JUDGMENT : Heard Mr. G. Tarak, learned counsel for the appellant. Also heard Ms. T. Jini, learned Additional Public Prosecutor, State of Arunachal Pradesh. 1. This appeal is directed against the judgment dated 27.09.2018 and sentence dated 09.10.2018, passed by the learned Sessions Judge, Yupia in Session Case No. 20/2015, whereby the appellant was convicted under Section 304-II IPC and sentence to undergo for rigorous imprisonment for three years and to pay fine of Rs. 20,000/- and in default of payment of fine, to undergo further R.I. for six months. 2. The case of the Prosecution: I. The prosecution case in nutshell is to the effect that the present appellant/accused, on 24-02.2015, came to the residence of the informant about 10:10 PM, wake up the husband of the informants, who was asleep at that point of time and offered him drinks. They drank together till 10:30 PM. Meanwhile, the husband of the informant returned to sleep. It is the further story of the prosecution that the informant No. 1 requested the appellant never to come again anytime as the present appellant had made her husband alcoholic every time he came. Then the appellant started quarreling with the informant and started hitting and punching her and thereafter, the husband woke up and the appellant fled the scene and the husband of the informant chased the appellant however, the appellant hit the husband of the informant with the help of a stone many times in the chest and other parts of body. Then her husband fell unconscious on a drain. Though her husband was rushed to hospital but died on the way. II. On such information being lodged before the Officer-in-Charge, Balijan Police Station, a case being BJN/PSC/No.06/15 under Section 302 of the IPC was registered on 25.02.2015 and investigation was started. On completion of investigation, the Investigating Officer had submitted charge-sheet under Section 302 of the IPC on 26.04.2015. III. On the basis of such charge-sheet the learned Sessions Judge had framed charges under Section 302 of the IPC against the appellant on 03.06.2015. Since, the appellant had pleaded not guilty, the matter went up for trial. IV. During the trial, prosecution had examined as many as 15 (fifteen) witnesses to bring home the charge framed against the appellant and exhibited 7 (seven) documents, 1 (one) material exhibit and 4 (four) numbers of photographs. Since, the appellant had pleaded not guilty, the matter went up for trial. IV. During the trial, prosecution had examined as many as 15 (fifteen) witnesses to bring home the charge framed against the appellant and exhibited 7 (seven) documents, 1 (one) material exhibit and 4 (four) numbers of photographs. In his statement recorded under section 313 Cr.P.C., the appellant had denied all the incriminating circumstances put to him. The appellant examined himself as DW-1. V. Upon conclusion of the trial, learned Sessions Judge, had passed the judgment and sentence, convicted the appellant under Section 304-II of the IPC. The same is under challenge. 3. The prosecution witness:- Before any determination is made by this Court in this appeal, let this Court examine the prosecution witnesses:- I. PW-1, Smti Ningee Pani, is the first wife of the deceased Ningee Naka. She deposed that she knows the accused and they are from the same village. She deposed that on 24.02.2015, she along with the deceased, appellant and informant (PW-2) went to Dupia, Assam to the house of her brother to collect Rs. 5000/- for her. The vehicle was driven by the accused. After collecting the money they came back to Hollongi and after dropping them at their house, the accused went away and again came back at about 08:00 PM and searched for her husband. According to her, the deceased husband went to the bed. After some time, the deceased husband wanted to go back to the bed. At that point of time, the accused and the informant, PW-2 (2nd wife of the deceased) were in veranda, while she was preparing the bed for her husband. The PW-2, asked the accused to go back and then accused got angry and assaulted her. They physically fought with each other. Then PW-1 came out to separate the appellant and the PW-2. Then she saw her husband woke up and coming out of the room but accused suddenly gave her also a blow on her eyes, due to which she fell on the floor and she got almost senseless. When she regained her sense, she heard PW-2 shouting for help. When she came out, she saw PW-2 pointing towards her deceased husband showing her that he had fallen in the drain. When she called her husband, he did not reply and at that point of time her husband was still breathing. When she regained her sense, she heard PW-2 shouting for help. When she came out, she saw PW-2 pointing towards her deceased husband showing her that he had fallen in the drain. When she called her husband, he did not reply and at that point of time her husband was still breathing. They could not lift up their husband lying on the drain. So they called for help from PW-5 and PW-11, two Karbi boys who were walking on the road and with the help of these two boys, they lifted the deceased husband. She also deposed that when her husband was lifted, she saw her husband having injury on his leg, forehead, head, abdomen, and back shoulder and he was very serious. Then they managed one TATA sumo vehicle belonging to PW-6 and by the said vehicle the deceased was evacuated to R. K. Mission Hospital, Itanagar. The vehicle was driven by PW-6 and accompanied by PW-11 and PW-5. They reached hospital at about 11:30 PM, where the Doctor declared that her husband was brought dead. On the next day, post mortem was conducted and body was brought back for the last rites of the deceased. She proved the exhibit F.I.R. and her signature. During her cross-examination she deposed that on the date of the incident after coming back from Assam, she served local apong (wine) to them. During cross examination she admitted to a suggestion that PW-2 asked the appellant not to come to her house frequently and give apong (wine) to the deceased husband and for which the accused assaulted PW-2. During cross examination she further deposed that while going to Assam, they did not quarrel. And when she regained her sense after being hit by the accused she heard PW-2 saying that accused hit her husband with stone and fell him down in the drain. She further deposed that there was a light in between the house and nallah (drain). She did not see the accused while Anjali (PW-2) was shouting. She denied the suggestion that there was enmity between PW-2 and accused. She identified materials exhibits (stone, the weapon of offence) shown to her in the Court and deposed that the said stone was shown to her by PW- 2 at the place of occurrence and told that deceased was killed by that stone. II. The prosecution has projected PW-2 as the eye witness. She identified materials exhibits (stone, the weapon of offence) shown to her in the Court and deposed that the said stone was shown to her by PW- 2 at the place of occurrence and told that deceased was killed by that stone. II. The prosecution has projected PW-2 as the eye witness. PW-2, Ningee Anjali is the second wife of the deceased. She identified the accused present in the dock and deposed that he killed her husband on 24.02.2015. She deposed that on the night of the incident, it was already late about 10:00 PM but the accused was still in their house and taking liquor. Then she asked him to go his house. He refused and warned her that he will assault her. Then the accused started physical assaulting her by giving a slap on her cheek and both of them started fighting with each other. According to her, at that time, her husband and PW-1 were inside the house in the common room. While the accused and she were fighting, PW-1 came out and tried to separate them. But the accused gave her blow on her face due to which PW-1 fell down on the ground and she could not speak. Then her deceased husband came out from the common room. The PW-2 was carrying her baby and the baby was about to fall and her deceased husband asked her to go inside the room. While she was going inside the room, the deceased husband asked the accused why he was assaulting PW-1. At that time, according to the PW-2, the accused was standing few steps away from the veranda with a stone in his hand. Her husband went towards the accused asking the accused why he was assaulting the PW-2 and at that time she saw the accused hit her deceased husband with the stone on his abdomen and pushed him towards downside. Then the accused pushed her deceased husband into the drain. Then she saw her deceased husband was lying injured in the drain. Then she saw here and there but no one was there. In the meantime, PW-1 also came out. They tried to lift their husband. PW-5 and PW-11 helped them and lifted the deceased husband and took him to the common room. They tried to massage the deceased husband’s body with oil but he could not even speak. Then she saw here and there but no one was there. In the meantime, PW-1 also came out. They tried to lift their husband. PW-5 and PW-11 helped them and lifted the deceased husband and took him to the common room. They tried to massage the deceased husband’s body with oil but he could not even speak. He was having injuries on his face, forehead near eyebrow, abdomen and back shoulder. Then they managed the vehicle belonging to PW-6 and within 10-15 minutes evacuated the deceased husband to R. K. Mission Hospital at Itanagar where the Doctor declared him brought dead. On the next date, post mortem was conducted and body was taken back for last rites. She identified the stone (material exhibit) and deposed that it is the same stone by which the accused assaulted and hit her deceased husband. She proved the Material Exhibit- 1 as weapon of offence and Paper Exhibit-2 as the Seizure Memo and identified that thumb impression in the seizure memo was not her but of PW-1, who had also seen the stone. During cross examination she deposed that distance between veranda of the house and the drain is about 8-10 meters. She deposed that the accused was standing with the stone in the veranda. The accused hit the deceased once on the abdomen and thereafter pushed down the deceased husband on the area which is sloppy and the accused pushed down her husband. Thereafter, the accused fled away from the spot. During cross she deposed that when PW-1 came out from the house asking her what happen and then she pointed her finger toward the deceased lying on the drain. When they asked for help from the Karbi boys, then also she told them that the accused assaulted her husband. She has also told PW-6 that her husband was assaulted by the accused. But she did not have any occasion to tell the Doctor that the accused had assaulted her husband. The accused also came back along with other and he was smiling at that time. The accused pushed the deceased and she saw the deceased lying with his face towards the sky. She denied the suggestion that she had implicated the accused falsely because of enmity with him. The accused also came back along with other and he was smiling at that time. The accused pushed the deceased and she saw the deceased lying with his face towards the sky. She denied the suggestion that she had implicated the accused falsely because of enmity with him. During cross-examination, she also deposed that the Materials Exhibit -1 was having blood stain, when it was found and seized but when it was shown in the Court she could not see any blood stain as it was kept for about seven months. III. Sri John Rongfa is the PW-5, who according to PW-1 and PW-2 helped them to lift the injured husband. He deposed that on the night of the incident he along with his friend Chotu Rongfa PW-7, were coming back from Itanagar side as they went there for a farewell party of one of his friend. When they reached the bridge point, they heard some sound of shouting and when they came near, they saw a lady was crying and shouting for help. She (PW-2) told them that her husband was lying on the drain. The injured was still alive. Then they tried to feed water to the injured person but he could not take the water and the injured was having pain in the stomach so they tried to massage his stomach. Thereafter they were asked to call for neighbors and vehicles. Then they called PW-6, who had a TATA Sumo vehicle and they took the injured to the R. K. Mission Hospital at Itanagar. In the vehicle, there were PW-1, PW-2, PW-6, PW-11 and one Nabam Raja. On reaching the hospital, the Doctor declared the person brought dead. During cross examination, he deposed that in the night of the incident, they saw one person down side and one following him. As there was no proper light they could not see it properly. After some time, they heard that PW-2 was shouting for help. When they asked PW-2, she told them that deceased fell down in the drain. They also deposed that while deceased was in serious condition and was being massaged, at that time accused also came. They also deposed that when they asked PW-2, she told that the deceased fell in the drain by slipping while chasing the accused. IV. When they asked PW-2, she told them that deceased fell down in the drain. They also deposed that while deceased was in serious condition and was being massaged, at that time accused also came. They also deposed that when they asked PW-2, she told that the deceased fell in the drain by slipping while chasing the accused. IV. PW-11 namely Rabi Rangpi, is the companion of PW-5, who helped, according to the PW-1 and PW-2, in lifting the deceased. He deposed that he and his friend PW-5 on reaching the RCC bridge saw one person running from the house of deceased. After walking a while, he saw PW-1 was trying to lift the deceased from a drain. After some time, he saw PW-2 coming out from her house. PW-1 sought for help. Thereafter on the request of PW-1, they massaged the deceased with oil and also offered water. Later they took the deceased to R. K. Mission Hospital at Itanagar in a vehicle. During cross examination he deposed that PW-1 told them that deceased while chasing the accused in a drunken stage fell down in the drain. He also deposed during cross examination that when the deceased was taken to the hospital in a vehicle the accused came there. V. PW-6 Nabam Tangu is the owner and driver of the Tata sumo vehicle who carried the deceased from the place of occurrence to R. K. Mission Hospital at Itanagar. He deposed that he know the accused person and on the date of incident, while he was sleeping, PW-5 came to his house and informed him that deceased is in serious condition and he had to be taken to the hospital in his TATA sumo. Accordingly, PW-2 went to the house of the deceased and found the deceased lying unconscious on the bed. He was very serious. He deposed that on being asked the wives of the deceased told him that deceased was lying injured in the drain. They took the deceased to R. K. Mission Hospital at Itanagar and the Doctor declared him brought dead. During cross examination he deposed that the wife of the deceased use to sell local apong (wine) in their house. He deposed that he stated before the police that deceased and wife used to quarrel with each other. They took the deceased to R. K. Mission Hospital at Itanagar and the Doctor declared him brought dead. During cross examination he deposed that the wife of the deceased use to sell local apong (wine) in their house. He deposed that he stated before the police that deceased and wife used to quarrel with each other. He also admitted the suggestion of the defence that the second wife of the deceased (PW-2) by temperament is a quarreling lady. He admitted a suggestion of the defence that on reaching the house of the deceased and on being asked the wife of the deceased told him that the accused and the deceased fought with each other and at the time of chasing the accused, the deceased fell on the drain. VI. PW-12 is the Doctor who conducted post mortem upon the dead body. She found the following external injuries. External injuries:- i. Multiple abrasions on right medial arm and forearm measuring 2.9 cm x 5 cm. ii. Abrasion on right lower chest measuring 3cm x 2cm, 3 cm from the midline, 116 cm above heel. iii. Abrasion on left chest 1 x 0.7 cm size, 4 cm from midline, 120 cm above heel. iv. Abraded scab above right eyebrow measuring 1 cm x 0.6 cm, 5.5 cm from midline. v. Abrasion on left forehead measuring 0.6 cm x 0/6 cm size, 4 cm from midline. vi. Abrasion on left 0.6 cm x 0.6 cm size, 8 cm from midlne. vii. Abrasion on tip of left shoulder anteriosly measuring 3 cm x 2 cm. viii. 2 (two) abrasion on posteriously part of left elbow measuring 1.4 cm x 1.4 cm. ix. Abrasion on midchin 1 cm x 1 cm size. x. Abrasion on lower part of right leg medially measuring 2 cm x 0.8 cm, 11 cm above heel. xi. Abrasion just above heel (right) 2 cm x 2 cm. xii. Abrasion on dorsum of right foot measuring 2 cm x 0.4 cm. xiii. Multiple superficial abrasion on left leg over an area of 19 cm x 9 cm ranging from 0.3 x 0.3 cm to 1 cm x 0.5 cm. On examination internally she found the following injuries. “vii. Spleen- Ruptured 2 (two) in number”. She opined that the death was caused due to hemorrhage and shock resulting from the rupture of the spleen following forced blunt trauma on left chest wall. On examination internally she found the following injuries. “vii. Spleen- Ruptured 2 (two) in number”. She opined that the death was caused due to hemorrhage and shock resulting from the rupture of the spleen following forced blunt trauma on left chest wall. During her cross-examination, she deposed that all the injuries found on the deceased were on the front and lateral size. She further deposed that such injuries can be caused if runs/falls down from a height on any drain. In such an event, there should have been injuries on the head also, which was missing in the case of the deceased. During cross examination, she opined that the injuries seem to have been caused by some rough and hard objects. She further deposed that none of the external injuries were fatal in nature. The internal injury on the spleen was the fatal one. VII. PW-7, PW-9, PW-10, are all hearsay and they deposed the character of the deceased and their evidences are not relevant for determination of the present case. VIII. PW-8 is also a witness who heard about the incident and he is the owner of the vehicle which was hired by the accused on the date of incident for going to Assam. His evidence is also not relevant for determination of the present appeal. IX. PW-14 is the Police Officer who seized the weapon of offence. He deposed that the weapon of offence, a stone was seized by him. During cross examination, he deposed that on being pointed out by the witness, he collected and seized the weapon of offence and at the time of seizing, there were no any other stone present at the place of occurrence. During cross examination he admitted that the weapon of offence was not sent for any FSL examination to ascertain the finger prints. During cross examination, he also stated that witness PW-2 had clearly stated before him that on being hit by the stone on the chest, her husband fell unconscious in the drain nearby. X. PW-13 is the Seizure witness of the weapon of offence. He proved his signature in the seizure memo. He deposed that the stone, which was seized by the police had blood stain. XI. PW-15 is the Sub Inspector of Police. He was examined to identify the signature of the I.O. of the case, who expired in the meantime and he proved the signature. He proved his signature in the seizure memo. He deposed that the stone, which was seized by the police had blood stain. XI. PW-15 is the Sub Inspector of Police. He was examined to identify the signature of the I.O. of the case, who expired in the meantime and he proved the signature. During cross-examination, he deposed that he knew Late Chatung who was the I.O. of the case and who filed the chargesheet since the training days as both of them were batch mates and many a time he saw the signature of Chatung. 4. The defence Case:- I. The statement of the accused appellant was recorded under Section 313 of the Cr.P.C. and he admitted the fact that he went to the house of the deceased on 24.02.2015. He saw that PW-2 was quarrelling with her deceased husband and when the deceased went inside the house, PW-2 started arguing with him and also used slang language, so he too argued with her and thereafter left the house. He further took a stand that he did not assault PW-1 and PW-2. He stated that he once again went back to the house of the deceased and found the deceased in an injured condition. He stated that the deposition made by the PW-2 was false. In his defence, he stated that he had a quarrel with PW-2, as she used slang languages and left their house and after reaching such distance he could hear the cry of PW-2, then he along with one Nabam Moni returned to the house of the deceased. II. The accused appellant deposed as DW-1. In his defence, he deposed that the PW-1 and PW-2 were quarreling with him and PW- 2 challenged him to assault her but he made his way out and came back to his house. During cross examination, he deposed the fact that in the first part of the day, he himself, the deceased, PW-1 and PW-2 were travelling together. He further deposed during cross examination that very often he used to visit the residence of the deceased and used to drink wine there. He deposed that it is not correct that while he was quarreling with PW-2, the deceased came out and chased him and while fighting with him, deceased fell into the drain and died. He further deposed during cross examination that very often he used to visit the residence of the deceased and used to drink wine there. He deposed that it is not correct that while he was quarreling with PW-2, the deceased came out and chased him and while fighting with him, deceased fell into the drain and died. He admitted the suggestion of the prosecution that he did not accompany the injured victim to the R. K. Mission, Hospital at Itanagar. 5. The decision of the learned Trial Court:- Based on the aforesaid evidence brought on record by the Prosecution side, the learned trial Court had convicted the appellant under Section 304-II IPC and sentenced him to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 20,000/- and in default to undergo R.I. for six months, though the appellant was charged under Section 302 of the IPC. 6. The argument of the learned counsel for the appellant:- I. The learned counsel for the appellant Mr. G. Tarak, argues that the learned Court below ought to have considered the deposition of the three vital witnesses i.e. PW-5, PW-11 and PW-6, who reached the place of occurrence at the earliest point of time and deposed that PW-1 and PW-2 informed them that deceased got injured by falling into the drain, while chasing the appellant. These two witnesses i.e. PW-1 and PW-2 not disclosing at first point of time that appellant accused hit the deceased, itself creates a doubt on the truthfulness of the deposition of PW-1 and PW-2 inasmuch as the PW-11, deposed that they saw two persons chasing one another but could not identify due to darkness. Therefore, a doubt has been created whether the deceased died and got injured in his spleen by falling or was hit by the accused and therefore, in view of such doubt, the accused is entitled for acquittal. II. The learned counsel for the appellant further submits that depositions of PW-1 and PW-2 are full of contradictions. Therefore, a doubt has been created whether the deceased died and got injured in his spleen by falling or was hit by the accused and therefore, in view of such doubt, the accused is entitled for acquittal. II. The learned counsel for the appellant further submits that depositions of PW-1 and PW-2 are full of contradictions. The PW-1 deposed that PW-2 was shouting for help and when she came out, the PW-1 was pointing out at the deceased husband and that he has fallen in the drain and she saw her husband lying on the drain whereas, the PW-2, had deposed that her husband asked her to go inside the room and while she was going inside, she saw the quarrel between her deceased husband and the accused. Therefore such contradicting statement itself creates a doubt upon the role of the accused and therefore, the accused is entitled for benefit of doubt, submits the learned counsel for the appellant. III. The learned counsel for the appellant further contends that the entire conviction is based on sole eye witness of the PW-2 and her deposition being full of contradiction, the accused ought not to have been convicted inasmuch as the sole eye witness is the interested witness, being the wife of the deceased. In support of such contention, Mr. Tarak, relies on the judgment of the Hon’ble Apex Court in the case of Anil Phukan –Vs- State of Assam reported in 1993 3 SCC 282 . IV. The learned counsel for the appellant further contends that there was delay in filing the F.I.R. and the F.I.R. was lodged on the next day only. The incident occurred in the night and the F.I.R. was lodged on the next day therefore, such delay is fatal inasmuch as there is only one eye witness. Therefore, the appellant ought not to have been convicted by the learned court below. In support of such submission, Mr. Tarak relies on the judgment of the Hon’ble Apex Court in the case of Sankar Lal –VS- State of Rajasthan, reported in 2004 10 SCC 462. 7. Argument of the learned Additional Public Prosecutor for the prosecution:- I. Per contra, Ms. Jini, learned Additional Public Prosecutor submits that PW-2 is the star and starling witness, who in no ambiguity depicted and deposed how the accused inflicted the fatal blow inasmuch as the post mortem report clearly corroborated such evidence. 7. Argument of the learned Additional Public Prosecutor for the prosecution:- I. Per contra, Ms. Jini, learned Additional Public Prosecutor submits that PW-2 is the star and starling witness, who in no ambiguity depicted and deposed how the accused inflicted the fatal blow inasmuch as the post mortem report clearly corroborated such evidence. The statement of the accused/appellant recorded under Section 313 of the Cr.P.C. also clearly establishes that the accused was present on the place of occurrence, there was quarrel between the parties and that the accused in his evidence admitted that he had not accompanied the injured to the R.K. Mission Hospital at Itanagar, though he claims to be the regular visitor and the partner of the deceased. Thus having regard to his conduct along with the clinching evidence of PW-1 and PW-2, corroborated by the Doctor’s evidence, the learned trial Court below has rightly convicted the accused and by taking a lenient view only a sentence of three years was inflicted under Section 304-II of the IPC, whereas the charge was framed under Section 302 of the IPC, submits the learned Additional PP. Therefore, such conviction shall not be inferred with by the appellate Court, conclude Ms. Jini, learned Addl. P.P. 8. Determination:- I. This Court has considered the submissions advanced by the learned counsel for the contesting parties, perused the evidence on record. II. In the present case in hand, it is proved beyond doubt that incident took place on 24.02.2015 at around 10:30 PM near the house of the informant, that the accused was present at the place of occurrence that there were quarrel between PW-1, PW-2 and the accused. It is also established beyond doubt that the injury of the deceased was caused by blunt weapon, resulting rupture of the spleen from the post mortem report i.e. Exhibit-3 and from the evidence of the Doctor. III. The deposition of witnesses i.e. PW-1, PW-2 and DW-1/Accused, firmly establishes that a quarrel had taken place between the accused, PW-2 and the deceased, more particularly the deceased, PW-2 and accused/ appellant No. 1 regarding deceased drinking with accused and accused beating PW-2. From the aforesaid PWs, it is also established that even immediate prior to the incident, there were quarrel between the appellant and victim. IV. From the aforesaid PWs, it is also established that even immediate prior to the incident, there were quarrel between the appellant and victim. IV. There are clinching evidences from the eye witness i.e. PW-2 that the accused inflicted the fatal blow in the abdomen of the deceased victim and the same has been proved beyond reasonable doubt. The deposition of PW-2 remained unshaken. She clearly depicted how the blow was inflicted with the stone. During cross-examination by defence she reaffirmed that the accused was standing with a stone and that the accused hit the deceased in the abdomen with the stone and pushed down him. Thus her evidence is of starling quality. The discrepancies sought to be brought in by the learned counsel Mr. Tarak is minor discrepancies, which is not having any impact upon the quality of evidence of the PW-2. Her evidence is also corroborated by the Doctor i.e. PW-12. The weapon used in the commission of the offence was also duly seized and was proved by the seizure witness i.e. PW-13 and PW-14. They have identified the weapon in the Court to be the same weapon seized from the place of occurrence with blood stain. V. Non discloser of the factum of attack immediately to PW-5, PW-6 and PW-11 is not a vital defect to vitiate the prosecution story in view of the fact that such fact was disclosed in the F.I.R., which was lodged on the next morning itself. The same was also disclosed before the I.O. on the next morning itself and the PW-1 & PW-2 remained firm on that aspect inasmuch as immediately after the incident, the accused was alive and the natural object at that point of time for PW-1 and PW-2 were to save the injured and to take him to Hospital. PW-2 during cross-examination reaffirm that she informed the PW-5, PW-6 and PW-11, regarding the assault by the accused. VI. The defence story that the deceased got injured by falling has also been disproved from the evidence of PW-2 and the Doctor. The independent witness i.e. PW-5 deposed that the victim was lying facing the sky and the Doctor deposed that there was no injury in the forehead, which negate falling down and getting the spleen ruptured. VI. The defence story that the deceased got injured by falling has also been disproved from the evidence of PW-2 and the Doctor. The independent witness i.e. PW-5 deposed that the victim was lying facing the sky and the Doctor deposed that there was no injury in the forehead, which negate falling down and getting the spleen ruptured. From the aforesaid, it is clear that it is the accused, none other, who inflicted the fatal blow to the deceased with the help of the stone. VII. Though this Court has held as above, it has also found, as discussed herein above, that there are sufficient evidences available on record to show that immediately before the occurrence, there was a quarrel between the accused/ appellant, deceased and PW-2. There are sufficient materials on record which shows that the PW-2 had sufficiently provoked the accused person. The evidence of PW- 1, PW-2, and statement of the accused recorded under Section 313 Cr.P.C., clearly testifies that a quarrel took place between the parties. The deposition of PW-2 clearly depicts that the deceased had chased the accused/appellant and also went near him. The PW-1 also deposed that she also saw the quarrel between the accused and PW-2, before the actual occurrence. VIII. From the above evidences, it is the considered opinion of the Court that it is clear that there was grave and sudden provocation from the deceased and PW-2 upon the appellant, immediately before the occurrence and therefore, it cannot be nullified that the appellant has acted under a heat of passion having lost of self control. IX. The offence of culpable homicide amounting to murder is explained under Section 300 of the IPC. The Exception 4 to Section 300 of the IPC provides that the culpable homicide which would not amount to murder. The Exception 4 is quoted herein below:- “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. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.” X. XI. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.” X. XI. After consideration of the materials available on record and the provisions of Section 300 of IPC more particularly the Exception 4, this Court is of the opinion that the present case would come under the Exception 4. XII. Based on the materials available on record, it leads to an unhesitant conclusion that in the case in hand, the accused acted without premeditation. The deceased can be said to be an aggressor in the case as materials are available beyond doubt that the deceased chased the accused/appellant near the drain situated in the residence of the deceased and the actual occurrence took place therein. The fatal blow is also a single blow. Therefore, in the totality of evidences, this Court is of the considered opinion that being provoked by the deceased, the accused/ appellant had acted in the heat of a moment having lost his self control. This Court also considered the fact that the accused came back to see what happened to the deceased and helped the other to take the deceased to Hospital. XIII. From the materials, this Court is of the considered opinion that though it cannot be said that the accused/ appellant did not have knowledge that it would cause death to the deceased in the manner he had used the weapon, however, the accused/ appellant did not had the intent to cause death to the deceased. XIV. For the reasons stated herein above, this Court is of the considered opinion that the case of the accused/ appellant would come under Section 304, Pt-II of IPC. This Court accordingly uphold the conviction of the appellant under Section 304-II of the IPC. XV. Accordingly, this Criminal Appeal is dismissed and the accused/appellant is hereby directed to surrender before the learned Sessions Judge, Yupia and to undergo the sentence. XVI. Return the LCR.