JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 15/06/2012 passed by learned Sessions Judge, Raigarh in Sessions Trial No. 118/2010 whereby the appellant/accused has been convicted for offence punishable under Section 302 of IPC and has been sentenced to life imprisonment and fine of Rs. 5,000/­ and in default of payment of fine additional R.I. for one year. 2. The case of the prosecution, in brief, is that on 10/08/2010 at about 01:00 PM, the appellant murdered one Dileshwar Rathiya in his own house with the help of axe by assaulting him and causing grievous injuries and thereby, committed the aforesaid offence. 3. Further case of the prosecution, in brief, is that on 10/08/2010 (on the day of Hareli festival) at about 01:00 PM, Sukhlal (P.W.­2) and Indal (P.W.­4) were already in the house of the appellant when they also called Dileshwar Rathiya, who also came to the house of the appellant, after having lunch at his home wearing a lungi. When he came to the house of the appellant, he was firstly served liqour and thereafter, the appellant went inside on the pretext of bringing some snacks, but he returned with an axe and assaulted Dileshwar Rathiya over his chest on account of which he succumbed to death and the appellant, after leaving the said axe in the courtyard of his house absconded along with his family from the spot. Police received the said information through phone call and after reaching the spot, Punimati (P.W.­1), wife of deceased Dileshwar Rathiya, narrated the incident and on that basis, dehati merg intimation was registered (Ex. P/14) and dehati First Information Report (Ex. P/13) was lodged against the appellant herein. Thereafter, on the basis of dehati merg intimation and dehati First Information Report, numberi merg intimation was registered (Ex. P/18) and First Information Report (Ex. P/17) was lodged against the appellant for offence punishable under Section 302 of IPC. After summoning the witnesses, inquest report (Ex. P/1) was prepared and the body of deceased Dileshwar Rathiya was sent for postmortem to District Hospital, Raigarh wherein Dr. Prakash Kumar Chitwani (P.W.­7) conducted the postmortem and submitted his report (Ex. P/7). From the spot, blood­stained as well as plain soil and blood­stained axe were seized. After summoning the witnesses, inquest report (Ex. P/1) was prepared and the body of deceased Dileshwar Rathiya was sent for postmortem to District Hospital, Raigarh wherein Dr. Prakash Kumar Chitwani (P.W.­7) conducted the postmortem and submitted his report (Ex. P/7). From the spot, blood­stained as well as plain soil and blood­stained axe were seized. Bloodstained gamcha was also seized and it was sent for chemical examination (but no report has been brought on record). Statements of the witnesses were recorded and the appellant was arrested. After due investigation, the appellant/accused was charge­sheeted for offence punishable under Section 302 of IPC which was registered and committed to the Court of Sessions, Raigarh for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 10 witnesses and brought into record 19 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt, and he exhibited four documents in support of his case. 5. Learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellant/accused for offence punishable under Section 302 of IPC on the basis of testimonies of Sukhlal (P.W.­2) and Indal (P.W.­4) and sentenced the appellant/accused for the aforesaid period against which this appeal has been preferred by him. 6. Mr. Vikas Kumar Pandey, learned counsel for the appellant/accused, would make the following submissions :­ (i) Indal (P.W.­4), who is said to be eyewitness, has not supported the case of the prosecution and he has clearly stated in paragraph 4 of his statement that he has not seen the appellant/accused assaulting deceased Dileshwar Rathiya and therefore, learned trial Court is absolutely unjustified in convicting the appellant/accused for the aforesaid offence on the basis of the testimony of Sukhlal (P.W.­2) alone. (ii) The blood­stained axe was seized from the courtyard of the appellant/accused vide Ex. P/4, but no FSL report has been brought on record by the prosecution to prove that the murder of deceased Dileshwar Rathiya has indeed been committed by the appellant herein. (ii) The blood­stained axe was seized from the courtyard of the appellant/accused vide Ex. P/4, but no FSL report has been brought on record by the prosecution to prove that the murder of deceased Dileshwar Rathiya has indeed been committed by the appellant herein. He would alternatively submit that only one axe blow has been caused by the appellant/accused over the chest of the deceased, as such, the present case would be covered with Exception IV of Section 300 of IPC and since the appellant/accused did not have any intention to kill the deceased, the present case would fall within Section 304 Part II of IPC, as such, the appeal be allowed in toto by setting aside the impugned judgment convicting the appellant for offence under Section 302 of IPC. 7. Per contra, Mr. Soumya Rai, learned State counsel, would submit that learned trial Court is absolutely justified in convicting the appellant for offence punishable under Section 302 of IPC, as such, the instant appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection. 9. The first question for consideration is whether the death of deceased Dileshwar Rathiya was homicidal in nature ? 10. Learned trial Court has recorded the finding that the death of deceased Dileshwar Rathiya was indeed homicidal in nature relying upon the medical evidence of postmortem report (Ex. P/7) wherein Dr. Prakash Kumar Chitwani (P.W.­7), who has conducted the postmortem of deceased Dileshwar Rathiya, has opined that cause of death is shock due to huge chopped penetrating wound in the chest of the deceased which led to claricle massive haemorrhage and collection of clot in thoracic cavity leading to shock and death. He has further opined that the death of deceased is homicidal in nature. After going through the record and after hearing learned counsel for the parties particularly taking view of the nature of the injury suffered by the deceased Dileshwar Rathiya, we are inclined to agree with the finding recorded by learned Sessions Judge that the death of deceased Dileshwar Rathiya was homicidal in nature. The said finding is hereby affirmed more so considering that the fact that death of deceased Dileshwar Rathiya is homicidal in nature has not been seriously disputed by learned counsel for the appellant. 11. The said finding is hereby affirmed more so considering that the fact that death of deceased Dileshwar Rathiya is homicidal in nature has not been seriously disputed by learned counsel for the appellant. 11. The next question for consideration is whether the death of deceased Dileshwar Rathiya was caused by the appellant/accused herein ? 12. Sukhlal (P.W.­2) is the eye­witness who was also present at the house of the appellant at the time of the incident along with Indal (P.W.­4) and he has clearly supported the case of the prosecution that he has seen the incident as on the day of Hareli festival (local festival), he, Indal (P.W.­4) and the appellant were already at the house of the appellant and they were under the influence of alcohol. When deceased Dileshwar Rathiya came to the house of the appellant, he was also served liqour and meanwhile, the appellant went inside the house on the pretext of bringing some snacks, but he came back holding an axe and caused one axe blow over the chest of the deceased Dileshwar Rathiya by which he suffered grievous injury and succumbed to death. Sukhlal (P.W.­2) has also been subjected to cross-examination to some extent but he remained consistent with his version that he has seen the appellant/accused assaulting the deceased and nothing has been said to disbelieve the testimony of Sukhlal (P.W.­2). He has further claimed that relations between the appellant and the deceased were cordial, but he has admitted that the appellant as well as the deceased, both were under the influence of alcohol. 13. Indal (P.W.­4) was also present at the house of the appellant along with Sukhlal (P.W.­2), but he has not supported the case of the prosecution. In paragraph 5 of his statement, he has admitted that he has not seen the appellant assaulting the deceased but he has also admitted that when he went in the room where appellant, Sukhlal (P.W.­ 2) and deceased Dileshwar Rathiya were present, he saw the appellant holding the axe in his hands and deceased Dileshwar Rathiya had already suffered grievous injury over his chest. 14. As such, though Indal (P.W.­4) has not fully supported the case of the prosecution, but it is quite established that the appellant assaulted the deceased and caused grievous injury over his chest with an axe on account of which deceased Dileshwar Rathiya succumbed to death. Moreover, Dr. 14. As such, though Indal (P.W.­4) has not fully supported the case of the prosecution, but it is quite established that the appellant assaulted the deceased and caused grievous injury over his chest with an axe on account of which deceased Dileshwar Rathiya succumbed to death. Moreover, Dr. Prakash Kumar Chitwani (P.W.­7), who has conducted postmortem of deceased Dileshwar Rathiya, has also stated in the postmortem report (Ex. P/7) that a choped elepticle incised wound in right clavicle penetrating though thoraic cavity was found on the chest of the deceased and it can be caused by a sharp heavy weapon. Sukhlal (P.W.­2), despite having been cross­examined thoroughly, has remained consistent and maintained that he has seen the appellant assaulting the deceased Dileshwar Rathiya with an axe. Thus, it is established that the death of deceased Dileshwar Rathiya was indeed caused by the appellant/accused herein. 15. Now, coming to the submission made by learned counsel for the appellant that the appellant/accused did not have the intention of causing death of deceased Dileshwar Rathiya, as such, learned trial Court is absolutely unjustified in convicting him for offence punishable under Section 302 of IPC. He has relied upon the decision rendered by the Supreme Court in the matter of Stalin v. State represented by the Inspector of Police, (2020) 9 SCC 524 wherein it has been held that there is no hard­and­fast rule, that in a case of single injury, Section 302 of IPC would not be attracted and it depends upon the facts and circumstances of each case. It has further been held that 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. Paragraph 7.1.2 of the judgment states as under :­ “7.1.2. In Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 , this Court while discussing the ingredients of Exception 4 of Section 300 IPC, held thus : (SCC pp. 327­ 28, para 11) “11. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. 327­ 28, para 11) “11. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) 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 self­control, in case of 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 an equal footing. A “sudden fight” implies mutual provocation and blows on each 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 of 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 sudden fight, (c) without th offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight msut have been with the person killed. To bring a case within Exception 4 all the ingredients 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 had worked themselves into a fury on account of the verbal altercation in the beginning. 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 had 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 rules as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel if 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”.” 16. The question for consideration is whether the appellant/accused is guilty of offence under Section 302 of IPC or his case would fall under any of the Exceptions of Section 300 of IPC ? 17. The Supreme Court in the matter of Arjun v. State of Chhattisgarh, (2017) 3 SCC 147 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :­ “20. To invoke this Exception 4, the requirements that the to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [ (1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :(SCC p. 220, para 7) “7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in Arumugam v. State [ (2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9) “9. …. 18. 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 the Penal Code, 1860. 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 had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or 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 cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 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 cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 18. In the matter of Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be case of Section 304 Part­I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part­II IPC. It has been further held that injuries/incised wound caused on head i.e. right parietal region and right temporal region and also occipital region, of deceased, indicate that appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part­I of IPC. 19. Reverting to the facts of the present case in light of the aforesaid decision rendered by the Supreme Court in Arjun (supra) and particularly considering the fact that a single injury was caused by the appellant to the deceased over his chest and in light of the statement of Sukhlal (P.W.­2) who has seen the incident right from the beginning, it is established on record that on the day of local festival Hariyali, the appellant and two eye­witnesses namely Sukhlal (P.W.­2) and Indal (P.W.­4), all of them were in influence of alcohol and after calling the deceased to the house of the appellant, they served liqour to the deceased as well and thereafter, the appellant went inside the house on the pretext of bringing some snacks but came back holding an axe and caused one axe blow over the chest of the deceased. According to the postmortem report, the following injury was suffered by the deceased :­ “A choped elepticle incised wound interior to middle 1/3 of R clavicle, 4 cm in length, penetrated through thoraic cavity with fracture clavicle in middle 1/3.” As per Exception 4 of Section 300 of 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 or acted in a cruel or unusual manner. In the present case, at the place of the incident i.e. appellant's house, all of the people present i.e. the appellant himself, Sukhlal (P.W.­2) as well as Indal (P.W.­4) were under influence of alcohol and when the appellant came to the house of the appellant, he was also served liqour. Moreover, there was no dispute either civil or criminal pending between the appellant and the deceased as stated by eye­witness Sukhlal (P.W.­2) in his statement before the Court and both had cordial relations. Therefore, considering the facts and circumstances of the present case, culpable homicide cannot be said to murder within the definition of Section 300 of IPC. The facts and circumstances of the case and the manner in which the incident occurred on the day of the local festival (Hariyali), we are of the considered opinion that the appellant's case would not fall within Section 302 of IPC and it is covered with Exception 4 of Section 300 of IPC. 20. The last question for consideration is whether the present case would fall under Part I or Part II of Section 304 of IPC ? 21. Considering the totality of the case and more particularly considering that the appellant caused a single axe blow and inflicted injury on the chest of the appellant, it can be presumed that the appellant knew that causing such an injury was likely to cause death, therefore, the present case would fall within Section 304 Part II of IPC. 22. In result, the conviction of the appellant for offence under Section 302 of IPC is converted to Section 304 Part II of IPC. Since the appellant is in jail since 12/08/2010 (more than 11 years), we hereby award the sentence already undergone. The appellant be released from jail forthwith if not required in any other case. 23. Accordingly, this criminal appeal is allowed to the extent indicated herein­above.