu alias Lambu Murmu. 5. On completion of investigation, police has submitted charge sheet vide No. 6 of 2008 dated 31st January, 2008 under Section 302 of the Indian Penal Code sentuping the sole accused person for trial. The cognizance of offence has been taken and the case has been committed to the court of session vide order dated 1/3/2008. The charge has been framed against the sole accused, Lumbey Murmu under Section 302 I.P.C on 31st March, 2008. The charge was read over and explained to the accused in Hindi, to which he has pleaded not guilty and claimed to be tried. 6. In order to prove the case, the prosecution has examined altogether 14 prosecution witnesses and also examined a number of documentary evidence upto Ext.-4. Hari Sah, owner of the betel shop, where the deceased went to purchase tobacco, being an eye witness has been examined as P.W.1. Dular Tudu another eye witness to the occurrence has been examined as P.W.2. Kunwar Hembrom @ Gurdha another eye witness to the occurrence has been examined as P.W.3. Kunwar Hembrom alias Gurdha has brought the victim to his house while he was under pain because of the assault made by the appellant. Arun Malton has been examined as P.W. 4. He has proved his signature on the inquest report, which has been marked as Ext. -1 and has also proved his signature on the seizure-list of stone seized by the police which has been marked as Ext.-2. Arun Malton has been examined as P.W. 4. He has proved his signature on the inquest report, which has been marked as Ext. -1 and has also proved his signature on the seizure-list of stone seized by the police which has been marked as Ext.-2. This witness is a hearsay witness. Hopna Hembram has been examined as P.W.5. He has proved his signature on the inquest report, which has been marked as Ext. -1/1. He is also a hearsay witness. Chotelal Mariya has been examined as P.W. 6, who is also a hearsay witness. Matal Marandi has been examined as P.W. 7, who is also a hearsay witness. Nayaki Hansda has been examined as P.W. 8 and has been tendered by the prosecution. Mandal Hansda has been examined as P.W. 9 and has also been tendered by the prosecution. Lakhindra Hansda has been examined as P.W. 10 and is a hearsay witness. Thakran Murmu, informant and wife of the deceased has been examined as P.W.11. She heard about the occurrence from P.W.3, Kunwar Hembrom alias Gurdha. Dr. Sanjay Kumar Jha is Medical Officer and has been examined as P.W. 12. He has conducted the postmortem examination on the dead body of the deceased, Lukhiram Hansda and the postmortem report has been proved and marked as Ext.-3. Sub-Inspector of Police, Saryu Anand is the Investigating Officer-cum- Officer-In-Charge of Littipara Police Station and has been examined as P.W. 13. Deepak Baranwal, learned Judicial Magistrate has been examined as P.W. 14. He is the Judicial Officer, who has recorded the statement of witness, Hari Sah under Section 164, Cr. P. C during trial, which has been proved and marked as Ext.-4. 7. After closure of prosecution evidence, the appellant was examined under Section 313 Cr.P.C. on 30th August 2011, where he has claimed that he is innocent and has not assaulted the deceased, but no defence witness or evidence has been adduced on behalf of the defence. 8. After hearing the learned counsel for the parties and on the basis of materials available on record, learned Trial Court has passed the impugned judgment of conviction and order of sentence against the sole accused under Section 302 of the Indian Penal Code. 9. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the present Cri. Appeal has been preferred before this Court. 10. Heard learned Amicus Curiae, Mr. 9. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the present Cri. Appeal has been preferred before this Court. 10. Heard learned Amicus Curiae, Mr. Mahadeo Thakur and learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor. Learned Amicus Curiae has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned Amicus Curiae has submitted that the conviction of appellant under Section 302, I.P.C cannot sustain in the eyes of law as there is no premeditation or intention on the part of the appellant, who has been alleged to have committed murder of the deceased, Lukhiram Hansda. Learned Amicus Curiae has submitted that occurrence took place in spur of the moment. As per the prosecution case, the appellant was asking for money from one of the tractor driver, who was carrying sand, which was opposed by the deceased, Lukhiram Hansda and the driver of the tractor went away, thereafter the appellant demanded the money for liquor from Lukhiram Hansda, which was opposed by Lukhiram Hansda, which resulted in altercation between the appellant and the victim, Lukhiram Hansda. In course of such altercation, it has been alleged by the prosecution that the appellant, Lumbey Murmu alias Lambu Murmu has assaulted, Lukhiram Hansda on his abdomen and chest by means of stone and also pressed the neck. Learned Amicus Curiae has submitted that though the Medical Officer (P.W.12), Dr. Sanjay Kumar Jha has not found any external or internal injury on the neck, but he has found a large number of injuries during internal dissection: (I) External on appearance- Rigor Mortis present into all four limb. Abrasion Mark (L-2\" W-1/2\") over Lt. side of lower part of chest. (II) Internal on dissection:- Dissection starting from thorax:- (i) Fracture Rib No. 4 to 10 on Lt. side (ii) Spleen-Ruptured into multiple pieces. (iii) Kidney Lt. ruptured into multiple pieces. Rt. Kidney pale (iv) Lung- Lt. side ruptured & Rt. Lung was pale (v) Heart- All four chamber empty (vi) Stomach- Liquid material present into it (vii) Small and large Intestine Full with liquid and gases (viii) Liver-pale (ix) Brain-pale 11. side (ii) Spleen-Ruptured into multiple pieces. (iii) Kidney Lt. ruptured into multiple pieces. Rt. Kidney pale (iv) Lung- Lt. side ruptured & Rt. Lung was pale (v) Heart- All four chamber empty (vi) Stomach- Liquid material present into it (vii) Small and large Intestine Full with liquid and gases (viii) Liver-pale (ix) Brain-pale 11. Learned Amicus Curiae has submitted that deceased has not died at the spot, rather as per the prosecution case the deceased was assaulted at 11-12 noon, then he was brought to the house and without giving any medical assistance to him, Lukhiram Hansda remained in pain and succumbed to the injuries at 5 p.m. Learned Amicus Curiae has thus submitted that conviction of the appellant under Section 302, I.P.C, is not sustainable in the eyes of law as the entire prosecution case comes within Exception 4 to Section 300, I.P.C and as such the conviction of appellant under Section 302, I.P.C be modified by altering the same to Section 304 Part II, I.P.C and the period of rigorous imprisonment for life with fine of Rs. 2000/- be modified as to the period already undergone by the appellant since he is in custody i.e. 9th January, 2008. The appellant remained in custody for more than 11 years as such this court may modify the conviction and sentence. Learned Amicus Curiae has further submitted that P.W.1,Hari Sah, P.W.2, Dular Marandi and P.W. 3,Kunwar Hembram alias Gurdha are the only eye-witnesses to the occurrence. Their evidence brought on record do not show that the appellant had any intention in killing the deceased nor the appellant had any knowledge of his suffering from any disease or that he has acted in a cruel or unusual manner, so as to kill the deceased. Learned Amicus Curiae has thus submitted that the impugned judgment of conviction may be set aside. 12. Learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor has vehemently argued the case and has submitted that because of assault made by the appellant upon the abdomen and chest, the deceased has suffered a large number of injuries. His ribs from No. 4 to 10 on the left side has got fractured. His spleen was ruptured into multiple pieces. His left kidney was also ruptured. His ribs from No. 4 to 10 on the left side has got fractured. His spleen was ruptured into multiple pieces. His left kidney was also ruptured. Under such circumstance, since the appellant has caused death of the deceased, the learned Trial Court has rightly convicted the appellant under Section 302, IPC. Learned State counsel has further submitted that the appellant was aged about 35 years at the time of occurrence and the victim, Lukhiram Hansda was having age of 50 years and as such because of the young age of appellant, he has taken law in his hand, causing death of Lukhiram Hansda because of the assault made by stone. The police has seized the stone and brought on record. Learned counsel for the state has thus submitted that this Court may not interfere with the impugned judgment of conviction and order of sentence as Hari Sah has disclosed the occurrence in his statement recorded under section 164, Cr.P.C, which has been proved and marked as Ext. 4 by the learned Judicial Magistrate, who has recorded the statement of Hari Sah under section 164, Cr. P. C and has been examined in this case as P.W. 14, Deepak Barnawal. Learned State Counsel has further submitted that the medical evidence as Ext. 3 has been proved by Dr. Sanjay Kumar Jha (P.W.12) which corroborates the prosecution case and is consistent with the prosecution case as such this Court may not interfere with the impugned judgment of conviction and order of sentence. 13. Heard learned Amicus Curiae, Mr. Mahadeo Thakur, learned counsel for the State Mr. Pankaj Kumar, Additional Public Prosecutor and perused the materials brought on record, including F.I.R., framing of charge, evidence of 14 prosecution witnesses, 4 prosecution exhibits and statement of the appellant recorded under Section 313, Cr.P.C., along with the impugned judgment of conviction and order of sentence. 14. While re-appreciating the evidence, this Court has minutely scrutinized the prosecution material brought on record. From the evidence brought on record, it appears that Hari Sah. P.W. 1, Dular Marandi, P.W. 2 and Kunwar Hembram alias Gurdha, P.W. 3 are the only three eye witnesses to the occurrence. Other witnesses, namely, Arun Malton, P.W. 4, Hopna Hembram, P.W. 5, Chotelal Mariya, P.W. 6, Matal Marandi, P.W.7 and Lakhindra Hansda P.W. 10 are hearsay witnesses. Nayaki Hansda, P.W. 8 and Mandal Hansda, P.W. 9 are tendered by the prosecution. Other witnesses, namely, Arun Malton, P.W. 4, Hopna Hembram, P.W. 5, Chotelal Mariya, P.W. 6, Matal Marandi, P.W.7 and Lakhindra Hansda P.W. 10 are hearsay witnesses. Nayaki Hansda, P.W. 8 and Mandal Hansda, P.W. 9 are tendered by the prosecution. Informant, Thakran Murmu, P.W. 11 is also not an eye- witness to the occurrence, rather she has lodged the First Information Report after death of the deceased at 5 p.m. being informed about the occurrence by the husband and P.W. 1, Hari Sah and P.W. 3, Kunwar Hembram alias Gurdhu. No information was given to the village Choukidar nor any information regarding assault was made to the police station, which is situated at a distance of 15 Kilometer north from the village. It is only after death of the deceased an F. I. R has been lodged and on the basis of that the law was put into motion. From the evidence of P.W. 1, Hari Sah. P.W. 2, Dular Marandi and P.W.3, Kunwar Hembram alias Gurdha, this Court is of the view that on a trivial issue of collecting some money by the appellant from driver of the tractor who was carrying sand, which was opposed by the deceased, Lukhiram Hansda and since the driver went away without paying any money to the appellant, the occurrence started. The appellant demanded money for liquor from the victim, Lukhiram Hansda, which was opposed by Lukhiram Hansda and as such sudden fight started between both the parties and in the heat of passion the appellant assaulted the victim Lukhiram Hansda by means of boulder/ stone on his abdomen and chest and prosecution has also alleged that appellant has pressed the neck. The Medical Officer, Dr. Sanjay Kumar Jha, who has been examined as P.W. 12 has proved the post-mortem report as Ext. 3. From the material brought on record and the evidence of the informant, it is apparent that appellant has no dispute with the deceased, Lukhiram Hansda prior to the occurrence. Because of collecting money which was opposed by the victim Lukhiram Hansda sudden quarrel took place and in the heat of passion the appellant has assaulted the victim by means of stone. The prosecution has not brought on record the size of the stone to suggest that such stone was used with an intention to kill the deceased. Because of collecting money which was opposed by the victim Lukhiram Hansda sudden quarrel took place and in the heat of passion the appellant has assaulted the victim by means of stone. The prosecution has not brought on record the size of the stone to suggest that such stone was used with an intention to kill the deceased. The victim Lukhiram Hansda was aged about 50 years and because of such quarrel 4-10 ribs of the deceased got fractured. His spleen also got ruptured into multiple pieces, as a result of sudden quarrel between the parties. The evidence does not show that appellant had any intention to kill the victim. Had it been so the appellant could have assaulted the victim with an intention to cause death by assaulting on his head or other vital part of the body. The prosecution has not brought any material on record to suggest that appellant has previous knowledge that victim is suffering from such a disease and appellant has taken undue advantage of the same or acted in such a cruel manner to cause death of the deceased. This court thus on consideration of the entire materials brought on record is of the opinion that Lukhiram Hansda has died but his death is not a murder, rather that comes under Exception 4 to Section 300. The judgment of Hon''ble Apex Court as reported in [ Manoj Kumar v. State of Himachal Pradesh, (2018) 7 SCC 327 and analogous cases on the principles of law in this regard as contained in paragraphs 26 to 28 and 30 (paras 22 to 24 and 26 of AIR) are quoted hereunder : "26. Exception 4 to Section 300, IPC reads as under: "Exception 4.- 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." 27. There is no dispute about the ingredients of Exception 4 to Section 300, IPC, the following conditions are to be satisfied namely: (i) that the incident happened without premeditation; (ii) in a sudden fight; (iii) in the heat of passion; (iv) upon a sudden quarrel; and (v) without the offender having taken undue advantage or acted in a cruel or unusual manner. 28. 28. It may be relevant to note that in Sridhar Bhuyan v. State of Orissa, (2004) AIR SC 4100 , it was held as under: (SCC pp. 396-97, paras 7-8) (at. pp. 4101-02, paras 7-8). "7. For bringing in operation of Exception 4 to Section 300, IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 8. The fourth exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of the prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men''s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender''s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300, IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"." 30. In Camilo Vaz v. State of Goa, (2000) AIR SC 1374 , referring to the ambit of Section 304 of the Code, this Court in similar set of circumstances held thus: (SCC p. 9, para 14) (at .p. 1379, para 14 of AIR) "14. This section is in two parts. If analysed, the section provides for two kinds of punishment to two different situations: (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. This section is in two parts. If analysed, the section provides for two kinds of punishment to two different situations: (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here the important ingredient is the "intention"; (2) if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on a vital part of the body with such force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation the case will fall in Part II of Section 304, IPC as in the present case." 15. This Court is of the opinion that conviction of the appellant under Section 302, I.P.C cannot sustain in the eyes of law and as such the same is set aside by modifying the same to Section 304, Part II, I.P.C. Accordingly, the order of sentence of rigorous imprisonment for life with fine of Rs. 2000/- is also modified to the period already undergone by the appellant. Accordingly, Cri. (D.B) Appeal is partly allowed. The appellant, who is in jail custody, is directed to be released forthwith, if not wanted in any other case. Let the Lower Court Records be sent to the concerned trial court along with a copy of this judgment. 16. Before parting, we record our appreciation for the valuable assistance accorded by learned Amicus Curiae, Mr. Mahadeo Thakur in this case. The Secretary, High Court Legal Services Committee would ensure that the legal remuneration of learned Amicus Curiae are duly paid within a period of 4 weeks from the date of receipt of an application along with a certified copy of this judgment.