JUDGMENT : A. J. DESAI, J. 1. By way of the present appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the appellant has challenged the judgment and order of conviction dated 13.01.2017 rendered by learned 5th Additional Sessions Judge, Ankleshwar (hereinafter referred to as 'the learned Trial Court') in Sessions Case No.09 of 2014 by which the appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 and ordered to undergo life imprisonment with fine of Rs.1,000/- and in default thereof, ordered to further undergo simple imprisonment for a period of 30 days. 2. The appeal came to be admitted on 11.10.2018. The records and proceedings along with Paper-book was called for from the learned Trial Court and the same has been placed before this Court accordingly. 3. The short facts of the case put forward by the prosecution before the learned Trial Court is as under :- 4. That on 26.9.2013, one Madinaben @ Sindhuben wife of Majidbhai Ismailbhai Shaikh, resident of Ankleshwar lodged an FIR with Ankleshwar City Police Station and alleged that one Karan L. Vasava and Prakash Dinesh Vasava came on their bike and informed her that near the house of Pamma (uncle of the deceased), his son Razaaq has been attacked by the present appellant with knife and has been admitted in the hospital. She along with her daughter Saeeda went to the Hospital where she found her son dead. It was further alleged that her daughter Saeeda was having relation with the appellant which was not liked by her son Razaaq and, therefore, Razaaq used to raise objection about the said relation and in that connection, on the date of incident, some altercation and scuffle took place wherein the appellant took out a knife and gave one blow on the chest of Razaaq due to which he succumbed to the injury in the Hospital. 5. The appellant came to be arrested on 28.9.2013. Upon completion of investigation, charge-sheet was filed before Court of learned Magistrate. Since the offences are triable by learned Sessions Judge, learned Magistrate has committed the case to the learned Sessions Judge having jurisdiction to try the case. 5. The charge was framed at Exh.7 against the appellant - accused which he denied. Hence, the prosecution proceeded with the trial. Upon completion of investigation, charge-sheet was filed before Court of learned Magistrate. Since the offences are triable by learned Sessions Judge, learned Magistrate has committed the case to the learned Sessions Judge having jurisdiction to try the case. 5. The charge was framed at Exh.7 against the appellant - accused which he denied. Hence, the prosecution proceeded with the trial. The prosecution in all examined 21 witnesses, produced several documentary evidence in support of its case. The appellant did not examine any witness to defend his case. Thereafter, further statement of the appellant under Section 313 of the Code was recorded. The accused denied the case put forward by the prosecution. 6. The learned Trial Court, after scrutinizing oral as well as documentary evidence in detail as well as considering the arguments advanced on behalf of the appellant and the respondent, held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code and imposed sentence upon the appellant as referred above. 7. Hence the present appeal. 8. Mr. Nasir Saiyed, learned advocate appearing for the appellant, at the outset, would submit that the appellant does not want to challenge his involvement in the crime. However, the appellant would request the Court to convert his sentence from Section 302 IPC to that one under Section 304 of the Indian Penal Code and the sentence may be reduced accordingly. He would further submit that the complainant and other witnesses have not supported the case of the prosecution and hence, the learned Trial Court has erred in convicting the appellant. He would further submit that it is an admitted position that the complainant is not an eye-witness to the incident. However, from her deposition i.e. Madinaben - P.W. 3 Exh.28, it is clear that deceased Razaaq i.e. son of the complainant had some issues with regard to relationship of his daughter Saeeda with the appellant and due to that, some altercation took place between them and in scuffle, the appellant took a knife and gave a single blow to the deceased. The said information was received by the complainant through other witnesses. The said information was received by the complainant through other witnesses. He would further submit that even the eye-witness Kaushalben Vasava - P.W. 4, Exh.30 who happens to be sister-inlaw of the complainant and paternal aunt of the deceased has stated in her deposition that some altercation and scuffle took place between the appellant and the deceased with regard to relations between Saeeda and appellant and in that scuffle, the appellant took out a knife and gave a single blow to deceased. Similar is the say of witness Sanjay C. Valand P.W. 6, Exh.32, Yogesh Ramsingbhai Vasava P.W. 8 Exh.34. He would further submit that all these witnesses have consistently said that some scuffle took place between the appellant and deceased wherein the alleged incident has taken place. 8.1 He would further submit that the deceased was against the relation of Saeeda - his daughter with the appellant which resulted into altercation and scuffle and this aspect is proved from the deposition of Saeeda P.W. 11 Exh.37. He would further submit that the said witness Saeeda has admitted that she was in relationship with the appellant and her brother Razaaq did not like the same. She has further stated in her deposition that Razaaq used to scold her about her relationship with the appellant. In such circumstances, when the incident has taken place near the house of one of the witness, namely, Kaushalben, it cannot be said that there was motive on the part of the appellant to commit the murder. He would further submit that it can safely be said that the incident has taken place in a sudden fight and in the heat of passion of sudden quarrel and in a scuffle, the appellant lost his control and gave single blow and, therefore, it cannot be said that the appellant has taken undue advantage or acted in a cruel or unusual manner. 8.2 Apart from the above submissions, Mr. Saiyed has placed on record affidavits of the original complainant, namely, Madinaben Majidbhai Shaikh and her daughter Saeeda wife of Sunil Vasava. In the affidavit filed by Saeeda, she has declared that she has legally married to the appellant and at present she is mother of two minor children. Similar is the affidavit of complainant, Madinaben Shaikh and she has also stated that she has no objection if the conviction / sentence awarded upon the appellant is reduced. In the affidavit filed by Saeeda, she has declared that she has legally married to the appellant and at present she is mother of two minor children. Similar is the affidavit of complainant, Madinaben Shaikh and she has also stated that she has no objection if the conviction / sentence awarded upon the appellant is reduced. Both the original complainant as well as her daughter Saeeda have remained present before this Court and have admitted the contents of the affidavits filed by them. 8.3 In support of his submissions, Mr. Saiyed has relied upon the decisions of the Hon'ble Supreme Court in the case of Nandlal v. State of Maharashtra, (2019) 5 SCC 224 and in the case of Stalin v. State represented by the Inspector of Police, (2020) 9 SCC 524 . He, therefore, would submit that the conviction of the appellant may be converted from Section 302 IPC to that one of Section 304 Part II IPC and the sentence of the appellant may be reduced accordingly. 9. On the other hand, learned Additional Public Prosecutor appearing for the respondent - State has opposed this appeal and would submit that the incident has taken place at about 8 O'clock in the night hours near the house of one of the witness Kailashben. He would further submit that in a trivial issue, the appellant took out a knife and had given a blow to the deceased on vital part of the body i.e. on the chest which resulted into death of deceased on the same day and, therefore, the submission made by learned advocate appearing for the appellant to convert the sentence to Part II of Section 304 may not be accepted. He, therefore, would submit that the appeal may be dismissed. 10. We have heard learned advocates appearing for the respective parties and perused the judgment of the learned Trial Court. We have also gone through the Records and Proceedings of Sessions Case received from the learned Trial Court. Since the appellant has not challenged his involvement in the crime and since it was requested to alter the conviction as the case is particularly based on a single blow, we have examined the evidence on that line and scrutinized the depositions of the witnesses. Since the appellant has not challenged his involvement in the crime and since it was requested to alter the conviction as the case is particularly based on a single blow, we have examined the evidence on that line and scrutinized the depositions of the witnesses. It is an undisputed fact and emerged from the record of the case that the appellant was in relationship with one Saeeda who happens to be real sister of the deceased. It has come on record that the deceased never liked the said relationship and, therefore, deceased used to take objection and had also scolded his sister Saeeda. It emerges from the deposition of all the witnesses that on the date of incident also, some altercation took place between the appellant and deceased and at that time, in heat of passion, the appellant took out a knife and gave single blow on the chest of the deceased due to which he succumbed to the injury. It has also come on record that in the said scuffle, the appellant also sustained injuries. We have also considered the fact that the original complainant, namely, Madinaben Majidbhai Shaikh and her daughter Saeeda wife of Sunil Vasava have not supported the case of the prosecution. 11. As per the case put forward by the prosecution, some altercation took place between the appellant and deceased Razaaq pursuant to which the appellant lost his control and gave a single knife blow in a heat of moment and, therefore, in our opinion, the case would fall under Exception IV to Section 300 IPC which can be treated as culpable homicide not amounting to murder. The appellant had lost his control in a sudden fight and sudden quarrel with Razaaq and in spur of moment, gave a single knife blow which cannot be treated that the appellant had taken any undue advantage or acted in a cruel manner or unusual manner. Further, considering the peculiar fact that the appellant has married to Saeeda, daughter of complainant and sister of deceased and is father of two minor children, we are of the opinion that the sentence imposed to the appellant under Section 302 IPC is required to be converted to Section 304 Part II IPC. 12. The Hon'ble Supreme Court in the case of Nandlal v. State of Maharashtra, (Supra) has held in paragraphs 12 to 14 as under :- "12. 12. The Hon'ble Supreme Court in the case of Nandlal v. State of Maharashtra, (Supra) has held in paragraphs 12 to 14 as under :- "12. The only point falling for consideration is whether the appellant-accused has made out a case for modification of his conviction under Section 304 Part II IPC instead of Section 302 IPC ? 13. In order to bring the case within Exception 4 to Section 300 IPC, the following conditions enumerated therein must be satisfied :- (i) The act must be committed without premeditation in a sudden fight in the heat of passion; (ii) upon a sudden quarrel; (iii) without the offender’s having taken undue advantage; and (iv) the accused had not acted in a cruel or unusual manner. 14. Even if the fight is unpremeditated and sudden, if the weapon or manner of retaliation is disproportionate to the offence and if the accused had taken the undue advantage of the deceased, the accused cannot be protected under Exception 4 to Section 300 IPC. Considering the scope of Exception 4 to Section 300 IPC, in Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395 , this Court held as under :- "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 prosecution not covered by the first exception, after which its place would have been more appropriate……….. 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”" (emphasis supplied). The same principle was reiterated in Pappu v. State of M.P. (2006) 7 SCC 391 and in Surain Singh v. State of Punjab (2017) 5 SCC 796 where the conviction under Section 302 IPC was modified under Section 304 Part II IPC." 13. The expression “undue advantage” as used in the provision means “unfair advantage”" (emphasis supplied). The same principle was reiterated in Pappu v. State of M.P. (2006) 7 SCC 391 and in Surain Singh v. State of Punjab (2017) 5 SCC 796 where the conviction under Section 302 IPC was modified under Section 304 Part II IPC." 13. The Hon'ble Supreme Court in the recent decision in the case of Stalin v. State represented by the Inspector of Police, (Supra) has held in paragraph 7.2 to 12 as under :- "7.2 From the above stated decisions, it emerges that there is no hard and fast rule that in a case of single injury Section 302 IPC would not be attracted. It depends upon the facts and circumstances of each case. The nature of injury, the part of the body where it is caused, the weapon used in causing such injury are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. It cannot be laid down as a rule of universal application that whenever the death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case, more particularly, under the circumstances narrated herein above, the events which precede will also have a bearing on the issue whether the act by which the death was caused was done with an intention of causing death or knowledge that it is likely to cause death, but without intention to cause death. It is the totality of the circumstances which will decide the nature of offence. 8. Now, so far as the submission on behalf of the accused that the motive alleged is of the incident prior to four months of the present incident and that the prosecution has failed to establish and prove is concerned, it is required to be noted that in the present case there are three eye-witnesses believed by both the Courts below and we also do not doubt the credibility of PWs 1, 2 and 3. As held by this Court in catena of decisions, motive is not an explicit requirement under the Penal Code, though “motive” may be helpful in proving the case of the prosecution in a case of circumstantial evidence. As held by this Court in catena of decisions, motive is not an explicit requirement under the Penal Code, though “motive” may be helpful in proving the case of the prosecution in a case of circumstantial evidence. As observed herein above, there are three eye-witnesses to the incident and the prosecution has been successful in proving the case against the accused by examining those three eyewitnesses and therefore, as rightly observed by the High Court, assuming that the alleged motive is the incident which had taken place prior to four months or the prosecution has failed to prove the motive beyond doubt, the same shall not be fatal to the case of prosecution. 9. As observed and held by this Court in the case of Jafel Biswas v. State of West Bengal (2019) 12 SCC 560 , the absence of motive does not disperse a prosecution case if the prosecution succeed in proving the same. The motive is always in the mind of person authoring the incident. Motive not being apparent or not being proved only requires deeper scrutiny of the evidence by the courts while coming to a conclusion. When there are definite evidence proving an incident and eye-witness account prove the role of accused, absence in proving of the motive by prosecution does not affect the prosecution case. 10. Applying the law laid down by this Court in the aforesaid decisions, more particularly the decisions on the single injury and the facts on hand, it is required to be considered whether the case would fall under Section 302 IPC or any other lesser offence. PW3 – Nelson, who is an eye-witness to the incident right from the beginning, deposed that when the deceased – Kalidas served extra beer to two persons who came from outside, the accused became angry and told the deceased why he is giving more beer to out-town people and not giving to local people and thereafter the problem started and in that scuffle the accused took out the knife and stabbed from behind. From the medical evidence, the deceased sustained the following injuries : "External Injuries : A stab wound about 3 x 1.5 cm and 8 cm deep with clean edges present over the back on the right side corresponding to D11 vertebera present. Wound edges swollen, read with adherent blood.” 11. From the medical evidence, the deceased sustained the following injuries : "External Injuries : A stab wound about 3 x 1.5 cm and 8 cm deep with clean edges present over the back on the right side corresponding to D11 vertebera present. Wound edges swollen, read with adherent blood.” 11. As per Exception IV to Section 300 IPC, 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 and not having acted in a cruel or unusual manner. In the present case, at the place of incident the beer was being served; all of them who participated in the beer party were friends; the starting of the incident is narrated by P.W.3, as stated herein above. Therefore, in the facts and circumstances, culpable homicide cannot be said to be a murder within the definition of Section 300 IPC and, therefore, in the facts and circumstances of the case narrated herein above and the manner in which the incident started in a beer party, we are of the opinion that Section 302 IPC shall not be attracted. 12. Now, the next question which is posed for consideration of this Court is whether the case would fall under Section 304 Part II IPC? Considering the totality of the facts and circumstances of the case and more particularly that the accused inflicted the blow with a weapon like knife and he inflicted the injury on the deceased on the vital part of the body, it is to be presumed that causing such bodily injury was likely to cause the death. Therefore, the case would fall under Section 304 Part I of the IPC and not under Section 304 Part II of the IPC." 14. In light of the above principles laid down by Hon'ble the Supreme Court and considering the depositions of the witnesses and other evidence on record referred above as well as considering the affidavits of complainant as well as Saeeda, wife of appellant and daughter of complainant filed today, we are of the considered opinion that the same suggests only one blow given by the appellant on the chest of the deceased. Furthermore, the act was committed without premeditation in a sudden fight in the heat of passion and the accused has not taken any undue advantage of the same and the accused had not acted in a cruel or unusual manner. Hence, we are of the considered opinion that the act on the part of the appellant is covered by Part II of Section 304 IPC. Therefore, we set aside the conviction and sentence recorded by the learned Sessions Court under Section 302 IPC and instead, the appellant is convicted under Part II of Section 304 IPC and order the appellant to undergo rigorous imprisonment already undergone i.e. 6 years and 22 days. Accordingly, we pass the following order :- 15. The Criminal Appeal stands partly allowed. The judgment and order of conviction and sentence dated 13.01.2017 rendered by the learned 5th Additional Sessions Judge, Ankleshwar in Sessions Case No.09 of 2014 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860 and ordered to undergo sentence of life imprisonment with fine of Rs.1,000/- and in default thereof, ordered to undergo further simple imprisonment for 30 days, is hereby modified to that of one under Section 304 Part-II of IPC. The appellant is held guilty for the offence punishable under Section 304 Part-II of IPC and ordered to undergo the sentence already undergone i.e. 6 years and 22 days. The appellant – SUNIL BABUBHAI VASAVA @ LALA NIZAMUDDIN SAUKAT ALI SHAIKH, shall be immediately released from the prison, if not required in any other case. Registry is directed to communicate this order to the concerned Jail Authority by fax / email message forthwith. Record and Proceeding be sent back to the learned trial Court forthwith.