JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal preferred under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 10-9-2013 passed in Sessions Trial No.458/2011 by the Sessions Judge, Ambikapur, District Surguja, by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and further sentenced to pay a fine of Rs.1,000/- and to further undergo simple imprisonment for six months for want of failure to pay the fine amount. 2. Case of the prosecution, in brief, is that on 21-8-2011 at about 2.30 p.m. at Village Chitarpur, Bagichapara, Police Station Dhourpur, District Surguja, the appellant herein assaulted the deceased namely, Jagdish and thereby caused his death by wooden plank ( kutela). It is admitted position on record that Naresh (PW-5) and the deceased were cousins. On 21-8-2011, deceased Jagdish had visited the house of the appellant herein demanding his coin which he had lost and he has reason to believe that it has been obtained by the daughter of the appellant namely Pancho Bai which the appellant refused and then some conversation took place and all of a sudden, the appellant assaulted the deceased by wooden plank by which the deceased suffered injuries on head and became unconscious. Thereafter, the deceased was taken to hospital where he remained hospitalized for two days and during treatment, he died. Further case of the prosecution, in brief, is that morgue intimation was registered at the instance of the District Hospital, Ambikapur on 27-8-2011 vide Ex.P-4 and deceased Jagdish was admitted to the District Hospital where he succumbed to the injuries sustained by him and died. FIR was registered vide Ex.P-6 and thereafter, inquest proceeding was conducted and body was sent for post-mortem and post-mortem was conducted by Dr. Sanjay Singh (PW-3) who submitted his report vide Ex.P-5A. Upon the disclosure statement of the appellant Ex.P-12, wooden plank ( kutela) was seized vide Ex.P-13 and same was sent for chemical examination and the chemical examination report is Ex.P-19 according to which blood was found on the said wooden plank. 3. Statements of the witnesses were recorded under Section 161 of the CrPC.. Upon the disclosure statement of the appellant Ex.P-12, wooden plank ( kutela) was seized vide Ex.P-13 and same was sent for chemical examination and the chemical examination report is Ex.P-19 according to which blood was found on the said wooden plank. 3. Statements of the witnesses were recorded under Section 161 of the CrPC.. Thereafter, after completion of investigation, the appellant was charge-sheeted before the jurisdictional criminal court which was committed to the Court of Sessions for hearing and disposal in accordance with law. 4. The trial Court has framed charges under Sections 294, 506 Part-II and 302 of the IPC against the appellant and proceeded on trial. The accused / appellant abjured guilt and entered into trial. 5. The prosecution in order to bring home the offence examined as many as 10 witnesses and brought on record 20 documents Exs.P-1 to P-20 to prove its case. However, the defence examined none, but proved the documents Exs.D-1 & D-2 i.e. the statements of Smt. Sukanti Bai and Naresh Ram recorded under Section 161 of the CrPC. Statement of the accused / appellant was recorded under Section 313 of the CrPC in which he abjured the guilt and pleaded innocence and false implication. 6. The trial Court after completion of trial and after appreciating oral and documentary evidence finding the death of deceased Jagdish to be homicidal in nature proceeded to convict the appellant for offence under Section 302 of the IPC and sentenced him in the manner as mentioned in the opening paragraph of this judgment which has been called in question in this appeal preferred under Section 374(2) of the CrPC. 7. Miss Sofia Khan, learned counsel appearing for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of the IPC as there is no sufficient evidence available on record to convict him for offence under Section 302 of the IPC and looking to only two injuries sustained by the deceased on vital part of the body which were said to have been caused by the appellant, the deceased died after two days of the incident for want of treatment and for want of expert neurosurgeon in the Ambikapur Hospital. As such, it is evident that the appellant had no intention to cause the death of the deceased, at the best, the appellant can be convicted for offence under Section 304 Part-II of the IPC and he is in jail since 28-8-2011, thereby he has served more than ten years of jail sentence. Therefore, the appellant be sentenced to the period already undergone by him and he be released from jail. 8. Per contra, Mr. Sudeep Verma, learned Deputy Government Advocate appearing for the State / respondent, would submit that the prosecution has brought sufficient legal evidence in shape of oral, medical and documentary evidence to convict the appellant under Section 302 of the IPC, as such, the trial Court has rightly convicted him for offence under Section 302 of the IPC. It is not the case where the appellant’s conviction under Section 302 of the IPC can be converted to one under Section 304 Part-II of the IPC, as the appellant with intention to cause death of the deceased has caused injuries on the vital part of the body of the deceased as a result of which occipital bone and temporal bone of head were fractured, as such, the instant appeal deserves to be dismissed in toto. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. The first question for consideration would be, whether the death of deceased Jagdish was homicidal in nature? 11. The trial Court after appreciating oral and documentary evidence and considering the nature of injuries which the deceased has received particularly injury on head on which fracture was found in occipital and temporal regions and further considering the statement of Dr. Sanjay Singh (PW-3), came to the conclusion that the death of deceased Jagdish was homicidal in nature. After due consideration, we are inclined to hold that the finding recorded by the learned trial Court holding the death of deceased Jagdish to be homicidal in nature is a finding of fact based on the evidence available on record and we hereby affirm the said finding recorded by the trial Court. 12. Now, the question is, whether the trial Court is justified in holding that it is the appellant who is the author of the crime and he has caused the murder of deceased Jagdish? 13. 12. Now, the question is, whether the trial Court is justified in holding that it is the appellant who is the author of the crime and he has caused the murder of deceased Jagdish? 13. The genesis of the crime is one old coin which was owned by deceased Jagdish and which he is said to have lost in the marriage ceremony of neighbour Solaram’s sister in the courtyard of Solaram. The deceased suspected the said coin to have been received by the appellant’s daughter Pancho Bai. On being demanded by the deceased, Pancho Bai did not give the coin to the deceased and for taking back that coin, the deceased had gone to the house of appellant Premsai on that very day and during conversation, dispute arose on that day which resulted in marpit and then the incident came to be happened in the shape of murder of Jagdish. 14. Sakunti (PW-4), who is wife of Naresh (PW-5), being eyewitness has clearly stated before the Court that on that day she was working in her courtyard grazing the grass and she has seen the incident by which the appellant caused injury to the deceased by wooden plank as a result of which the deceased suffered grievous injury and Naresh Ram (PW-5) lodged report to the police and thereafter, the deceased was taken to the District Hospital where he died after two days of his admission in the hospital. Sakunti (PW-4) has been subjected to lengthy cross-examination on behalf of the defence, but nothing has been elicited to discard her statement, however, it has been stated by Sakunti (PW-4) that relation of the appellant and the deceased was cordial. 15. As such, it has been established by the prosecution based on the testimony of Sakunti (PW-4) that it is the appellant who has caused injuries to the deceased by wooden plank by which the deceased suffered grievous injuries on head and thereafter succumbed to death after being admitted in the hospital for two days. Upon the memorandum statement of the appellant Ex.P-12, wooden plank stained with blood has been recovered vide Ex.P-13 and it has been sent for chemical analysis and chemical analysis report has been filed as Ex.P-19 in which blood has been found on the said wooden plank. Upon the memorandum statement of the appellant Ex.P-12, wooden plank stained with blood has been recovered vide Ex.P-13 and it has been sent for chemical analysis and chemical analysis report has been filed as Ex.P-19 in which blood has been found on the said wooden plank. As such, there is sufficient evidence on record to hold that it is the appellant who has caused injuries to the deceased by wooden plank and by which the deceased suffered injuries and succumbed to death. 16. Now, the question is, whether the offence would fall under Exception 4 to Section 300 of the IPC and whether the appellant is liable to be convicted under Section 304 Part-I or Part-II of the IPC or whether the offence under Section 302 of the IPC is made out as it has been found proved against the appellant by the trial Court? 17. As noticed herein-above, it is quite vivid that the dispute is only with regard to an old coin owned by the deceased – Jagdish, which he lost in the marriage ceremony of his neighbour Solaram’s sister and which is said to have been received by the appellant's daughter Pancho Bai which she refused to give back to deceased Jagdish and which was regularly being demanded unsuccessfully by the deceased. It is also established from the statement of Sakunti (PW-4), paragraphs 9 & 10, that accused / appellant Premsai and deceased Jagdish both were having good relations and they are in talking terms, but the fact remains that coin was not being returned by the appellant to the deceased – Jagdish and on that pretext, the deceased had gone to the house of the appellant on that particular day and during the course of conversation, dispute arose which resulted in assault by each other and the appellant has caused injury to the deceased. As such, there is no premeditation for commission of offence, particularly when the incident occurred in the house of the appellant and it took place in a sudden fight, and the appellant has not taken any undue advantage. 18. The Supreme Court in the matter of Arjun and another v. State of Chhattisgarh, (2017) 3 SCC 247 has elaborately dealt with the issue and observed in paragraphs 20 and 21 as under :- “20. 18. The Supreme Court in the matter of Arjun and another v. State of Chhattisgarh, (2017) 3 SCC 247 has elaborately dealt with the issue and observed in paragraphs 20 and 21 as under :- “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh, (1989) 2 SCC 217 , 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 is it 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. 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 , 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. 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 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 cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”.’” 19. In Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be a case of Section 304 Part-I of the 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 Part-II of the IPC. 20. Reverting to the facts of the present case in the light of the principles of law laid down by their Lordships of the Supreme Court in Arjun (supra), it is quite vivid that except for the missing coin of deceased Jagdish, there was no dispute existing between the appellant and the deceased and on a sudden fight, without any premeditation and in a heat of passion, the offence is said to have been committed by the appellant. Furthermore, Dr. Furthermore, Dr. Sanjay Singh (PW-3) has clearly stated in paragraphs 8 & 14 of his evidence that there was clotting of blood on the head of the deceased and same could have been removed in presence of surgical expert or neurosurgeon through treatment, but in the Ambikapur hospital there was no surgical specialist / expert or neurosurgeon, therefore, clot could not be removed and the patient went into coma and thereafter died. Thus, the possibility of surviving of the appellant was also there as per the statement of Dr. Sanjay Singh (PW-3). As such, there was no intention on the part of the appellant to cause the death of Jagdish, but from the injuries that have been caused by the appellant on the head of the deceased by which there was clotting of blood inside the brain and fracture of occipital and temporal bones on the head of the deceased, the appellant must have had the knowledge that his act is likely to cause death of the deceased, as he had assaulted the deceased on his head. Therefore, we are of the considered opinion that conviction of the appellant herein under Section 302 of the IPC can be converted to Section 304 Part-II of the IPC. 21. Accordingly, conviction of the appellant for offence under Section 302 of the IPC is modified to Section 304 Part-II of the IPC. The appellant is in jail since 28-8-2011, thereby he has completed more than ten years of imprisonment. Jail sentence imposed upon the appellant is modified to that of the period already undergone by him. The appellant be released forthwith, unless required in any other case. 22. The appeal is allowed to the extent indicated herein-above.