JUDGMENT : KAILASH PRASAD DEO, J. 1. Heard learned Amicus Curiae Mr. Rajesh Kumar and Learned counsel for the State Mr. Pankaj Kumar, Additional Public Prosecutor. 2. The instant criminal appeal has been preferred against the impugned judgment of conviction dated 15.12.2009 and order of sentence dated 17.12.2009 passed by learned 1st Additional Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 184 of 2008 whereby the appellant has been held guilty for the offence committed and punishable under Section 302 of the I.P.C and awarded rigorous imprisonment for life with a fine of Rs.2000/- and in default in payment of fine to further undergo simple imprisonment for 3 months. 3. The prosecution case is based upon the fardbeyan of Informant Rangiya Alda (P.W.3) recorded by S.I. Sudhir Prasad Sahu, Officer-In-Charge, Goilkera Police Station at Village Gotamba on 01.04.2008 at 12.10 Hrs wherein the informant has alleged as under: It is stated that on 31.03.2008 at around 11.00 A.M., his son Turi Alda aged 21 years (deceased) was cleaning tamarind (Imli) sitting under the roof of his house and asked his wife Mecho Alda (Appellant) aged 19 years to cooperate him in cleaning, the tamarind. It is further stated that when the appellant Mecho Alda refused to do so, out of anger, son of the informant Turi Alda asked her, if she is not cooperating him in cleaning the tamarind, she should go to the house of her mother and father (parents). Thereafter, some altercation took place between the wife and husband. At that time informant was sitting at a distance under a tamarind tree and could not understand the entire conversation. After some time, Mecho Alda, wife of son of the informant came out of her house and assaulted Turi Alda on head by means of handle of a hand pump made up of iron, resulting in scream of Turi Alda and he fell down on the ground crumbling in pain. The informant went to the place of occurrence and saw his son lying and blood oozing from the head and face. The informant has also seen Mecho Alda (appellant) having handle of the hand pump in her hand. The informant went to the place of occurrence and saw his son lying and blood oozing from the head and face. The informant has also seen Mecho Alda (appellant) having handle of the hand pump in her hand. Informant has further stated that he asked Mecho Alda why she has done so, upon which, she replied that she was asked to go to the house of her mother and father and as such she has assaulted her husband. In the meantime, son of the informant died and thereafter on hearing voice and cry of the informant, other co-villagers came and they caught hold of Mecho Alda so that she could not run away from the place of occurrence. 4. On the basis of the fardbeyan of the Informant Police has registered Goelkera P.S. Case No. 09 of 2008 dated 01.04.2008 against accused Mecho Alda under Section 302 of the I.P.C. 5. After completion of the investigation, Police has submitted charge-sheet vide no. 17 of 2008 dated 18.06.2008 under Section 302 of the I.P.C citing 7 charge-sheeted witnesses. Cognizance of the offence has been taken vide order dated 19.06.2008 and thereafter case has been committed to the Court of Sessions vide order dated 25.06.2008. The charge has been framed against the accused under Section 302 of the I.P.C vide order dated 04.08.2008, which was read over and explained to the accused in Hindi to which she pleaded not guilty and claimed to be tried. Thus, the accused was put under trial. 6. In order to prove the case, prosecution has examined altogether 7 prosecution witnesses and also adduced 7 documentary evidence up to Ext. 7 in support of the prosecution case. Ramchandra Kayam, a co-villager has been examined as P.W.1, Munda of the village being hearsay witness. He has stated that when he enquired from Mecho Alda, she has confessed that she has assaulted her husband Turi Alda, who was cleaning tamarind and also asked her to clean the same, which she refused. Thereafter Turi Alda asked her to go to the house of her mother and father, due to which she has assaulted him. This witness has proved his signature on the fardbeyan, which has been marked as Ext. 1. This witness has also proved his signature on the seizure list of Iron Sabal, which has been marked as Ext. 2. Thereafter Turi Alda asked her to go to the house of her mother and father, due to which she has assaulted him. This witness has proved his signature on the fardbeyan, which has been marked as Ext. 1. This witness has also proved his signature on the seizure list of Iron Sabal, which has been marked as Ext. 2. This witness has categorically stated during cross examination that Mecho Alda (appellant) disclosed about the occurrence before the arrival of the Police and she had also confessed her guilt in presence of the Police too. This witness has categorically stated that he has not seen the occurrence with his own eyes. Yadunath Alda has been examined as P.W.2. He is also a hearsay witness and has proved his signature on the inquest report which has been marked as Ext. 2/1. This witness has stated that when village Munda has asked who has killed, upon which, wife of Turi Alda disclosed that she has assaulted by means of hand pump. This witness has stated during cross examination that Mecho Alda has not disclosed anything in his presence. Rangiya Alda, informant of the case has been examined as P.W.3. This witness has stated that his son Turi Alda was cleaning tamarind in the courtyard and he could not know what his son has said to his wife. Thereafter, his daughter-in-law has killed his son by means of hand pump. He has further stated during cross examination that on that day there was no other person there initially. His son had climbed over the tamarind tree and was plucking tamarind and cleaning seeds. He was not there when his son was cleaning seeds. He returned at 12.00 noon. He himself did not go to the police station to inform about the occurrence. Dasrath Alda is another hearsay witness who has been examined as P.W.4. This witness has stated that he has been informed about the occurrence by father of the deceased i.e., informant Rangiya Alda (P.W.3) that Mecho Alda has killed his son and thereafter this witness along with village Munda saw the dead body having injury on the head. This witness has proved his signature on the inquest report which has been marked as Ext. 2/2. Sadhucharan Kayam has been examined as P.W.5, who is also a hearsay witness. This witness has proved his signature on the inquest report which has been marked as Ext. 2/2. Sadhucharan Kayam has been examined as P.W.5, who is also a hearsay witness. This witness has stated that village Munda Ramchandra Kayam (P.W.1) has asked from Mecho Kui (appellant) who disclosed that she has assaulted her husband through the handle of the hand pump causing his death. This witness has proved his signature on the seizure list of handle of the hand pump which has been marked as Ext. 2/3. This witness has stated during cross examination that Munda had tied Mecho Kui, otherwise she would have fled away. Police came on the next day. Sudhir Prasad Sahu, Officer-In-Charge of Goelkera Police Station has been examined as P.W.6. On rumour about a murder of husband by his wife, he went to village Gotamba after recording station diary entry and recorded the fardbeyan of the informant Rangiya Alda (P.W.3) in his handwriting. He has also identified and proved the signature of interpreter of the fardbeyan Ramchandra Kayam (P.W.1) which has been marked as Ext.3. The inquest report has been prepared in his handwriting, wherein witness Dashrath Alda and Yadunath Alda have put their signatures, which has been proved by him marked as Ext. 4. During investigation this witness has recorded the re-statement of the informant and statement of other witnesses. This witness has described the place of occurrence as a house made of thatch having 3 rooms having its entrance at the eastern side wherein land of Rangiya Alda is situated. On the western side house of Saducharan Kayam is situated and on the northern side there is small tree of bamboo and teak and in the southern side house of Turi Alda is situated. This witness has also proved the seizure list regarding handle of hand pump found near the dead body, which has been prepared by A.S.I. Premchand Hansda on his instruction bearing signatures of Ramchandra Kayam (P.W.1) and Sadhucharan Kayam (P.W.5) marked as Ext. 5. The accused who was caught hold by the villagers was arrested by him and on the basis of the fardbeyan of the informant, he has registered Goelkera P.S. Case No. 09 of 2008 dated 01.04.2008 written in his handwriting and bears his signature which has been proved and marked as Ext. 3/1; formal F.I.R has been proved and marked as Ext. 6. 3/1; formal F.I.R has been proved and marked as Ext. 6. The dead body was sent for post mortem and after investigation, on the direction of the superior officers and on receipt of the post mortem report, he has submitted charge-sheet against the accused under Section 302 I.P.C. During his cross examination, he has stated that weapon which has been used to kill the deceased is handle of the hand pump, which is pointed at one side and can be used as ‘Saabal’. This witness has stated that since blood stain was not found on ‘Saabal, it has not been sent for forensic examination at the Forensic Science Laboratory and the seized iron rod is kept in the Police Station and not produced in the Court. This witness has stated that he has recorded the defence statement of the accused. Dr. Swapan Kumar Singh, Medical Officer has been examined as P.W.7, who has conducted the autopsy on the dead body of the deceased Turi Alda on identification by Constable No.1 Ram Niwas Singh on 01.04.2008. The post mortem report was prepared in his handwriting and bears his signature which has been proved and marked as Ext.7. On external examination, the doctor has found following ante mortem injuries: Crush injury of occipital area with fracture of occipital bone and lacerated wound of ½ “ x ¼ “. Time since death – within 12 to 36 hours due to presence of rigor mortis in all limbs. Doctor has opined that cause of death is due to haemorrhage and shock due to head injury caused by hard and blunt substance which may be handle of tube-well. 7. After closure of the prosecution evidence, statement of the accused has been recorded under Section 313 Cr.P.C on 26.08.2009 where she has denied about her involvement in the case and claimed herself to be innocent. 8. After hearing learned counsel for the parties and on the basis of the materials available on record, learned Trial Court has passed the impugned judgment of conviction and order of sentence, holding the appellant guilty under section 302 of the Indian Penal Code and awarded R.I for life with a fine of Rs.2000/-, in default whereof, to further undergo S.I. for 3 months 9. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the accused/appellant has preferred the instant Criminal Appeal before this Court assailing the impugned judgment of conviction and order of sentence. 10. Heard learned Amicus Curiae Mr. Rajesh Kumar 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 as well as on facts and cannot sustain in the eyes of law. Learned Amicus Curiae has submitted that informant is the father of the deceased who has been examined as P.W.3. He has categorically stated in his cross examination at para 6 that at that time nobody was present near the place of occurrence and initially his son has climbed over the tamarind tree and was cleaning tamarind. At that time he was not present. This witness has further stated in the same para that at 12.00 noon he came to the house and has not informed about the occurrence to the Police. As such, learned Amicus Curiae has submitted that there is no evidence on record to show the culpability of the crime against the appellant. Therefore, appellant cannot be convicted under Section 302 of the I.P.C. Learned Amicus Curiae has further submitted that none of the witness examined by the prosecution are eye witness to the occurrence. Learned Amicus Curiae has drawn attention of this Court towards the cross examination of P.W.7 Dr. Swapan Kumar Singh, who has admitted during cross examination that no weapon was produced before him and injury sustained in the present case may be caused due to fall from tree or over rocky surface. Learned Amicus Curiae has placed evidence of Rangiya Alda (P.W.3) at para 6 and Dr. Swapan Kumar Singh (P.W.7) at last para and submitted that informant has categorically stated that his son had climbed over the tamarind tree for plucking tamarind and doctor has stated that such injury can be caused due to fall from tree or over rocky surface. As such the impugned judgment of conviction and order of sentence is fit to be set aside. As such the impugned judgment of conviction and order of sentence is fit to be set aside. Learned Amicus Curiae has buttressed his argument on the support of weapon of assault i.e., handle of tube-well, which has not been sent for forensic examination, so as to establish that same has been used by the appellant for assaulting her husband causing his death. Blood of the deceased has not been compared and matched with the blood found on the handle of the tube-well. As such the conviction of the appellant under section 302 I.P.C cannot be sustained in the eyes of law. Learned Amicus Curiae has further submitted that even the Investigating Officer Sudhir Prasad Sahu (P.W.6) at para 17 of the cross examination has admitted that he has not found any blood stain on the iron saabal nor he has sent the same for forensic examination. Learned Amicus Curiae has submitted that in view of such evidence where there is no eye witness to the occurrence and other material evidences are not corroborating the prosecution case, the conviction of the appellant under Section 302 I.P.C cannot not sustain in the eyes of law, as Ramchandra Kayam (P.W.1), Yadunath Alda (P.W.2), Dasrath Alda (P.W.4) and Sadhucharan Kayam (P.W.5) are hearsay witness. As such appellant may be acquitted from the charge under Section 302 I.P.C 11. Learned counsel for the State Mr. Pankaj Kumar, Additional Public Prosecutor, has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned Trial Court on the basis of materials available on record. Learned counsel for the State has submitted that since both the husband and wife were present in the house, as such, under Section 106 of the Evidence Act, it was the responsibility of the wife Mecho Alda(appellant) to explain and disclose as to how her husband has died. Section 106 of the evidence Act is quoted hereunder: “106. Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”. Section 106 of the evidence Act is quoted hereunder: “106. Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”. Learned counsel for the State has submitted that extra judicial confession of the appellant before Ramchandra Kayam (P.W.1), Rangiya Alda (P.W.3), Yadunth Alda (P.W.2) and Sadhucharan Kayam (P.W.5) are sufficient to hold the conviction of the appellant under Section 302 of the I.P.C. Learned counsel for the State has further submitted that informant, although is not an eye witness, but nothing has been suggested by the defence in his cross examination or the statement of the accused under Section 313 Cr.P.C to make out a case that deceased Turi Alda died because of fall from tamarind tree. As such the learned Trial Court has rightly convicted the appellant under Section 302 of the I.P.C, which does not require interference by this Court. 12. Heard, learned Amicus Curiae Mr. Rajesh Kumar and learned counsel for the State Mr. Pankaj Kumar, Additional Public Prosecutor and perused the materials on record i.e., F.I.R, framing of charge, evidence of the 7 prosecution witnesses, 7 prosecution exhibits, statement of the accused recorded under Section 313 Cr.P.C as well as impugned judgment of conviction and order of sentence. 13. From careful scrutiny of the prosecution evidence, it appears that admittedly the appellant Mecho Alda is the wife of the deceased Turi Alda and were living together. The informant Rangiya Alda (P.W.3) is the father of the deceased. It appears that the deceased was living with his wife and nobody was present except the wife (appellant) and the husband (deceased) while the husband was cleaning tamarind. It also appears from the prosecution witness including the fardbeyan of the informant Rangiya Alda (P.W.3) and extra judicial confession of the appellant before Munda of the village Ramchandra kayam (P.W.1), Yadunath Alda (P.W.2) and Sadhucharan Kayam (P.W.5) that on the spur of the moment appellant had assaulted her husband by means of handle of tube-well/hand pump as husband Turi Alda asked his wife Mecho Alda to co-operate in cleaning tamarind which was refused by her, upon which, Turi Alda asked his wife to go to house of her mother and father. This caused annoyance to the appellant who in spur of moment and heat of passion assaulted her husband without intention to cause death. This caused annoyance to the appellant who in spur of moment and heat of passion assaulted her husband without intention to cause death. A single blow has caused death of the deceased which has been proved by Ext.7 i.e., post mortem report of the deceased. The doctor has also found one external injury on the head. It appears that Ramchandra Kayam (P.W.1), Yadunath Alda (P.W.2), Sadhucharan Kayam (P.W.5) apart from the Investigating Officer Sudhir Prasad Sahu (P.W.6) have supported the case of the prosecution. The handle of hand pump was seized which was lying adjacent to the dead body of the deceased Turi Alda. The entire prosecution material suggest that there was no intention on the part of the appellant for committing such murder rather on the spur of the moment, appellant has assaulted the deceased as the deceased asked his wife to cooperate him in cleaning the tamarind and on her refusal, he asked her to leave/flee away from his house to the house of her mother and father, which caused certain irritation and thereafter it appears from the prosecution evidence that there was some hot exchange of conversation between wife and the husband. The case in hand therefore comes under the provision of Exception 4 to Section 300 I.P.C which 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 having taken undue advantage or acted in a cruel or unusual manner. 14. Reliance is placed on a judgment rendered by the Hon’ble Supreme Court in the case of Manoj Kumar Vrs. State of Himachal Pradesh and other analogous cases reported in (2018) 7 SCC 327 , para 26 to 28 and 30 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. 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. It may be relevant to note that in Sridhar Bhuyan v. State of Orissa, it was held as under: (SCC pp. 396-97, 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. 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. 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. 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, referring to the ambit of Section 304 of the Code, this Court in similar set of circumstances held thus: (SCC p. 9, para 14) “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. 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. Under the aforesaid circumstances, in view of the fact and the materials brought on record, this Court is of the opinion that conviction of the appellant passed by the learned Trial Court under Section 302 of the I.P.C cannot sustain in the eyes of law. However, the evidence on record do suggest that the appellant has not discharged her duty as contemplated under Section 106 of the Evidence Act. As such, her conviction is modified to Section 304 Part-II of the I.P.C as culpable homicide not amounting to murder. 16. Under the aforesaid circumstances, the conviction of the appellant under Section 302 I.P.C is set aside and modified to Section 304 Part-II of the I.P.C. Consequently, the sentence of the appellant is also modified to the period already undergone by her. The appellant is in custody since 01.04.2008, therefore, she is directed to be released forthwith, if not wanted in any other case. 17. In the result, appeal is partly allowed in the aforesaid terms. 18. The appellant is in custody since 01.04.2008, therefore, she is directed to be released forthwith, if not wanted in any other case. 17. In the result, appeal is partly allowed in the aforesaid terms. 18. Let the Lower Court Records along with the copy of judgment be sent down to the Court below forthwith. 19. Before parting, we record our appreciation for the valuable assistance rendered by the learned Amicus Curiae during hearing of this case. His admissible legal remuneration be borne by the Secretary, High Court Legal Services Committee on production of a certified copy of the judgment along with an application within a period of four weeks from its receipt.