JUDGMENT : SACHIN SINGH RAJPUT, J. 1. Assailing the legality, correctness, judicial propriety of the impugned judgment of conviction and sentence dated 22.04.2015 passed in Sessions Trial No. 96/2014, by the learned Additional Sessions Judge, North Bastar Kanker (C.G.) (for short ‘the trial Court’) whereby the appellant has been convicted and sentence for life imprisonment and fine of Rs. 2,000/- and in default of payment of fine additional imprisonment for three months was imposed, the appellant is before this Court in this Criminal Appeal under Section 374(2) of Criminal Procedure Code, 1973 (for short Cr.P.C.). 2. The appellant was convicted for offence punishable under Section 302 of Indian Penal Code, 1860 (for short ‘IPC’) on the allegation of committing murder of his wife Manju Markam at about 11.30 a.m. on 14.06.2014 at village Kodekurse. Facts of the case 3. The prosecution story in brief is that on 14.06.2014, appellant under the influence of liquor demanded money from his wife deceased Manju Markam. When deceased Manju Markam refused to pay the money, the appellant committed murder of the deceased by stabbing with scissors in her stomach which was kept in the home for cutting the cloths and ran away with the scissors. Thereafter, the deceased was admitted in the Christian Hospital, Bathena Dhamtari in seriously injured condition by the family members and during treatment at about 11.30 in the night on 15.06.2014 she died. After her death the Police City Kotwali, Dhamtari registered the merg intimation (Ex.P/9) and the postmortem of the dead body was conducted. On receipt of merg diary from Dhamtari, Police Station Kodekurse registered merg intimation (Ex.P/5) and First Information Report (Ex.P/6). During the investigation the appellant was arrested on 26.06.2014. On completion of the investigation, charge-sheet was filed before the Judicial Magistrate First Class, Bhanupratappur and vide order dated 22.09.2014 the same was committed to the Sessions Court. The appellant was charged as aforesaid. He abjured the guilt and claimed to be tried. Prosecution in order to prove the case examined 13 witnesses and exhibited 16 documents. Statement of accused under Section 313 of Cr.P.C. was recorded. The appellant examined (DW-1) Sagvanteen Bai in his defence. The trial Court after due appreciation of the evidence and material placed before it, convicted and sentenced the appellant as stated above vide impugned judgment dated 22.04.2015 which is challenged before this Court. Submissions on behalf of the appellant 4. Statement of accused under Section 313 of Cr.P.C. was recorded. The appellant examined (DW-1) Sagvanteen Bai in his defence. The trial Court after due appreciation of the evidence and material placed before it, convicted and sentenced the appellant as stated above vide impugned judgment dated 22.04.2015 which is challenged before this Court. Submissions on behalf of the appellant 4. Counsel for the appellant made the following submissions: (a) The impugned judgment of conviction and award of sentence is completely erroneous, contrary to the evidence and material available on record is bad in law. The trial Court did not appreciate the evidence and material placed before it to its proper perspective and erroneously passed the impugned judgment of conviction. The trial Court committed an error of law as well as fact in marshaling the evidence brought by the prosecution to sustain the conviction. (b) He submits that the alleged eye-witness does not inspire confidence and she is not reliable witness, therefore, the conviction cannot be sustained on the basis of testimony of the alleged eye-witness. He further submits that the witnesses of oral dying declaration made by the deceased are not trustworthy and it cannot form the basis of conviction of the appellant, therefore, the impugned judgment is liable to be set-aside. (c) He further submits that memorandum of the appellant and the seizure of the scissors is not duly proved, therefore, it cannot be said that the appellant has committed the offence. (d) Lastly, he submitted that if the alleged offence was committed by the appellant there was no premeditation and intention on the Part-of the appellant to commit the murder of his wife. The incident occurred on a small issue of nonpayment of money by the deceased and therefore the conviction of the appellant may be altered into Section 304 Part-I or Part-II of the IPC as the case may be. Submissions on behalf of the respondent state 5. On the other hand counsel for the State made the following submissions: (a) The learned trial Court was absolutely justified in holding the appellant guilty of the above stated offence as it has properly and meticulously examined the evidences and material placed before it and gave a categorical finding that it is the appellant who has committed the aforesaid offence and therefore the finding of conviction and award of sentence do not require any interference by this Court. (b) He further submits that the eye-witness has categorically proved the case of the prosecution beyond reasonable doubt and the testimony of eye-witness inspires confidence and the judgment of conviction can be sustained on the basis of testimony of the eye-witness. (c) He also submits that the deceased was admitted in the hospital and where she had made oral dying declaration to the witnesses who have categorically stated that it is the appellant who has caused injuries to the deceased. The memorandum and seizure have been duly proved and therefore, the conviction of the appellant is proper and does not require any interference. (d) Lastly, he submits that looking to the injury sustained by the deceased; it is not a case for conversion from Section 302 IPC to Section 304 Part-I or Part-II of the IPC. In sum and substance he submits that the appeal of the appellant has no merits and is liable to be rejected. Analysis and Conclusions 6. We have heard learned counsel for the Parties, considered their rival contentions and perused the record meticulously with utmost circumspection. 7. The first question for consideration is that whether the death of the deceased Manju Markam was homicidal in nature or not. The finding of the homicidal death has been recorded by the learned trial court on the basis of the evidence available Part-icularly the statements of Dr. (Smt.) Madhuri Wankhede (PW-11) and Dr. U.L. Kaushik (PW-13). Dr. (Smt.) Madhuri Wankhede (PW-11) and Dr. The finding of the homicidal death has been recorded by the learned trial court on the basis of the evidence available Part-icularly the statements of Dr. (Smt.) Madhuri Wankhede (PW-11) and Dr. U.L. Kaushik (PW-13). Dr. (Smt.) Madhuri Wankhede (PW-11) and Dr. U.L. Kaushik (PW-13) have conducted the postmortem of the dead body of the deceased and gave following findings with injuries sustained by the deceased: ^^Ckkg~; ijh{k.k ¼1½ e`rd dk 'kjhj vdMk gqvk Fkk [kwu dh deh dks nf'kZr dj jgk FkkA ¼2½ nksuks vka[kks dh iqrfy;ka QSyh gqbZ Fkh rFkk [kwu dh deh nf'kZr gks jgh FkhA ¼3½ nksuks vka[ks can voLFkk esa FkhA ukd ds nksuksa Nsn [kqys gq;s Fks rFkk eqag gYdk [kqyk gqvk FkkA ¼4½ 'kjhj dk Nkrh ls ysdj isV rd dk Hkkx nf'kZr dj jgk Fkk rFkk isV Qqyk gqvk FkkA ¼5½ Ckkg~; tuukax lkekU; voLFkk esa FksA ¼6½ Nkrh ds ikl ds ,fj;k esa Vkadk yxk gqvk ?kko Fkk tks fd dkys jax ds /kkxs ls vkSj rhu vyx&vyx txgksa ij lhyk x;k FkkA igys lhys gq;s ?kko dh yackbZ 4-5 lsŒehŒ FkhA rFkk mlds uhps ck;s rjQ ds van:uh Hkkx esa esesjhykbZUl esa yxHkx 2-5 lsŒehŒ yackbZ dk lhyk gqvk ?kko Fkk tks nks FksA ¼7½ lhys gq;s ?kko dks [kksyus ds i'pkr~ isjhVksfu;e rd QSyk gqvk RkFkk isjhVksfu;e dSfCkVh [kwu ls Hkjk gqvk FkkA vkUrfjd ijh{k.k ¼1½ Nkrh ds cka;h rjQ tgka lhyk gqvk ?kko Fkk ogka Nkrh dh lkroha vkSj vkBohs ilyh dh gM~Mh VwVh gqbZ Fkh tks fd cgqr gh /kkjnkj o frjNk rjhds ls dVk gqvk FkkA Nkrh dh LVjue esa Hkh 2 ls 3 lsŒehŒ dk dVk gqvk ?kko Fkk LVjue ds ihNs [kwu dk FkDdk tek gqvk FkkA ¼2½ g`n; ds nksuksa Hkkx esa [kwu ugha FkkA ¼3½ QsQMk 'okl uyh] xqnkZ] Iyhgk lc [kwu dh deh dks nf'kZr dj jgs FksA ¼4½ ;d`r ds nkfgus lkbZM ds fupys fgLLkk esa dVk gqvk ?kko Fkk tks yxHkx 4-5 xq.kk 0-5 xq.kk 0-5 lsŒehŒ FkkA rFkk ogha nwljk ?kko igys ?kko ls 1 lsŒehŒ ds yxHkx 2-5 xq.kk 0-5 xq.kk 0-25 lsŒehŒ FkkA og Hkh rst dVk gqvk ?kko FkkA ¼5½ [kkus dh FkSyh ds ihNs Hkkx esa Hkh dVk gqvk ?kko Fkk ftlls [kkus dh v/kips va'k ckgj fudy jgs FksA ¼6½ is'kkc dh FkSyh [kkyh FkhA ¼7½ efLr"d ds van:uh Hkkx [kwu dh deh dks nf'kZr dj jgk FkkA** 8. Dr. Dr. U.L. Kaushik (PW-13) has categorically stated in his statement that the cause of death was homicidal in nature and proved the postmortem (Ex.P/14). From the evidence available on record Part-icularly statement of Dr. U.L. Kaushik (PW-13) the finding recorded by learned trial court of homicidal death of the deceased cannot be said to be perverse and illegal as it is based on proper appreciation of evidence, therefore, we do not have any hesitation and holding that the death of the deceased was homicidal in nature and the prosecution was able to prove this fact beyond reasonable doubt. Now the next question for consideration whether the present appellant is the author of the crime or not? 9. The prosecution brought its case against the present appellant on the basis of eye-witness as well as the oral dying declaration made by the deceased and recovery of the scissors at the instance of present appellant. We have carefully examined the testimony of Kumari Aruna (PW-5), who claims to be an eye-witness. In her statement she has very categorically stated that on the date of incident the appellant under the influence of liquor was quarreling with his wife (deceased) Manju Markam. Thereafter, she and the deceased Manju Markam went to a shop to bring the box and after coming back they were putting pickle in the box, at that time appellant assaulted her by throwing a brick. She further goes on to state that she and deceased went inside the room and deceased told that appellant would do something, hence she (deceased) should be locked in the room. At that time the appellant came with scissors and tried to assault and when she and deceased were trying to come out the house, the appellant pushed her and stabbed the deceased on her chest near liver. During the cross-examination this witness remained firm on her testimony made in the examination-in-chief. However, she stated that the police recorded her statement on 25.06.2014 whereas the incident occurred on 14.06.2014. She further states that the appellant quarreled under the state of intoxication of liquor. She further goes on to say that the quarrel took place on account of refusing to pay money by deceased. However, she categorically denied that she has not witnessed the quarrel. She also denied that she has given a false statement on saying of the police after 10-12 days. She further goes on to say that the quarrel took place on account of refusing to pay money by deceased. However, she categorically denied that she has not witnessed the quarrel. She also denied that she has given a false statement on saying of the police after 10-12 days. The careful scrutiny of this witness clearly goes to show that she is a natural eye-witness and from her statement nothing incriminating is brought on record to doubt her testimony. Therefore, the testimony of this eye-witness inspires confidence; hence the submission of the learned counsel for the appellant in this regard is hereby rejected. 10. The second submission of the appellant is that the oral dying declaration given by the deceased to the witnesses cannot be relied upon. In this regard we have perused the statement of Sukoteen (PW-1), who happens to be mother-in-law of the appellant. In her examination-in-chief she categorically states that when she went to the hospital to see her daughter (deceased), her daughter clearly told her that the appellant stabbed her with scissors. Nothing incriminating in the cross-examination is brought to disbelieve her statement. Similar statements have been given by Ramuram Mandavi (PW-2) as well as by Mane Singh (PW-3), however, in the cross-examination of these witnesses they have stated that the condition of the deceased was serious and she was not in a condition to talk. But cumulative examination of these witnesses, their presence in the hospital cannot be said to be unnatural as they are relatives of the deceased and their testimonies cannot be discarded as in a common parlance when a person visits an injured he/she would ask for the cause of the injuries. Therefore, the oral dying declaration given by the deceased before these witnesses Sukoteen (PW-1), Ramuram Mandavi (PW-2) and Mane Singh (PW-3) cannot be said to be an afterthought or tutored. This Court does not find it to be a case of false implication, particularly when the eye-witness has deposed against the appellant. 11. Now we shall consider the next submission of the appellant that the seizure of the scissors was not proved on the memorandum of the appellant. The prosecution tried to prove the recovery of scissor (Ex.P/3) on the basis of memorandum which is marked as (Ex.P/2). In order to prove this prosecution has examined Prabhu Ram (PW-7) and Padum Singh Rawate (PW-8). The prosecution tried to prove the recovery of scissor (Ex.P/3) on the basis of memorandum which is marked as (Ex.P/2). In order to prove this prosecution has examined Prabhu Ram (PW-7) and Padum Singh Rawate (PW-8). From perusal of the statement of Prabhu Ram (PW-7) and Padum Singh Rawate (PW-8) it is evident that they were declared hostile and did not support the case of the prosecution. The trial Court has discussed the statement of these witnesses, and on the basis of statement of Investigating Officer Jeevan Kumar Jangde (PW-9) and admission of signatures of Prabhu Ram (PW-7) and Padum Singh Rawate (PW-8) on (Ex.P/2) and (Ex.P/3) disagreed with the submission that memorandum and seizure of scissor is not proved. Even assuming that the memorandum (Ex.P/2) and seizure (Ex.P/3) has not been proved beyond a reasonable doubt, in the opinion of this Court it would not make much difference to the case of the prosecution as the evidence of eye-witness and evidence of oral dying declaration is available on record and found trustworthy. Hence, even accepting the submission of the counsel for the appellant that recovery of murdered weapon scissors has not been proved beyond reasonable doubt, it would not be fatal to discard the entire prosecution case. Please see Mrityunjoy Biswas vs. Pranab @ Kutti Biswas and Another, (2013) 12 SCC 796 . 12. In light of the above discussion, this Court is of the considered opinion that the prosecution was able to prove the guilt of the appellant by cogent and prudent evidence and the finding recorded on the basis of eye-witness and witnesses of oral dying declaration cannot be said to be perverse without any substantial evidence. 13. Now we shall consider the next submission of the appellant with regard to converting the offence of Section 302 of IPC to that of Section 304 Part-I or 304 Part-II as the case may be. 14. Hon’ble Supreme Court in the matter of State of Andhra Pradesh vs. Rayavarapu Punnayya, 1976 (4) SCC 382 has considered the difference between the two provisions i.e. section 299 and 300 of the IPC. The Supreme Court pertinently pointed out that: “12. In the scheme of the Penal Code “culpable homicide” is genus and “murder” its specie. All “murder” is “culpable homicide” but not vice-versa. Speaking generally “culpable homicide” sans “special characteristics of murder” is “culpable homicide not amounting to. The Supreme Court pertinently pointed out that: “12. In the scheme of the Penal Code “culpable homicide” is genus and “murder” its specie. All “murder” is “culpable homicide” but not vice-versa. Speaking generally “culpable homicide” sans “special characteristics of murder” is “culpable homicide not amounting to. murder.” For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in s. 300 as “murder.” The second may be termed as “culpable homicide of the second degree.” This is punishable under the 1st part of s. 304. Then, there is “culpable homicide of the third degree.” This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 13. The academic distinction between “murder” and “culpable homicide not amounting to murder” has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of Sections 299 and 300.” 15. The considerations that whether an act is punishable with murder, or culpable homicide not amounting to murder, were stated in Pulicherla Nagaraju @ Nagaraja Reddy vs. State of Andhra Pradesh, (2006) 11 SCC 444 as under: “29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part-I or 304 Part-II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part-I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used. (ii) whether the weapon was carried by the accused or was picked up from the spot. (iii) whether the blow is aimed at a vital part of the body. (iv) the amount of force employed in causing injury. (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight. (vi) whether the incident occurs by chance or whether there was any premeditation. (vii) whether there was any prior enmity or whether the deceased was a stranger. (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation. (ix) whether it was in the heat of passion. (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner. (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.” 16. The Hon’ble Supreme Court in a judgment reported in www.livelaw.in in case of Mohammad Rafiq @ Kallu vs. State of Madhya Pradesh, LL 2021 SC 461 in which the above decisions were considered observed as under: “11. Be that as it may.” 16. The Hon’ble Supreme Court in a judgment reported in www.livelaw.in in case of Mohammad Rafiq @ Kallu vs. State of Madhya Pradesh, LL 2021 SC 461 in which the above decisions were considered observed as under: “11. The question of whether in a given case, a homicide is murder, punishable under Section 302 IPC, or culpable homicide, of either description, punishable under Section 304 IPC has engaged the attention of courts in this country for over one and a half century, since the enactment of the IPC; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this court. The use of the term “likely” in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.” 17. The Supreme Court in the matter of Sukhbir Singh vs. State of Haryana, (2002) 3 SCC 327 has observed as under: “21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part-I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part-I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 18. The Supreme Court in the matter of Gurmukh Singh vs. State of Haryana, (2009) 15 SCC 635 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part-II of IPC, which state as under: “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (I) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 19. Likewise, in the matter of State vs. Sanjeev Nanda, (2002) 8 SCC 450 their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part-II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death. 20. Further, the Supreme Court in the matter of Arjun vs. State of Chhattisgarh, (2017) 3 SCC 247 has elaborately and dealt with the issue and observed in paragraphs 20 and 21, which reads 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 vs. 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 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. 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 vs. 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 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.” 21. In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of 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 IPC. 22. In the matter of Joseph vs. State of Kerala, 1995 SCC (Cri) 165 wherein the accused inflicted two lathi blows on the head of the deceased which proved fatal, their lordships of the Supreme Court held that it cannot be said that accused intended to cause such bodily injury which was sufficient in the ordinary course of nature to cause death, as such, accused can be attributed with knowledge that by inflicting such injury he was likely to cause death and further held that the offence would fall under Section 304 Part-II and not Section 302 of the IPC. 23. In light of the above authoritative pronouncements of the Hon’ble Supreme Court. Now we shall examine the evidence in this regard for conversion of the conviction of the appellant from Section 302 of IPC to Section 304 Part-I or 304 Part-II IPC. From the statement of Ku. Aruna (PW-5) eye-witness, it is evident that the appellant was under influence of liquor on the date of incident and was quarreling with the deceased. It has also been stated by this witness that the appellant stabbed with the scissors on the chest near the liver of the deceased. Statement of this witness further goes to show that the appellant was asking money from the deceased for drinking liquor and when she refused, he started quarrel. It has also been stated by this witness that the appellant stabbed with the scissors on the chest near the liver of the deceased. Statement of this witness further goes to show that the appellant was asking money from the deceased for drinking liquor and when she refused, he started quarrel. It has also come in the statement of this witness that the appellant was under highly influence of liquor and he was not in his sense and he did not know whatever happens being under the influence of liquor. From the perusal of the statement of this witness it is apparent that there was no premeditation on the Part-of the appellant and it happened in a sudden fight and heat of passion upon a sudden quarrel on account of deceased refused to pay money to the appellant for liquor and it appears that the appellant has not taken any undue advantage. From the evidence so brought before the Court and from the injuries sustained by the deceased it is evident that though there was no intention to commit culpable homicide, however, in view of the exception 4 of Section 300 IPC, in the opinion of this Court the offence committed by the appellant would fall within the definition of Section 299 IPC i.e. culpable homicide not amounting to murder punishable under Section 304 Part-II of IPC. 24. In view of the above discussion, we hereby seta-side the conviction of the appellant under Section 302 of IPC and convict him for an offence under Section 304 Part-II. It is stated at the Bar that the appellant is in jail since 23.06.2014 and has completed more than 8 years of imprisonment. Considering the facts situation of the case and no adverse report has been brought to the notice of the court with regard to the behavior of the appellant, we hereby sentence the appellant to the period already undergone/served by him. The appellant be released forthwith if not needed in any other case. 25. The appeal thus allowed in part as stated above.