JUDGMENT : A.J. Desai, J. 1. By way of the present appeal under section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for short), the appellant–original accused has challenged the judgement and order dated 05.03.2013 passed by learned 4th Additional Sessions Judge, Surat in Sessions Case No.154 of 2011, by which, the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo life imprisonment. 2. The appeal came to be admitted on 08.10.2013. Record and proceedings have been tagged along with paper book and placed before us. 3. Short facts emerge from the record of the appeal are as under: 3.1 One Karamsinh Muljibhai Vasava, resident of village Makh Shera Faliya, Taluka Dediyapada, District Narmada lodged an FIR bearing C.R.No.I-59 of 2011 with Mandvi Police Station, District Narmada against present appellant for the offence punishable under Section 302 of the Indian Penal Code on 27.05.2011 at around 4.00 hrs. alleging that on the same day i.e. on 27.05.2011 at around 00.30 hrs, he alongwith his brother Mukeshbhai and other family members had joined the marriage ceremony of his relative at village Jamkui. The procession of marriage party was going on and pursuant to the rhythmic sound of music band all the persons who had joined the marriage procession had started dancing. He alongwith his brother also joined the marriage procession and started dancing. When they were dancing alongwith other persons, at that time, leg of Mukeshbhai touched the present appellant-Arvindbhai and some altercation took place and thereafter scuffle took place, wherein the present appellant took out knife and gave blow on the left side of abdomen of Mukeshbhai. Pursuant to which, he fell down on the ground. Thereafter, immediately 108 Ambulance was called and he was immediately transferred to Mandvi Government Hospital, where he was declared dead. The appellant came to be arrested by the Investigating Officer and on completion of investigation, charge sheet was filed before learned Magisterial Court. Since the offences are triable by learned Sessions Judge, learned Magistrate committed the case to learned Sessions Judge. 3.2 By an order dated 06.04.2012, charge came to be framed by 5th (Ad- Hoc) Additional Sessions Judge, Surat vide Exh.4. Charges levelled against the accused are denied by the accused and therefore, the Public Prosecutor proceeded with the trial. Since the offences are triable by learned Sessions Judge, learned Magistrate committed the case to learned Sessions Judge. 3.2 By an order dated 06.04.2012, charge came to be framed by 5th (Ad- Hoc) Additional Sessions Judge, Surat vide Exh.4. Charges levelled against the accused are denied by the accused and therefore, the Public Prosecutor proceeded with the trial. In all, 20 witnesses were examined by the prosecution to prove the case whereas the defence has not examined any witness. Further statement of the appellant under Section 313 of the Code was recorded. The appellant denied the case put forward by the prosecution. 3.3 Learned Sessions Judge, after considering the oral as well as documentary evidence like panchnama, map, post-mortem note etc., by the impugned judgment dated 05.03.2013 convicted the present appellant – original accused as stated herein above. 3.4 Hence, this appeal. 4. Mr. B. C. Dave, learned advocate for the appellant, at the outset, would submit that the appellant accused does not want to challenge his involvement in the crime but would submit that it is not a case of murder as defined under Sections 299 and 300 of the IPC but the case would fall under exception 4 of Section 300 of the IPC which is treated as culpable homicide not murder and therefore, his case may be converted under Section 304 of the IPC. 5. By taking us through the deposition of the complainant, namely, Karansinh Mulji Vasava, P.W.-5 at Exh. 18, who lodged the FIR, as well as the contents of the FIR, Mr. Dave, learned advocate for the appellant would submit that the appellant and complainant belong to Adivasi community and some of the persons who had joined the marriage procession were under the influence of alcohol. When several persons were dancing at the tune of music band, the leg of deceased Mukeshbhai touched to the appellant. Pursuant to which, there was some altercation took place and some scuffle took place and at that time the appellant under the heat of passion took out knife and inflicted single blow to the deceased, which has resulted into death of said Mukeshbhai. Similarly, Mr. Dave took us through depositions of eyewitness Mr. Rameshbhai Ramjibhai, P.W.13, at Exh.29 as well as other eyewitness Mr. Similarly, Mr. Dave took us through depositions of eyewitness Mr. Rameshbhai Ramjibhai, P.W.13, at Exh.29 as well as other eyewitness Mr. Vitthalbhai Navabhai Vasava, P.W.14, at Exh.30 and would submit that this would be the manner and method in which the incident took place, where number of persons were dancing at the tune of music band and in a trivial quarrel one knife blow was given by the appellant to the deceased. Therefore, it cannot be said that there was any intention on the part of the appellant to commit murder as defined under section 300 of the IPC. He would submit that number of persons were dancing together and there was no animosity between the deceased and the appellant and therefore, the Trial Court has committed an error in coming to the conclusion that there was predetermination on the part of the appellant to commit murder of the deceased. By taking us through depositions of various witnesses, he would submit that the manner and method in which the incident had taken place, the case would fall under exception 4 of Section 300 of the IPC. He would submit that due to sudden fight and in a heat of passion, the appellant took out a knife and gave single blow, which cannot be treated as the appellant acted in cruel or unusual manner. He would submit that there was no intention on the part of the appellant to cause death or to cause such bodily injury, which is likely to result into death of the deceased and, therefore, the appellant may be convicted and sentenced accordingly under Section 304-II of the IPC. 6. Mr. Dave, learned advocate for the appellant, has also taken us through the depositions of witness namely Dr. Rajubhai Motibhai Chaudhari, P.W.16 at Exh.34 who has performed the post-mortem as well as the post-mortem note at Ext.35 and would further submit that only single knife blow was given to the deceased and therefore, he would submit that the case may be considered accordingly. Rajubhai Motibhai Chaudhari, P.W.16 at Exh.34 who has performed the post-mortem as well as the post-mortem note at Ext.35 and would further submit that only single knife blow was given to the deceased and therefore, he would submit that the case may be considered accordingly. In support of his submissions, by relying upon the decision in case of Stalin V. State represented by the Inspector of Police reported in (2020) 9 SCC 524 , he would submit the Hon’ble Apex Court, after considering several decisions delivered by the Hon’ble Apex Court itself, has held that the Court is supposed to examine the case of entire facts of the crime, when it is the case of single blow. Learned advocate for the appellant would submit that the appellant had already undergone 9 years and 4 months imprisonment and therefore, considering the decision rendered by the Hon’ble Apex Court in case of Stalin (supra) and considering the fact that the appellant had no intention to cause death by giving knife blow, the appeal may be allowed and the conviction may be converted into 304-II of the IPC. 7. On the other hand, Mr. Dharmesh Devnani, learned Additional Public Prosecutor, opposed this appeal and supported the reasons assigned by the Trial Court. He would submit that the appellant was having knife with him and had used the same in a trivial incident and had inflicted blow on the vital part of the deceased i.e. abdominal. He would submit that there was no reason for the appellant, to come with a knife, at the place where some altercation was going on for trivial issue. He would further submit that coming at a place of incident with a deadly weapon like knife, the appellant had intention to use the same and reached at the place where marriage procession was going on, took out the knife and gave fatal blow to deceased. 8. By taking us through the depositions of witnesses as well as post-mortem note, he would submit that the injury sustained by the deceased suggests that the knife was used with such a force, which resulted in immediate death of Mukeshbhai. He would submit that case would not fall in Section 304-II of the IPC. 8. By taking us through the depositions of witnesses as well as post-mortem note, he would submit that the injury sustained by the deceased suggests that the knife was used with such a force, which resulted in immediate death of Mukeshbhai. He would submit that case would not fall in Section 304-II of the IPC. By taking us through the reasoning of the judgment delivered by learned Trial Court, he would submit that the learned Trial Court has rightly held that the case would not fall under Section 304 of the IPC as pleaded by the appellant. He therefore would submit that the present appeal may be dismissed. 9. We have heard learned advocates appearing for the respective parties. We have also examined record and proceedings and reasons assigned by the Trial Court. Perused the depositions of the complainant, eyewitness, Dr. Rajubhai Chaudhari, as well as postmortem note. Thus, it appears that number of persons were dancing in the marriage procession, wherein some altercation took place between the deceased and appellant and some scuffle was also there at that time the appellant took out knife and gave single blow, which had resulted into death of deceased Mukeshbhai. 10. We have also gone through the injury sustained by the deceased as referred in Column 17 of the post-mortem note at Exh.35, which reads as under: “a penetrating incised wound over left lumber region. 8 cm left to umblicus, 2 cm long x 0.5 cm bredth, abdominal cavity deep. Direction forward and horizontally. No any exit would. Omentum with intestine out side wound. Dried blood over abdomen.” 11. We have also gone through the decision in case of Stalin (Supra) relied upon by Mr. Dave, learned advocate for the appellant wherein the Hon’ble Apex Court, after considering the several decisions delivered by the Hon’ble Apex Court itself and considering the facts involved in that case and one blow received by the deceased, converted the conviction under Section 304-II of the IPC and sentenced accordingly. 12. It is pertinent to note that except single injury, there are no external injuries found on the body of the deceased. The case of death shown in postmortem note at Exh.35 read as under: “Cause of death, Name Mukeshbhai Mulajibhai Vasava (P.M. perform on 27.05.2011 is Hemorrhagic shock due to stab wound at left lumber region.” 13. 12. It is pertinent to note that except single injury, there are no external injuries found on the body of the deceased. The case of death shown in postmortem note at Exh.35 read as under: “Cause of death, Name Mukeshbhai Mulajibhai Vasava (P.M. perform on 27.05.2011 is Hemorrhagic shock due to stab wound at left lumber region.” 13. Before proceeding with the facts of the case, we would like to have a close look at some of the relevant provisions. Sections 299 and 300 of IPC read as under :- 299. Culpable homicide.- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Explanation 1.- A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.- Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.- The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. 300. Explanation 3.- The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. 300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or – (Secondly)- It is done with intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or – (Thirdly)- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or – (Fourthly)- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.- When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:- (First)- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. (Secondly)- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. (Thirdly)- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. (Thirdly)- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm that in necessary for the purpose of such defence. Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. 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. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.” 14. In the case of Rambir vs. State (NCT of Delhi) (2019) 6 SCC 122 , in paragraph 16 of the decision, the Hon'ble Supreme Court has observed as under :- “16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required : (i) There must be a sudden fight; (ii) There was no premeditation; (iii) The act was committed in a heat of passion; and (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner. By applying the above tests, the High Court has found that two of the ingredients are absent so as to bring the case of the appellant under Exception 4 to Section 300 IPC. By applying the above tests, the High Court has found that two of the ingredients are absent so as to bring the case of the appellant under Exception 4 to Section 300 IPC. The High Court has found that the act of picking up a ‘saria’ and compressing forcefully the neck of his wife by the appellant, can, by no stretch of imagination, be said to be an act committed in a heat of passion. Further it is held that, the manner in which wife’s neck also the appellant depicts an compressed act of his extreme cruelty.” Now if we examine the facts of the case and circumstances which have been brought on record by the prosecution itself, the four ingredients referred to herein above are satisfied, in our opinion, since there was sudden fight subsequent to altercation on trivial issues between the appellant and the deceased and hence, there is no question of premeditation subsequent to quarrel in a heat of passion, the incident has taken place and it cannot be said that the appellant had taken undue advantage by committing the offence in a cruel or unusual manner since one blow was given on the abdomen. We are not in agreement with the submission of learned Additional Public Prosecutor Ms. Shah that giving a single knife blow is also required to be treated as offence committed in cruel manner. 15. In the case of Tularam v. State of Madhya Pradesh, (2018) 7 SCC 777 , subsequent to altercation, the person was attacked with Lathis and given several blows which resulted into death. In paragraph 9 of the said decision relying upon the decision in the case of Surain Singh v. State of Punjab, (2017) 5 SCC 796 , the Hon'ble Supreme Court has observed as under :- “9. Recently in Surain Singh v. State of Punjab, it was observed that: “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. 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......… 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. As The used in expression “undue advantage” as used in the provision means “unfair advantage”. 16. Having considered overall facts of the case and the submission made by Mr. Dave, learned advocate for the appellant that there was no intention on the part of the appellant to cause death and considering the fact that the appellant has already undergone sentence of 9 years and 4 months and also considered the decision in case of Stalin (supra), we are of the opinion that the appeal deserves to be partly allowed and therefore, we pass the following order: 17. The appeal is partly allowed. The judgment and order dated 05.03.2013 passed by the learned 4th Additional Sessions Judge, Surat in Sessions Case No.154 of 2011, convicting and sentencing the appellant for life imprisonment, is modified and altered from Section 302 of the IPC to Section 304-II of the IPC. The period of sentence already undergone by the appellant- convict shall be considered for remission and set off. The appellant be released forthwith, if not required in any other case. Rest of sentence is upheld. 18. R & P be sent back to the concerned Court forthwith.