JUDGMENT 1. By Court: Heard learned counsel Mrs. Alpana Verma, appointed by JHALSA to represent the appellant who has preferred this criminal appeal from jail and Mr. Azeemuddin, learned Additional Public Prosecutor representing the State. 2. Under appeal is the judgment of conviction dated 16.12.2014 and order of sentence dated 17.12.2014 rendered in Sessions Case No. 84 of 2012 by the Court of learned Additional Sessions Judge-I, Pakur where under the sole accused/appellant herein has been convicted for the charge under Section 302 of the I.P.C and sentenced to undergo R.I. for life with a fine of Rs.25,000/-, in default whereof, to further suffer R.I. for 2 years. The learned Sessions Court has directed the fine amount to be paid to the widow mother of the deceased, by way of compensation under Section 357 of the Cr.P.C. 3. The case of the prosecution was launched on the fardbeyan of the mother of the deceased Rosomuni namely Mangli Tudu, examined as P.W.8. Her fardbeyan was recorded on 06.01.2012 at Sadar Hospital, Pakur Female Ward by A.S.I Thakur Das Marandi, Pakur Police Station at 4.00 P.M. where under it was alleged that when the informant Mangli Tudu reached her home at Manglapara from village Talsha, she saw her daughter Rosomuni (deceased) lying, profusely bleeding due to serious injury on her head. Her daughter was immediately taken to Sadar Hospital and thereafter to Sadar Hospital Sonajori where she was given treatment in an unconscious state. She further alleges that she came to know that her son-in-law Dhan Marandi (appellant) son of late Mangal Marandi, resident of village Ranikola, P.S. Hiranpur District Pakur, who had been living at village Mangalpara, P.S. Pakur Town since few months in her house, has assaulted her daughter after an altercation on the demand of food from her and some delay in giving it. The accused picked up the Kudal (spade) and assaulted the victim Rosomuni, informants daughter on her head which resulted in injuries and she fell down. On these allegations, informant asserted that her son-in-law Dhan Marandi has, with an intention to kill, assaulted her daughter on the head with a Kudal (spade) and rendered her injured. 4. Pakur P.S. Case No. 10 of 2012 was registered on the basis of the fardbeyan of the informant on 06.01.2012 at 17.30 Hrs. On these allegations, informant asserted that her son-in-law Dhan Marandi has, with an intention to kill, assaulted her daughter on the head with a Kudal (spade) and rendered her injured. 4. Pakur P.S. Case No. 10 of 2012 was registered on the basis of the fardbeyan of the informant on 06.01.2012 at 17.30 Hrs. under Section 341,323,324,307, 504 of the Indian Penal Code against the sole accused /appellant, to which the offence under Section 302 of the I.P.C was added on 12.01.2012 after the victim died. Since the case was found to be true, charge-sheet was submitted against the sole accused Dhan Marandi on 31.01.2012 bearing no. 8 of 2012 under Section 341, 323, 324,307, 504 and 302 of the I.P.C. Cognizance of the offence was taken by the learned Magistrate and since the case was triable by the Court of Sessions, it was committed to the said Court. The charge was thereafter framed against the sole accused under Section 302 of the I.P.C vide order dated 14.09.2012, which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. Thus, the trial commenced. 5. In order to prove the case, prosecution has examined altogether 10 prosecution witnesses and also adduced certain documentary evidence up to Ext. 4 as under: P.W.1 Lakhiram Murmu P.W.2 Paltan Tudu P.W.3 Premlata Murmu P.W.4 Balram Tudu P.W.5 Pero Murmu P.W.6 Paika Murmu P.W.7 Sanatan Hansda P.W.8 Mangli Tudu P.W.9 Thakur Das Marandi P.W.10 Dr. Sanjay Kumar Jha Documentary evidence adduced by the prosecution are as under: 1. Ext.1- writing and signature of Thakur Das Marandi (P.W.9) on fardbeyan proved by P.W.9. 2. Ext.2 - writing and signature of the then Officer -In- Charge Arbind Prasad yadav on forwarding on fardbeyan, which has been proved by Thakur Das Marandi (P.W.9). 3. Ext.3 - signature of the then Officer-In-Charge Arbind Prasad Yadav on the formal F.I.R and writing of Bipat Das, Literate Constable on formal F.I.R proved by Thakur Das Marandi (P.W.9) 4. Ext.4 - writing and signature of Dr. Sanjay Kr. Jha (P.W.10) on the post mortem report proved by him. 6. After closure of the prosecution evidence, statement of the accused has been recorded under Section 313 Cr.P.C on 06.02.2014 and he was confronted with the materials brought by the prosecution on record. His answer was of simple denial. Ext.4 - writing and signature of Dr. Sanjay Kr. Jha (P.W.10) on the post mortem report proved by him. 6. After closure of the prosecution evidence, statement of the accused has been recorded under Section 313 Cr.P.C on 06.02.2014 and he was confronted with the materials brought by the prosecution on record. His answer was of simple denial. He pleaded innocence and stated that he has been falsely implicated in the case on account of land dispute. 7. Upon consideration of submission of learned counsel for the parties and material evidence brought on record, learned Trial Court has convicted the sole accused for the charge under Section 302 of the I.P.C and sentenced him to undergo R.I. for life with a fine of Rs. 25,000/-, in default whereof, to further undergo R.I. for 2 years. 8. Learned Counsel Mrs. Alpana Verma representing the appellant through JHALSA has taken us through the entire material evidence on record and made the following submissions: According to her, the case of the prosecution has largely been based on the evidence of P.W.2 Paltan Tudu, other son-in-law residing in the house of the informant Mangli Tudu (mother-in-law) as a ghar jamai and P.W.3 Premlata Murmu, wife of Paltan Tudu also treated as an eye witness. Both P.W.2 Paltan Tudu and P.W.3 Premlata Murmu have posed as if they were inside the house of the informant having three rooms, one of which was occupied by them and other by the mother-in-law and the third one by the deceased Rosomuni and the appellant Dhan Marandi. P.W.3 Premlata Murmu claimed to be sitting by the fire with her nine day old baby along with her husband P.W.2 Paltan Tudy by the side when the incident occurred on account of some delay in providing food by the victim Rosomuni to her husband Dhan Marandi. Accused Dhan Marandi picked up the Kudal (spade) lying nearby and suddenly assaulted his wife on her head which caused serious injury and rendered her unconscious from which she could not recover even after treatment for 3/4 days and finally died. Accused Dhan Marandi picked up the Kudal (spade) lying nearby and suddenly assaulted his wife on her head which caused serious injury and rendered her unconscious from which she could not recover even after treatment for 3/4 days and finally died. However, presence of Paltan Tudu (P.W.2) at the place of occurrence is rendered doubtful in view of the statement made at para 13 of his cross examination where he states that he reached the place of occurrence after 5 minutes and saw Rosomuni lying there and that before him number of villagers had also reached there. This has tainted the testimony of Paltan Tudu (P.W.2) as an eye witness and also cast doubt on the claim of Premlata Murmu (P.W.3), his wife as having seen the incidence. Premlata Murmu (P.W.3) in her statement at para 27 has stated that it took her less than one minute to reach the place of occurrence where Rosomuni had fallen down. Paika Murmu (P.W.6) has claimed himself to a chance eye witness whose house is at Mangalpara. However, informant Mangli Tudu (P.W.8) does not name him in the fardbeyan as a person who also had seen the occurrence. This witness has been conjured to support the prosecution case, though he was not an eye witness to the occurrence. Apart from the above, learned counsel for the appellant has also submitted that the prosecution evidence raises doubt about the presence of the appellant at the place of occurrence since the prosecution witnesses including Paltan Tudu (P.W.2) has stated that Dhan Marandi (appellant) is the resident of village Ranikola under Hiranpur P.S. and is not staying as ghar jamai with the informant. Pero Murmu (P.W.5) in para 8 of his cross examination has stated that he had seen Dhan Marandi one year before the occurrence. That means that he was not regular resident of the village Mangalpara or staying in the house of the informant. Informant Mangli Tudu (P.W.8) does not claim herself to be an eye witness, since she had gone to her maternal place where she was informed by Paltan Tudu (P.W.2), her son-in-law about the incidence that the appellant Dhan Marandi had assaulted her daughter Rosomoni with a spade on her head. Informant Mangli Tudu (P.W.8) does not claim herself to be an eye witness, since she had gone to her maternal place where she was informed by Paltan Tudu (P.W.2), her son-in-law about the incidence that the appellant Dhan Marandi had assaulted her daughter Rosomoni with a spade on her head. The statement of Paltan Tudu (P.W.2) that appellant is not a ghar jamai is not corroborated by Mangli Tudu (P.W.8) though at para 10 she has stated that she has kept Paltan Tudu (P.W.2) as a ghar jamai and that the house of Dhan Marandi was at Ranikola. From the statement of Mangli Tudu (P.W.8), it is also evident that the victim died after being brought back in a serious condition and in a state of unconscious from Kolkata where she was taken for better treatment from Malda. Death has occurred on 10.01.2012 i.e., 4 days after the occurrence. As such the victim could have been saved if she was given proper treatment. 9. Learned counsel for the appellant has also stated that the blood stained soil or weapon of assault i.e., spade were not seized by the Investigating Officer Thakur Das Marandi (P.W.9) nor sent for forensic examination to prove that the death of the victim Rosomuni was caused by assault by means of spade used by the appellant only and none else. She has submitted that the Investigating officer (P.W.9) has stated at para 11 of his cross examination the he had not collected any information in regard to any land dispute between both son-in-laws of the informant but at the same time at para 12 he states that appellant was resident of Ranikola, Hiranpur and that there was no house of Dhan Marandi in village Mangalpara. At para 15 of his cross examination he has also not stated that he has recorded the description of the place of occurrence as being bounded by shrubs of Palm tree or Bamboo tree. The medical expert Dr. Sanjay Kumar Jha (P.W.10) has found only one injury of clinical fracture of occipital and right parietal bone and no other external injury, though on dissection, he found massive extra and intra cranial haemorrhage of brain. The medical expert Dr. Sanjay Kumar Jha (P.W.10) has found only one injury of clinical fracture of occipital and right parietal bone and no other external injury, though on dissection, he found massive extra and intra cranial haemorrhage of brain. From the medical evidence and the delay of 4 days in the death of the victim taken together, it is evident that even if the prosecution case is assumed to be true, the appellant did not intend to cause such injury which in ordinary course of nature was sufficient to cause death. Learned counsel for the appellant has also referred to the statement of the informant in the fardbeyan which shows that there was altercation between the deceased and the appellant on the demand of food and P.W.1 Lakhiram Murmu has stated that he reached the place of occurrence on hearing brawl. Simiarly, P.W.7 Sanatan Hansda also says that he reached the place of occurrence on hearing brawl and thereafter saw the victim lying unconscious. Sanatan Hansda (P.W.7), though has posed as an eye witness but he is not reliable as he had reached the place of occurrence after the alleged assault. 10. Learned counsel for the appellant has submitted that there is no premeditation for the assault by the appellant. The case of appellant otherwise also would fall within Exception 4 to Section 300 of the I.P.C. There was sudden quarrel between the spouses on the demand of food by the appellant from her and in the heat of passion, without acting in cruel manner or taking undue advantage, a singular assault from the blunt side of the spade was inflicted by the accused and there was no repetition of blow either. Therefore, the conviction of the accused/ appellant under Section 302 of the I.P.C in any case is not made out. Moreover, since the credibility of the prosecution witnesses P.W.2 Paltan Tudu, P.W.3 Premlata Murmu and P.W.6 Paika Murmu having been shaken, the charge of murder against this appellant has not been proved beyond all reasonable doubts, which should entitle him for acquittal on granting him the benefit of doubt. Moreover, since the credibility of the prosecution witnesses P.W.2 Paltan Tudu, P.W.3 Premlata Murmu and P.W.6 Paika Murmu having been shaken, the charge of murder against this appellant has not been proved beyond all reasonable doubts, which should entitle him for acquittal on granting him the benefit of doubt. If the evidence on record is considered in totality, the possibility of the P.W.2 Paltan Tudu who was living as ghar jamai as husband of P.W.3 Premlata Murmu in the house of the informant Mangli Tudu (P.W.8) in causing death of Rosomuni and implicating the present appellant with the crime to gain benefit and share of their property in the informants house and lands cannot be ruled out. In such a state of doubt, the appellant deserves to be acquitted. Appellant has served custody for 7 years and little less than 4 months by now. 11. Learned Additional Public Prosecutor has extensively placed the evidence on record to sustain findings of conviction recorded by the learned Trial Court. He submits that the ocular evidence of P.W.2 Paltan Tudu, P.W.3 Premlata Murmu and P.W.6 Paika Murmu who were eyewitnesses, supported by the medical evidence (Ext.4-Postmortem Report) of P.W.10 Dr. Sanjay Kumar Jha, fulfill all the necessary ingredients of offence of murder under section 300 thirdly of the I.P.C. Presence of P.W.2 Paltan Tudu, P.W.3 Premlata Murmu and P.W.6 Paika Murmu at the place of occurrence have not been rendered doubtful by any stretch of cross-examination by the defence. The presence of P.W.2 Paltan Tudu and P.W.3 Premlata Murmu, both at the place of occurrence are natural since P.W.2 Paltan Tudu was living as Ghar Jamai, which fact stands corroborated by the P.W.8- Informant Mangali Tudu and mother-in-law of P.W.2 Paltan Tudu as well. The victim was also living since last 2 months in the house of P.W.8 Mangli Tudu, her mother. The appellant Dhan Marandi, her husband was also living in the same house, which fact has not been shown to be untrue by any cross-examination on the part of the defence. Other prosecution witnesses like P.W.1Lakhiram Murmu, P.W.5 Pero Murmu and P.W.7 Sanatan Hansda also claimed to have reached the place of occurrence immediately after the occurrence and seen the accused with a spade as well as the victim lying unconscious with injury on her head. The medical evidence adduced by P.W.10 Dr. Other prosecution witnesses like P.W.1Lakhiram Murmu, P.W.5 Pero Murmu and P.W.7 Sanatan Hansda also claimed to have reached the place of occurrence immediately after the occurrence and seen the accused with a spade as well as the victim lying unconscious with injury on her head. The medical evidence adduced by P.W.10 Dr. Sanjay Kumar Jha who has conducted the postmortem on the dead body of the deceased on 10.01.2012 i.e. the date of death at about 4 pm, found massive extra and intra cranial hemorrhage caused by the head injury. As per the doctor, this was the cause of death and such injury was caused by hard and blunt substance like back side of Kudal (spade). Injury found on external appearance by the doctor shows clinical fracture of occipital and right parietal bone, which corresponds to the internal injury and were the cause of death. Defence has not been able to draw any holes in the deposition of this medical witness apart from making a suggestion that this injury may be caused due to fall on earth. However, the ocular evidence cannot be shrugged aside which proved the assault on the head of the victim by the appellant. The other relevant facts in issue i.e. time of occurrence, place of occurrence and manner of occurrence all have been duly proved. Since there was no provocation from the side of the victim, nor the evidence on record go to show that there was any sudden fight after a sudden quarrel between the victim and the appellant/ husband, the case of the appellant could not be brought within Exception-4 to Section 300 of the I.P.C. 12. Learned counsel for the State submits that the defence has also failed to explain the circumstances leading to the death of appellants wife which were in the special knowledge of the accused. The onus under section 106 of the Evidence Act lied upon the appellant to do so, since the death occurred in the house where the victim, his wife, was residing with him. The ocular evidence, medical evidence as also failure on the part of the accused to explain the circumstances of death within the special knowledge of the accused, all taken together conclusively prove the case of the prosecution beyond shadow of all reasonable doubt leaving no scope for any interference in the findings of conviction recorded by the learned Trial Court. The ocular evidence, medical evidence as also failure on the part of the accused to explain the circumstances of death within the special knowledge of the accused, all taken together conclusively prove the case of the prosecution beyond shadow of all reasonable doubt leaving no scope for any interference in the findings of conviction recorded by the learned Trial Court. As such, the appeal is devoid of merit and fit to be dismissed. 13. We have considered the submission of learned counsel Mrs. Alpana Verma, representing the appellant through JHALSA and learned Additional Public Prosecutor Mr. Azeemuddin representing the State. We have gone through the entire materials on record including the fardbeyan; framing of the charge; evidence of 10 prosecution witnesses; 4 prosecution exhibits; statement of the accused recorded under Section 313 Cr.P.C and also perused the impugned judgment of conviction and order of sentence. 14. We have scanned the material evidence on record carefully and proceed to deal in all its respects hereinafter in our exercise to test, whether the prosecution case has been proved beyond all reasonable doubt, and whether the findings recorded by the learned Trial Court deserves to be sustained or not? As the material evidence has been recorded in some detail in preceding paragraphs, we find that the case of the prosecution based upon the First Information Report of the Informant (P.W.8), mother-in-law of the appellant/mother of the deceased projected time of occurrence in the morning of 6.1.2012. The informant had gone to her maternal house and came back upon hearing about the incidence from the mouth of P.W.2 Paltan Tudu, her another son-in-law who was living in her house as ghar jamai with his wife Prem Lata Murmu (P.W.3). P.W.2 Paltan Tudu and P.W.3 Premlata Murmu, daughter of the informant were living in the same house as ghar jamai, as claimed by P.W.2 Paltan Tudu and also corroborated by P.W.8 Mangli Tudu in her statement at paragraph-8 in her cross- examination. Presence of P.W.2 Paltan Tudu and P.W.3 Premlata Tudu as inmates of the house of the informant is not left to doubt. As per P.W.2 Paltan Tudu and P.W.3 Premlata Murmu, the occurrence took place at around 8.30 in the morning on 6.1.2012 when the Informant was at her maternal place. Presence of P.W.2 Paltan Tudu and P.W.3 Premlata Tudu as inmates of the house of the informant is not left to doubt. As per P.W.2 Paltan Tudu and P.W.3 Premlata Murmu, the occurrence took place at around 8.30 in the morning on 6.1.2012 when the Informant was at her maternal place. This time of occurrence also stands corroborated from the statement of P.W.7 Sanatan Hansda who reached the place of occurrence after hearing the brawl. P.W.2 Paltan Tudu and P.W.3 Premlata Murmu have thus projected themselves to be present at the place of occurrence. P.W.2 Paltan Tudu at para-13 of his cross- examination has stated that he reached the place of occurrence after 5 minutes and saw Roshomuni lying there. Even if we leave aside the testimony of P.W.2 Paltan Tudu as an eyewitness, due to this contradiction, the presence of P.W.3 Premlata Murmu is not rendered doubtful on reading of her entire evidence. P.W.3 Premlata Murmu, daughter of the Informant was having a 9 day old baby and as per her statement made at para-22 and 23 of her cross-examination, she was by the side of fire in the courtyard when the incidence took place. As per her testimony, victim was preparing food. Her husband, the appellant, asked for food and since there was some delay in offering food, the appellant took spade lying by the side and assaulted on her head twice, as a result of which, she fell down after sustaining injury on her head. 15. We find that the injury on the head of the injured stands corroborated by the medical evidence of P.W.10 Dr. Sanjay Kumar Jha who has conducted postmortem examination on the body of the deceased on 10.1.2012 at 4 pm i.e. date of death. Postmortem report proved by him in his pen and signature marked as Ext.4. contained the following injuries on external appearance and also found during internal dissection, which are quoted hereunder along with the opinion of the doctor: i. External on appearance: Rigor Mortis present in all four limbs. Clinical fracture of occipital and right parietal bone. No other external injury noted ii. Internal on dissection: i. Brain - Massive extra intra cranial hemorrhage ii. Heart - Left empty. Right full of blood. iii. Lungs - Congested. iv. Liver - Congested v. Stomach - Empty vi. Small & Large Intestine - Full with liquid and gases vii. Clinical fracture of occipital and right parietal bone. No other external injury noted ii. Internal on dissection: i. Brain - Massive extra intra cranial hemorrhage ii. Heart - Left empty. Right full of blood. iii. Lungs - Congested. iv. Liver - Congested v. Stomach - Empty vi. Small & Large Intestine - Full with liquid and gases vii. Bladder - Empty viii. Uterus - Empty Time elapsed since death at the time of P.M. Examination - 6 to 24 hours. Cause of death - Massive Extra Intra cranial hemorrhage & shock due to head injury and caused by H.B.S such as back side of Kudal. 16. Injury on the head of the victim shows clinical fracture of occipital and right parietal bone and on internal dissection, it was found that the brain suffered massive extra intra cranial hemorrhage which was caused due to this head injury. The doctor opined that such head injury was caused by hard and blunt substance such as back side of Kudal (spade). The time of occurrence, place of occurrence and manner of occurrence, as described by the ocular evidence, stands corroborated by the medical evidence in such fashion. P.W.6 Paika Murmu has also projected himself as an eyewitness and stated at para- 3 of his examination-in-chief that he saw the appellant assaulting his wife Rosomuni by a spade on her head by the side of bush. 17. The Investigating Officer Thakur Das Marandi (P.W.9) has proved the fardbeyan in his handwriting and signature as Ext.1; forwarding of fardbeyan in the handwriting and signature of the then Officer-in-Charge Arbind Prasad Yadav as Ext.2 and the formal FIR in the handwriting of literate constable Bipat Das with signature of the then Officer-in-Charge Arbind Prasad as Ext.3. In his deposition, he has categorically stated that he had recorded the statement of the witnesses such as Paltan Tudu (P.W.2), Lakhiram Murmu (P.W.1), Pero Murmu (P.W.5) and thereafter statement of Balram Tudu and Paika Murmu. The Informant Mangali Tudu during the investigation, has stated that she had taken the victim to Sadar Hospital, Malda and from there she was referred to Kolkata, but due to lack of money, she was brought back to her house where she died on 10.1.2012 at 3 am in the morning. 18. The Informant Mangali Tudu during the investigation, has stated that she had taken the victim to Sadar Hospital, Malda and from there she was referred to Kolkata, but due to lack of money, she was brought back to her house where she died on 10.1.2012 at 3 am in the morning. 18. There are certain lapses in the investigation since blood stained soil or the weapon of assault i.e. Kudal (Spade) have not been seized, nor sent for forensic examination, as rightly pointed out by the learned counsel for the appellant. However, defective investigation alone is not sufficient to discard the entire material evidence when the ocular testimony of the prosecution witnesses stands corroborated by the medical evidence as well. [See: AIR 2013 SC 1000 , Hema versus State through Inspector of Police, Madras ] 19. On behalf of the appellant learned Counsel Mrs. Alpana Verma has strenuously tried to bring the case of the appellant within the meaning of Exception 4 of Section 300 of the I.P.C or in the alternative under Section 325 of the I.P.C. She has also tried to show that the case of the prosecution suffers from inherent doubts which entitled the appellant to be acquitted on granting him the benefit of doubt. 20. We have tested the proposition on each count advanced by learned counsel for the appellant. The death of Rosomuni is homicidal, that is not a matter of doubt. Death occurred as a result of injury on her head. The injury on her head were as a result of the assault committed by the appellant as proved through the P.W.3 Premlata Murmu in particular and corroborated by Paltan Tudu (P.W.2) and Paika Murmu (P.W.6) as well. Presence of injury on the vital part of the body of the victim has been duly proved. The medical officer Dr. Sanjay Kumar Jha who has conducted the post mortem examination on the body of the deceased has also proved the nature of the injury as described herein above. They were clinical fracture of occipital and right parietal bone which had caused massive extra and intra cranial haemorrhage inside the brain as found on internal dissection. They were caused by use of hard and blunt substance such as back side of Kudal (spade). They were clinical fracture of occipital and right parietal bone which had caused massive extra and intra cranial haemorrhage inside the brain as found on internal dissection. They were caused by use of hard and blunt substance such as back side of Kudal (spade). On the one hand prosecution has been able to show that appellant intended to inflict such injury on the head, appellant has not been able to show that it was accidental or unintentional. Death ensued within 4 days of the assault. The submission of learned counsel for the appellant that better treatment could have saved the victims life and could relieve him of the charge of culpable homicide is not fit to be accepted in the light of the Explanation 2 to Section 299 of the I.P.C. From the above analysis of the prosecution evidence the three ingredients of Section 300 thirdly having been objectively established, the question before us is whether the fourth ingredients of Section 300 thirdly which is inferential, follows. As observed herein above, it is proved that the accused intentionally inflicted injury on the head of the deceased i.e., vital part of the body by means of spade and that injuries so inflicted by the appellant was sufficient to cause death in the ordinary course of nature. 21. Whether the case of the appellant comes within meaning of Exception 4 of Section 300 I.P.C is now requires to be seen. For this, appellant has relied upon the statement of the informant in the fardbeyan where she stated about verbal altercation between the victim and her husband (appellant) and certain statement of P.W.1 Lakhiram Murmu and P.W.7 Sanatan Hansda regarding brawl which brought them to the place of occurrence. For this, appellant has relied upon the statement of the informant in the fardbeyan where she stated about verbal altercation between the victim and her husband (appellant) and certain statement of P.W.1 Lakhiram Murmu and P.W.7 Sanatan Hansda regarding brawl which brought them to the place of occurrence. To examine this contention it is useful to extract Exception 4 to Section 300 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." For being able to come within the meaning of Exception 4 of section 300, following ingredients needs to be established: (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. 22. We are placing reliance upon a judgment rendered by the Apex 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, which are illustrative of the principles in that regard as under: 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 offenders 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. 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 mens 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 offenders 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, 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. 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." (emphasis supplied not part of original text) 23. From the evidence on record as it appears, it is true that the informant Mangli Tudu (P.W.8) in her fardbeyan stated about the verbal altercation between the victim and the appellant on account of some demand of food and delay in serving it by the victim to the accused/ appellant. Apart from these statements, evidence of the prosecution witnesses specifically Paltan Tudu (P.W.2), Premlata Murmu (P.W.3) and Paika Murmu (P.W.6) do not show that there was sudden quarrel which resulted in a sudden fight between the spouses. P.W.1 Lakhiram Murmu and P.W.6 Paika Murmu only say that they reached the place of occurrence on hearing brawl. The brawl, of course was after the assault. These two witnesses have not witnessed the assault, it may be said that on account of such delay in serving of food, there might have been verbal altercation between the spouses, but the spouses did not work themselves into fury which led to sudden fight as well between them. There is nothing on record to show that there was any aggression on the part of the victim after any verbal altercation between two. There is nothing on record to show that there was any aggression on the part of the victim after any verbal altercation between two. Such a provocation or verbal altercation in either cases could not enable a person to indulge into a serious assault causing homicidal death and take a plea of Exception 1 or 4 to Section 300 of the I.P.C. There may not be any premeditation either to commit the assault but other ingredients of Exception 4 do not appear to be made out from the evidence on record to entitle the appellant to take benefit thereof. (See Criminal Appeal No. 645 of 2019 judgment dated 10.04.2019 in the case of The State of Rajasthan Vrs. Kanhaiya Lal). If the arguments of learned counsel for the appellant is accepted, any such verbal altercation which does not lead to sudden fight or enrage the passion to the stage where the person loses his rationality and indulges in assault could be made an excuse to claim benefit under Exception 4 to Section 300 of the I.P.C. The law does not countenance of such a situation. The whole purpose of enacting Exception 1 and 4 to section 300 of the I.P.C is that the circumstances, if so constituted, render the person incapable of acting rationally on account of grave or sudden provocation, not voluntarily sought, or as a result of sudden fight out of sudden quarrel in the heat of passion without any premeditation giving little time to cool down and commit an assault. In such a case he may derive the benefit of these exceptions for a conviction of a lower degree such as under Section 304 Part II of the I.P.C. 24. Upon analysis of evidences in the forgoing paragraphs, we have found that ingredients of Section 300 thirdly as explained in the locus classicus by Honble Vivian Bose, J. in the case of Virsa Singh Vrs. The State of Punjab reported in AIR 1958 SC 465 duly stands established. If the ingredient of offence under Section 300 thirdly have been established, appellant cannot escape conviction thereunder by alternatively praying for its conversion to a lesser offence under Section 325 of the I.P.C. 25. The State of Punjab reported in AIR 1958 SC 465 duly stands established. If the ingredient of offence under Section 300 thirdly have been established, appellant cannot escape conviction thereunder by alternatively praying for its conversion to a lesser offence under Section 325 of the I.P.C. 25. On the totality of facts and circumstances discussed herein above and for the reasons recorded, we are of the considered view that the charge under section 302 of the I.P.C has been proved beyond all reasonable doubts against the appellant and the findings of the learned Trial Court are not vulnerable on any count to call for interference in exercise of appellate jurisdiction. As such the impugned judgment of conviction and order of sentence is hereby affirmed. The appeal being devoid of merit is dismissed. 26. Let the Lower Court Records along with the copy of judgment be sent down to the Court below forthwith. 27. Before parting, we however feel it proper to record our appreciation for the able assistance rendered by Mrs. Alpana Verma learned counsel for the appellant representing him through JHALSA during hearing of this case. The Member Secretary, JHALSA is required to bear her admissible legal remuneration on production of a certified copy of the judgment along with an application within a period of four weeks.