JUDGMENT : ANANDA SEN, J. 1. At the very outset it has been informed and also admitted by the learned A.P.P. that out of the two appellants, appellant No. 1, namely, Triloki Turi has died during pendency of this appeal and there is no substitution petition to substitute him. Thus, this appeal stands abated so far appellant No. 1, Triloki Turi is concerned. 2. This appeal is now confined only in respect to appellant No. 2, namely, Mahadeo Turi. 3. This criminal appeal is directed against the judgment of conviction and order of sentence dated 3rd of September, 1994 passed by the learned 5th Additional Sessions Judge, Dhanbad in S.T. No. 50 of 1989, whereby the appellant has been convicted under section 302/34 of the Indian Penal Code and thereafter has been sentenced to undergo imprisonment for life. 4. The prosecution case is based on the fardbeyan (Ext.6) of Nageshwar Turi (P.W.3), son of Late Raghu Turi. He has stated that on 24.04.1988 when he returned to his home at 9.00 P.M. he was told by his wife that at 8 A.M. there was some quarrel between the wives of the appellants and the informant with regard to disconnection of electric connection. Further, case of the prosecution is that, on 04.05.1988 at about 6.30 A.M. son of the informant Hari Narayan Turi (deceased) went to the house of Triloki Turi to pacify the previous quarrel. The wife of the informant also arrived there and some hot talk between them started and it is said that the appellants became angry and Triloki Turi brought a patti of cot and gave a blow on the head of Hari Narain Turi. Mahadeo Turi also took out a lathi and gave a blow on his head. Sarju Turi, Muski Turi and others also arrived there. Hari Narain Turi thereafter, became senseless as a result of the injuries and thereafter, he was taken to Jharia State Dispensary by Sarju Turi, Smt. Manti Devi and others. The Doctor referred him to Sadar Hospital, Dhanbad. On the basis of fardbeyan a formal F.I.R. (Exhibit-6) was initially registered under Sections 341/323/307/34 of IPC. 5. Thereafter the injured was brought to Sadar Hospital, Dhanbad and in course of treatment the injured died. After investigation, chargesheet was submitted by the police under Sections 302/34 of IPC. The Doctor referred him to Sadar Hospital, Dhanbad. On the basis of fardbeyan a formal F.I.R. (Exhibit-6) was initially registered under Sections 341/323/307/34 of IPC. 5. Thereafter the injured was brought to Sadar Hospital, Dhanbad and in course of treatment the injured died. After investigation, chargesheet was submitted by the police under Sections 302/34 of IPC. After submission of charge sheet, cognizance was taken by the learned Chief Judicial Magistrate, Dhanbad vide order dated 02.08.1988 under Sections 302/34 of IPC. As the case was exclusively tried by the Court of Sessions, therefore, vide order dated 07.02.1989 the case was committed to the court of Sessions. 6. After-commitment, charge was framed on 14.08.1991 for the offence under Sections 302/34 of IPC and the same was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. 7. The defence is total denial of the occurrence and claimed to be tried. The further defence is that no occurrence as alleged has taken place and they have been falsely implicated in this case due to previous enmity. In the statement recorded under Section 313 Cr.P.C. the accused also claimed to have been falsely implicated. 8. The prosecution has examined altogether 11 witnesses including the I.O. and Doctor, in support of the charges framed against the appellant. Out of 11 prosecution witnesses, P.W.1, Sarju Turi, P.W.2 Pasinger Turi, P.W.6 Manti Devi and P.W.8 Muski Turi claimed to be eye witnesses as they were present at the place of occurrence; P.W.3 Nageshwar Turi (informant), P.W. 4 Brahmdeo are hearsay witnesses, P.W.5 Tikeshwar Turi said to be the eye witness, but did not support the prosecution case and was declared hostile. P.W.9 is Dr. Rai Sudhir Prasad, who conducted post-mortem examination on the dead body of the deceased, P.W.10 is Dr. T.C. Thakur, who treated the deceased in Jharia State Dispensary and P.W.11 is Sri Mohan Sharma, he is the Investigating Officer of the case. 9. P.W.1 Sarju Turi. In his examination has stated that on 04.05.1988 at 07:30 A.M. on hearing hue and cry he came to the house of Triloki Turi and saw that an altercation between Triloki Turi, Mahadev Turi and Hari Narain Turi was going on. 9. P.W.1 Sarju Turi. In his examination has stated that on 04.05.1988 at 07:30 A.M. on hearing hue and cry he came to the house of Triloki Turi and saw that an altercation between Triloki Turi, Mahadev Turi and Hari Narain Turi was going on. As wife of Triloki Turi is cousin sister of Hari Narain Turi therefore, he was asking wife of Triloki Turi not to allow Mahadev Turi in her house. Exchange of hot words took place. Then, Triloki Turi brought one patti of a cot and Mahadeo Turi brought one lathi. Triloki assaulted Hari Narain on the head by the patti of cot and Mahadeo Turi gave lathi blow on the head of the deceased due to which deceased fell down and became senseless. Thereafter, he was taken to Jharia Hospital from where he was referred to Sadar Hospital, Dhanbad. In course of treatment Hari Narain Turi died in Sadar Hospital, Dhanbad. 10. P.W.2, Pasinger Turi has also said that on hearing hue and cry he went to the house of Triloki Turi and saw that altercation was going on between Triloki and Hari Narain and Mahadeo was sitting there. Hari Narain was asking her cousin sister Bijli not to allow Mahadeo to come to her house. On this Mahadeo Turi instigated Triloki Turi to assault him. Then Triloki Turi brought a Patti of cot from his house and Mahadeo Turi brought one lathi. Triloki gave a blow on the head of Hari Narain by a patti of cot and Mahadeo also gave a blow of lathi on his head. Hari Narain became senseless due to the injuries. Then he was taken to Jharia hospital. Sarju Turi, Tikeshwar Turi, Barhamdeo Turi, Mahavir Turi, Muski Turi and Manti Devi had also seen the occurrence. His further evidence is that the police came there on 05.05.1988 and seized the patti of cot and lathi from the house of the Triloki Turi and prepared a seizure list on which he has also signed (Ext.1). In paragraph 6 he has admitted that Gopal Turi is the brother-in-law of Nageshwar Turi and this Gopal Turi is his father-in-law. He has also admitted that the occurrence had taken place in open place, and Sarju Turi, Mahavir Turi, Muski Turi, Brahmdeo Turi, Tikeshwar Turi and Manti Devi were also present at the place of occurrence before his arrival. 11. He has also admitted that the occurrence had taken place in open place, and Sarju Turi, Mahavir Turi, Muski Turi, Brahmdeo Turi, Tikeshwar Turi and Manti Devi were also present at the place of occurrence before his arrival. 11. P.W.3 Nageshwar Turi is the informant. He is a hearsay witness. He stated that on 04.05.1988 he went to school and when he returned from the school at 11.00 A.M. his grandson, Raj Kumar Turi told him that accused persons had assaulted Hari Narain Turi and he was taken to Jharia hospital. Then he went to Jharia hospital where his injured son, wife, Sarju, Pasinger Muski Turi and others were present. He saw that his son had injury on his head. On enquiry his son told him that Triloki and Mahadeo had assaulted him by patti of a cot and lathi respectively. He further stated that his wife also told him about the occurrence and then he went to the Police Station where his fardbeyan was recorded. His further evidence is that Triloki was his Sarhu and Mahadeo used to come there, for which, they had objection. Kallu Turi had brought his wife and son in the house of Triloki Turi for advising Triloki Turi not to allow Mahadeo Turi to come in his house. Due to that Triloki assaulted Hari Narain by a patti of a cot and Mahadeo by a lathi on his head. In cross-examination he has said that prior to this occurrence his wife had refused Bijli Devi to give electric connection. He has admitted that he had not stated before the police that his grandson had told him that the accused persons had assaulted him and his father was taken to Jharia hospital. He further said that he stated before the police that his son Hari Narain had told him that Triloki had assaulted him by a patti of cot and his wife had also narrated him about the occurrence. In para 4 of his evidence he stated that police had recorded the statement of his son also. In para 7 he has said that they had brought the injured to the Dhanbad Sadar Hospital in the night of 04.05.1988 but he was admitted in the hospital early morning on the next day. 12. P.W.-4 is Brahmdeo Turi. In para 4 of his evidence he stated that police had recorded the statement of his son also. In para 7 he has said that they had brought the injured to the Dhanbad Sadar Hospital in the night of 04.05.1988 but he was admitted in the hospital early morning on the next day. 12. P.W.-4 is Brahmdeo Turi. He has stated that on hearing hue and cry from the house of Triloki Turi he went to his house and on the way he saw that Sarju Turi, Pasinger Turi and mother of Hari Narain were bringing Hari Narain who had injury on his head. On enquiry the mother of Hari Narain told him that Triloki had assaulted him. Then he went to attend his duty. In the evening, he went to the hospital to see Hari Narain. He was discharged from that hospital and then he was brought to home and was taken to Dhanbad Hospital on the next day. In cross-examination he has admitted that he had stated before the police that Hari Narain Turi was being assaulted and had sustained injuries and on enquiry, the mother of Hari Narain told him that Triloki had assaulted him. 13. P.W.5 is Tikeshwar Turi. He has stated that he did not know as to how Hari Narain had died. He did not support the prosecution case and therefore he has been declared hostile. 14. P.W.6 Manti Turi she is the mother of the deceased and wife of the informant. She claimed to be an eye witness. On 04.05.1988 at 07:30 A.M. her brother-in-law, Kallu Turi came to her house and took her son, Hari Narain to go to the house of Triloki Turi to pacify the matter, where Triloki Turi and Mahadeo gave patti blow and lathi blow respectively on the head of Hari Narain Turi. After receiving the injury Hari Narain fell down and became senseless. Thereafter she, Sarju and Pasinger took the injured to Jharia Hospital, where after some treatment he came to sense. In the meantime, his father also arrived in the Hospital. Therefrom the injured was taken to Sadar Hospital, Dhanbad. In cross-examination she has also said that she, Brahmdeo, Muski, Pasinger and Mahavir were present at the place of occurrence. Thereafter she, Sarju and Pasinger took the injured to Jharia Hospital, where after some treatment he came to sense. In the meantime, his father also arrived in the Hospital. Therefrom the injured was taken to Sadar Hospital, Dhanbad. In cross-examination she has also said that she, Brahmdeo, Muski, Pasinger and Mahavir were present at the place of occurrence. In para 6 she had denied that she has stated before the police that her son did not regain sense, when he was brought home and they were preparing for taking him to Dhanbad Sadar, Hospital and she stated before the police that Hari Narain regained sense in Hospital. In para 9 she says that Hari Narain has sustained injury on his head only. 15. P.W.7 is Karu Turi. He has stated that he was asked to bring a rickshaw and he took Hari Narain Turi to Jharia Hospital by his rickshaw. Hari Narain sustained injury on his head. In cross-examination he has said that he did not remember as to who had gone to the hospital with the injured. 16. Muski Turi, P.W.8 is another eye witness of the occurrence. His evidence is that when he was returning after easing himself he saw that an altercation was taking place between Triloki and Hari Narain in front of the house of Triloki Turi. Tikeshwar, Sarju, Brahmdeo and Manti Devi and others were also present there. Triloki Turi assaulted Hari Narain by the patti of a cot due to which he fell down, thereafter, he was taken to Jharia hospital. At about 4 P.M. he also went to see him in the hospital where he regained sense. The doctor of Jharia Hospital asked them to take him to Dhanbad hospital but as they had no vehicle at night, Hari Narain was taken to Dhanbad in the next morning. He has also said that Mahedeo Turi had illicit connection with the wife of Triloki Turi which was being objected by Hari Narain Turi. In para 10 of the cross-examination he has said that Hari Narain was not assaulted by lathi, but with patti of cot. In para 13 he has admitted that he is a witness of Nageshwar Turi in another case filed against the accused persons. 17. P.W. 9 Dr. In para 10 of the cross-examination he has said that Hari Narain was not assaulted by lathi, but with patti of cot. In para 13 he has admitted that he is a witness of Nageshwar Turi in another case filed against the accused persons. 17. P.W. 9 Dr. Rai Sudhir Prasad, who conducted post-mortem examination on the dead body of the deceased on 06.02.1988 at 11.15 A.M. and found the following antemortem injuries on the person of the deceased. 2½” long stitched wound in left frontoparietal area of the head. This wound was caused by hard and blunt weapon. On further dissection he found presence of blood clot underneath the scalp in frontoparietal area. 2¼” long vertical fracture of frontal bone was seen and from this fracture one more fracture 1” long was seen to be going towards left side. Right frontoparietal suture was found to be loosened. 2½” long linear fracture of right partial bone was seen. Subdural haematoma was found in front partial area. Stomach was 1/4th full with blackish fluid. Death occurred due to crania cerebral injuries resulting from hard and blunt force assault over the head. 18. P.W.10 is Dr.T.C. Thakur, who had treated the injured Hari Narain Turi in Jharia State Dispensary. His evidence is that he had found lacerated wound 3 1/4" x 1/2" x skin deep on left parital part of head. Age of injury was within one to two hours and the nature of the injury was grievous, caused by hard and blunt substance. He has also stated that the death was possible by above injury. In cross-examination, he has stated that the above injury was not possible by fall on stone. In para 5 he has deposed that he was not able to say whether the injured was in sense at the time of examination or not because it was not written in the report. 19. P.W.-11 is the Investigating Officer of this case. As per his deposition he went to the house of the informant and took his statement. The place of occurrence was in front of the house of Triloki Turi. He found blood on the place of occurrence and seized the blood-stained soil from the place of occurrence and seizure list was prepared, which was marked as Exhibit-4. As per his deposition he went to the house of the informant and took his statement. The place of occurrence was in front of the house of Triloki Turi. He found blood on the place of occurrence and seized the blood-stained soil from the place of occurrence and seizure list was prepared, which was marked as Exhibit-4. He also seized one lathi and one patti of a cot from the place of occurrence for which another seizure list was prepared, marked as Exhibit-4/1. He has further said that the witness Tikeshwar Turi had stated before him that altercation between Hari Narain, Triloki and Mahadeo was going on in his presence and Mahadeo asked Triloki to bring lathi and upon which Triloki brought a patti of a cot and Mahadeo also brought a lathi and both of them assaulted Hari Narain on his head. He has further said that the inquest report, marked as Exhibit-7 of the dead body was prepared by B.L. Paswan. In cross-examination also he has said that he had found blood-stained soil on the place of occurrence. He had found lathi also, but he did not send blood-stained soil and lathi for examination. At that time the son of the informant was senseless and they were preparing to take him to the hospital. 20. Besides the oral evidence, the prosecution has also submitted and exhibited the following documents: Ext.1 is signature of P.W.2, Ext. 2 is the post-mortem report, Ext. 3 is the injury report of Harinarayan Turi, Exts. 4 and 4/1 are the two seizure lists, Ext. 5 is formal F.I.R., Ext.6 is the fardbeyan of the informant, Nageshwar Turi and Ext. 7 is the carbon copy of the inquest report. 21. Now on the basis of the evidence and the materials available on record that as to whether the prosecution has proved the case beyond all reasonable doubts or not. 22. The charge was framed against this appellant under Sections 302/34 of the Indian Penal Code. Sections 302/34 of the Indian Penal Code provides for punishment for committing murder. Murder has been defined in Section 300 of IPC. It is necessary to quote Section 300 of IPC for better appreciation, which is hereunder: Section-300. Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death. Murder has been defined in Section 300 of IPC. It is necessary to quote Section 300 of IPC for better appreciation, which is hereunder: Section-300. Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death. 2ndly - if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. 3rdly - if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. 4thly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 23. As per Section 300 of IPC, if the culpable homicide is done with the intention of causing death, the same would come within the ambit of murder. If the said act is done with intention of causing such bodily injury, wherein the offender knows that the same is likely to cause death then it is also murder. The other condition also prescribes that there should be an intention and the injury is sufficient in the ordinary course of nature to cause death or it is so dangerous that in all probability, it will cause death. 24. Culpable homicide is defined under Section 299 of IPC, which reads as under: Section 299. Culpable homicide: Whoever cause death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely by such act to cause death, commits the offence of culpable homicide. 25. All culpable homicides are not murder. There are four exceptions provided in Section 300 of Indian Penal Code. If the act falls within those exceptions, the culpable homicide is not murder. 25. All culpable homicides are not murder. There are four exceptions provided in Section 300 of Indian Penal Code. If the act falls within those exceptions, the culpable homicide is not murder. One of such exception is Exception-4, which read as follows: 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. From perusal of Exception-4, it is evident that there are four pre-conditions for applicability of said exception. Four pre-conditions are as follows: (1) the act must be committed without pre-mediation in a sudden fight in the heat of passion. (2) when there was a sudden quarrel. (3) without the offender taking undue advantage. (4) and the accused had not acted in a cruel or unusual manner. 26. The Hon’ble Supreme Court in the case of Mahesh Balmiki vs. State of M.P. 2000 (1) SCC 319 has held that where the above pre-conditions are satisfied the culpable homicide would not amount to murder. 27. Considering the aforesaid proposition of law, if we analyse the evidence, it is clear that all the witnesses have stated that there was an altercation going on between the parties. When this altercation was going on, the appellant- Mahadev Turi gave a lathi blow on the head of the deceased and co-convicts, Triloki Turi (now dead) has gave a blow with the patti of cot. None of the witnesses stated that there was any intention to commit murder of the deceased. 28. Further it has come in evidence that the appellant gave only one blow on the head of the deceased. The main ingredients of intention to commit murder is missing in this case. 29. Further from the evidence it is also clear that there was intention to cause hurt to the deceased. This is derived from the deposition of P.W.-1 and P.W.-2, who stated that when the altercation took place, it was Mahadev Turi, who instigated to assault the deceased when Triloki Turi (since dead) got the patti of cot from his house and gave one blow on the head of the deceased. This evidence is uncontroverted and clearly suggests that there was intention to cause hurt. 30. This evidence is uncontroverted and clearly suggests that there was intention to cause hurt. 30. From the facts of this case, we are of the opinion that exception 4 of Section 300 of IPC is applicable in this case. This culpable homicide was committed without any premeditation, in a sudden altercation in the heat of passion and, in fact, the offender did not act in a cruel or unusual manner. 31. Now in a case where the culpable homicide does not amount to murder the case cannot fall within section 302 of IPC rather would fall under Section 304 of IPC. Section 304 of IPC is divided in two parts, the sole distinction in applicability of either part-I of Section 304 or part-II of Section 304 of IPC, is the element of intention. If the act is done without any intention of causing death, then it will come under part-II of Section 304 of IPC. For better appreciation, Section 304 of the Indian Penal Code is quoted hereunder: 304. Punishment for culpable homicide not amounting to murder - Whoever commits culpable homicide not amounting to murder, shall be punished with [imprisonment for life] or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death: Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 32. From the facts of this case, in our opinion, section 304 of the Indian Penal Code would attract in this case in place of section 302 of the Indian Penal Code. From the evidence, which has been led before the trial court, we find that essential ingredients of Part-I i.e. intention to cause death or to cause such bodily injury as it likely to cause death are not satisfied in this case. We do not find any ingredients of Part-I of section 304 of the Indian Penal Code present in the instant case. We do not find any ingredients of Part-I of section 304 of the Indian Penal Code present in the instant case. Thus, in our opinion, the conviction under section 302 of the Indian Penal Code cannot be sustained, the same is set aside and converted into Part-II of section 304 of the Indian Penal Code. 33. Since the conviction under Section 302 of IPC is set aside and converted into part-II of Section 304 of IPC, accordingly, the sentence of life is also set aside. 34. We have also heard, the learned counsel for the appellant on the point of sentence. He submits that the appellant has already remained in custody for about one month and the entire occurrence took place on the heat of the moment. He also submits that admittedly this appellant was provoked by the side of informant. He further submits that this appellant was not the aggressor, rather it is the informant party, who had come to the house of the appellant and started quarrelling, which resulted into the occurrence. He lastly submits that the appellant is aged about 69 years. 35. After hearing the parties and perusing the evidence of the prosecution witnesses and considering the facts and circumstances of the case, we are of the opinion that the sentence of 05 (five) years should be an appropriate sentence, so far as this appellant is concerned. The appellant is on bail. His bail bonds is cancelled and he is directed to surrender in the Court below to serve rest of the sentence. 36. This appeal is partly allowed with the aforesaid modification in the impugned judgment of conviction and order of sentence dated 03.09.1994, passed by the learned 5th Additional Sessions Judge, Dhanbad in S.T. No. 50 of 1989. 37. Let the records of the Trial Court be transmitted to it forthwith along with a copy of this judgment.