JUDGMENT : Sanjay K. Agrawal, J 1. This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 10.03.2014 passed by the learned Sessions Judge, Durg, District Durg, in Sessions Trial No.218/2013 by which appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of ? 4000/-; in default of payment of fine additional rigorous imprisonment for four months. 2. Case of the prosecution, in short, is that on 30.06.2013 at about 11:00 pm at Rawanbhatha, Supela, Police Station Supela, District Durg, appellant poured kerosene oil on body of his sister-in-law – Jyoti Yadav and set her ablaze by which she suffered burn injury and on 06.07.2013 during treatment, she succumbed to death and thereby committed the offence. 3. Further case of the prosecution is that the deceased – Jyoti Yadav used to stay with her husband – Ratan Yadav (PW-3) and at the same place appellant herein along with her grand-mother – Sukhiya Bai used to stay. It is also the case of the prosecution that on the fateful day in the night at about 11:00 pm the appellant visited the house of the deceased – Jyoti Yadav and her husband – Ratan Yadav (PW-3) and quarreled with them and asked them to vacate the suit house claiming that it is owned by his grand-mother – Sukhiya Bai, which was refuted by Ratan Yadav (PW-3) and deceased – Jyoti Yadav, and then, out of anger and out of provocation the appellant poured kerosene oil on deceased – Jyoti Yadav lying there and set her ablaze by which she suffered burn injury and immediately thereafter, fire was extinguished by Ratan Yadav (PW-3) and she was taken to the Supela Hospital. Dying declaration of the deceased – Jyoti Yadav was recorded on 01.07.2013 by Madhu Harsh, Additional Tehsildar-cum-Executive Magistrate (PW-12) vide Ex.P/20 after having been certified by Dr. Sarita Minz (PW-14) to be in fit state of mind and during treatment she died on 06.07.2013. Dead body was sent for postmortem which was conducted by Dr. Nalin Chadra Rai (PW-6) and as per the postmortem report (Ex.P/8) cause of death is septicemia due to 65% burn injury. 4. Sarita Minz (PW-14) to be in fit state of mind and during treatment she died on 06.07.2013. Dead body was sent for postmortem which was conducted by Dr. Nalin Chadra Rai (PW-6) and as per the postmortem report (Ex.P/8) cause of death is septicemia due to 65% burn injury. 4. After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 5. In order to bring home the offence prosecution has examined as many as 14 witnesses and exhibited 24 documents and defence in support of its case has neither examined any witness nor exhibited any document. 6. The learned trial Court after appreciating the oral and documentary evidence available on record convicted the appellant as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence. 7. Mr. Dhiraj Kumar Wankhede, learned counsel for the appellant, submits that considering the statements of Ratan Yadav (PW-3) and Kunti Bai (PW-4) (bua of the appellant), conviction of the appellant is liable to be set aside and even dying declaration is not reliable, not trustworthy and the appellant is entitled for acquittal. 8. On the other hand, Mr. Neeraj Pradhan, learned State counsel, would support the impugned judgment and submit that the trial Court has rightly convicted the appellant for offence under Section 302 of the IPC and prosecution has been able to prove the offence beyond reasonable doubt and, therefore, the instant appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 10. The first question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded the finding in affirmative on the basis of postmortem report (Ex.P/22) which was proved by Dr. Nalin Chadra Rai (PW-6) in which the cause of death is stated to be septicemia due to 65% and also relying upon the dying declaration (Ex.P/20) which is the finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 11. Nalin Chadra Rai (PW-6) in which the cause of death is stated to be septicemia due to 65% and also relying upon the dying declaration (Ex.P/20) which is the finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 11. Now, the next question is, whether the appellant is author of the crime in question?. 12. Taking into consideration the dying declaration (Ex.P/20) proved by Madhu Harsh (PW-12) Additional Tehsildar-cum-Executive Magistrate and statement of Ratan Yadav (PW-3) deceased’s husband, it is established that the appellant is the author of the crime which has rightly been held by the trial Court and we hereby affirm that finding also. 13. Now, the question is, whether the case of the appellant would fall under Exception 4 to Section 300 of IPC? 14. The Supreme Court in the matter of Sukhbir Singh v. 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.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 15. The Supreme Court in the matter of Gurmukh Singh v. 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 fro 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. 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.” 16. Likewise, in the matter of State v. Sanjeev Nanda, (2012) 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. 17. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh, (2017) 3 SCC 247 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 are 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. 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. 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”. 18. 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. 19. 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. 19. Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi), (2019) 6 SCC 122 has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:- “16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required: (i) There must be a sudden fight; (ii) There was no premeditation; (iii) The act was committed in a heat of passion; and (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.” 20. Reverting to the facts of the present case in light of above principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that the appellant visited the house of Ratan Yadav (PW-3) husband of the deceased and asked to vacate the suit house, in which deceased and Ratan Yadav (PW-3) were residing, and quarreled with them and thereafter, in anger he poured kerosene oil on deceased and set her ablaze. The aforesaid statement of the dying declaration is also supported by Ratan Yadav (PW-3) deceased’s husband. Ratan Yadav (PW-3) has clearly stated in his statement before the Court that on the date of offence the appellant came to his house and asked them to vacate the suit house which was refuted by him and his wife-deceased and on refusal, quarrel took place and at that time the appellant was very angry and abusing Ratan Yadav (PW-3) and his wife-deceased. Also in his cross-examination Ratan Yadav (PW-3) has clearly stated that on account of shifting the cot of Sukhiya Bai – grand-mother of the appellant, a quarrel took place between Ratan Yadav (PW-3) and appellant herein and thereafter he came out of the house and after about 10 minutes he heard the noise of his wife - deceased “bachao bachao..”. He also stated that he and the appellant both extinguished the fire. He also stated that he and the appellant both extinguished the fire. Kunti Bai (PW-4) – appellant's bua has also made the similar statement. She has clearly stated in the cross-examination that appellant and Ratan Yadav (PW-3) came on the spot and extinguished the fire and others have taken the deceased to the hospital and the appellant remained in the house to look after home affairs and, as such, there was no premeditation on the part of the appellant to cause death but in the sudden quarrel erupted between the parties on account of suit house not being vacated the appellant is said to have poured kerosene oil on the body of the deceased and set her ablaze. However, the appellant must have had knowledge that such injury inflicted by him on the body of the deceased would likely to cause her death, as such, this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 Part-II of IPC. 21. In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased but the injuries caused by him were sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-II of IPC and sentenced to undergo rigorous imprisonment for 10 years, but the fine sentence imposed by the learned trial Court shall remain intact. 22. This criminal appeal is party allowed to the extent indicated herein-above.