JUDGMENT : Ramesh Sinha, J. 1. This criminal appeal filed by the appellants-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 22.2.2016, passed by the learned First Additional Sessions Judge, Raigarh in Sessions Trial No.24/2014, whereby the appellants-accused have been convicted for offence under Section 302/34 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.5000/-, in default of payment of fine, to further undergo R.I. for 5 months to each of the appellants. 2. Case of the prosecution, in brief, is that deceased Kartikram had land dispute with his brothers namely, Veersingh and Harinath Singh (appellants herein) and on account of that, the appellants always threatened to deceased Kartikram to cause death. On 7.9.2014 at about 5-5.30 p.m. the appellants assaulted Kartikram by spade in Bahara field at village Jatari by which he sustained grievous injuries. Receiving the information about incident, Teejkumar (PW-1), nephew of the appellants and the deceased, reached to the spot whom Kartikram narrated the incident. Thereafter with the help of other persons, Kartikram was admitted to K.G. Hospital, Raigarh and thereafter he was shifted to Shree Balaji Superspeciality Hospital, Mowa, Raipur, where he died on 11.9.2014. Teejkumar (PW-1) lodged dehati nalishi on 8.9.2014 at about 15.45 p.m. vide Ex.P-1 and on the basis of dehati nalishi, FIR (Ex.P-14) was registered against appellant No.1-Veersingh for offence under Section 307 of the IPC, but later on, on the basis of story developed by the complainant when Kartikram succumbed to the injuries on 11.9.2014, name of appellant No.2-Harinath Singh has been implicated in the same crime as he was also involved in commission of offence. Dead body of the deceased was sent for postmortem to Pt. Jawaharlal Nehru Medical College, Raipur, where Dr.S.K.Bagh (PW-10) conducted postmortem over the body of the deceased vide Ex.P-9 and found following injuries:- Dead body of thin built male, adult diaper present on waist, rigor mortis present on whole body. Both eyes semiopen, lip closed, tongue inside mouth, lower inciser teeth missing, socket absorbed, scalp hair shaven off, bandage present over right parietal vertex region of head. INJURY:- HEAD:- Incised looking lacerated wound with stitches present on right side parietal to vertex region 12 c.m. long on cutting stitches, brain matter coming out on opening scalp. Both eyes semiopen, lip closed, tongue inside mouth, lower inciser teeth missing, socket absorbed, scalp hair shaven off, bandage present over right parietal vertex region of head. INJURY:- HEAD:- Incised looking lacerated wound with stitches present on right side parietal to vertex region 12 c.m. long on cutting stitches, brain matter coming out on opening scalp. Dark and black ecchymosis present on right parietal, frontal and left parito frontal region diffusely. Dr.S.K.Bagh (PW-10) opined that cause of death was due to cardiorespiratory failure as a result of head injuries and death was homicidal in nature. Inquest was prepared vide Ex.P-3. Spade was seized from village Puslada at the instance of Teejkumar (PW-1) vide Ex.P-4. Appellant-Veersingh was arrested on 13.9.2014 vide arrest memo Ex.P-18 and appellant-Harinath Singh was arrested on 16.9.2014 vide arrest memo Ex.P-19. 3. Statements of the witnesses were recorded. Bloodstains clothes of appellant No.1-Veersingh, bloodstains clothes of the deceased and spade were sent to Forensic Science Laboratory for examination, however, FSL report has not been received till date. After due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Raigarh, who in turn, committed the case to the Court of Sessions, Raigarh, from where the First Additional Sessions Judge, Raigarh received the case on transfer for trial. The appellants/accused abjured their guilt and entered into defence that they have not committed any offence and they have falsely been implicated in crime in question. 4. In order to bring home the offence, the prosecution examined as many as 14 witnesses and exhibited 21 documents. The appellants-accused examined none in their defence, however, exhibited Exs.D/1 & D/2 in support of their case. 5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 22.2.2016, convicted the appellants for offence under Section 302/34 of the IPC and sentenced them as aforementioned, against which, this criminal appeal has been filed. 6. Mr.Vineet Kumar Pandey, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302/34 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. 6. Mr.Vineet Kumar Pandey, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302/34 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that if the case of the prosecution is accepted as it is, then also the appellants are said to have caused injuries to his brother (deceased) in spur of moment, as they were fighting to each other; though no injury was caused to the appellants herein. There was no motive or intention on the part of the appellants to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellants caused injuries to the deceased, which caused his death. Therefore, the case of the present appellants fall within the purview of Exception 4 to Section 300 of IPC and the act of the appellants is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellants for offence under Section 302/34 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Further, as appellant No.1-Veersingh is in jail since 13.9.2014 and appellant No.2-Harinath Singh is in jail since 16.9.2014 and they have completed near about 8 years and 7 months, therefore, considering the period they had already undergone, they be awarded the sentence of the period already undergone by them. Hence, the present appeal deserves to be allowed in full or in part. 7. On the other hand, Mr.Avinash Singh, learned Panel Lawyer for the respondent/State supports the impugned judgment and submits that it is not a case where the appellants’ conviction under Section 302/34 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC and as such, the instant criminal appeal deserves to be dismissed. 8. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 9. The first question for consideration would be, whether death of deceased Kartikram was homicidal in nature ? 10. 8. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 9. The first question for consideration would be, whether death of deceased Kartikram was homicidal in nature ? 10. The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr.S.K.Bagh (PW-10), who conducted postmortem, has come to the conclusion that cause of death was due to cardiorespiratory failure as a result of head injuries and death was homicidal in nature. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Kartikram was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding. 11. Now, the next question for consideration would be whether the accused-appellants herein are the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimony of eyewitness Harisingh (PW-2), who is brother of the deceased & the appellants herein and at the relevant point of time was present on the spot where the incident took place. Thus, on the basis of testimony of Harisingh (PW-2), it is clear that it is the appellants herein who on the fateful date and time have caused grievous injuries to his brother (deceased), due to which he died after three days of the incident. As such, the learned trial Court has rightly held that it is the appellants-accused who have caused injuries over the body of the deceased and caused his death. Accordingly, we hereby affirm the said finding. 12. The aforesaid finding brings us to the next question for consideration, whether the case of the appellants is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and their conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellants ? 13. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 has observed as under:- “21. 13. 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.” 14. 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 the 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. 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.” 15. 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. 16. 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”. 17. 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 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. 18. 18. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi), (2019) 6 SCC 122 has laid down four ingredients which should be tested to 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.” 19. Appellant No.1-Veersingh while answering question 84 put to him under Section 313 of the CrPC has stated as under:- ^^esjs ikl vpkud e`rd dkfrZd jke QkoM+k ysdj vk;k vkSj QkoMs+ ls flj dks ekjk] eSa viuh tku cpkus ds fy;s mlh dk QkoM+k Nhudj mls Qsaddj ekjk Fkk] eSa funksZ"k gwWA eq>s >wBk Qalk;k x;k gSA** Appellant No.2-Harinath Nishad while answering question 84 put to him under Section 313 of the CrPC has stated as under:- ^^eSa funksZ"k gwWA e`rd dkfrZdjke us Lo;a esjs HkkbZ dks QkoM+s ls ekjk rFkk dkfrZd jke dk QkoM+k Nhudj esjs HkkbZ mls Qsaddj ekjk rFkk tku cpkdj Hkkxrs gq;s vkdj eq>s ?kVuk crk;k gS ftlls eq>s ?kVuk dh tkudkjh gqbZ] fdUrq laifRr dh ykyp esa eq>s Hkh Qalk fn;k x;k gSA** 20. In the present case, Teejkumar (PW-1) (nephew of the deceased) who lodged dehati nalishi vide Ex.P-1 is not an eyewitnesses of the incident. He stated in para-1 of his evidence that when he was present in his house at about 6-6.30 p.m. one unknown person has informed him that Kartikram has been killed and thrown his dead body. After receiving the information, he went to the house of Kartikram at Pusalda. When he saw Kartikram, he was conscious, he asked him as to who assaulted him, then Kartikram told him that Harinath and Veersingh have assaulted him by spade. In para-3 of his cross-examination, he stated that he does not know the name of informant who informed him about death of his Kartikram. He stated that he was informed by his wife and mother that informant has informed that Kartikram has been killed and thrown his dead body. In para-3 of his cross-examination, he stated that he does not know the name of informant who informed him about death of his Kartikram. He stated that he was informed by his wife and mother that informant has informed that Kartikram has been killed and thrown his dead body. This witness has stated that it is correct to say that there was land dispute between his grandfather, uncle and the appellants. This witness has admitted in his evidence that he knew that Kartikram has caused injury to Veersingh by spade and he saw simple injury over head of Veersingh. This witness has stated that spade has been seized from him. 21. Harisingh (PW-2) is eyewitness. On the date of incident, deceased Kartikram was in his field, this witness was also present there, the appellants came to the deceased, who was working in his agricultural field, at that time, some quarrel took place between deceased Kartikram and the appellants herein and the appellants assaulted Kartikram, when Kartikram shouted, he heard his sound and saw the appellants assaulting Kartikram. In para-2 of his cross-examination, this witness has stated that there was land dispute between him & the appellants and deceased Kartikram was in his side. In 161 CrPC statement (Ex.D-1), Harisingh has stated that firstly, Kartikram assaulted Veersingh by spade, which was snatched by him from Kartikram and assaulted over his head by which he received injury and died. 22. Investigating Officer G.P.Patel (PW-13) in para-4 of his evidence has stated that in Ex.P-12 only name of accused Beersingh has been mentioned. It is correct to say that none of the witnesses have stated about the name of accused Harinath. He stated in his evidence that dehati nalishi has been registered by nephew of the deceased. It is correct to say that there was land dispute between the appellants and the complainant party. It is also correct to say that it is apparent from Crime No.115/14 registered against deceased Kartikram that deceased Kartikram assaulted accused Veersingh by spade by which Veersingh suffered injury on his head and thereafter Veersingh snatched spade by pushing Kartikram. In para-5 of cross-examination, this witness has stated that spade, which was seized during investigation, was of Kartikram. This witness also stated that both the parties assaulted to each other. It appears from FIR No.115/2014 that deceased Kartikram firstly assaulted accused Veersingh. In para-5 of cross-examination, this witness has stated that spade, which was seized during investigation, was of Kartikram. This witness also stated that both the parties assaulted to each other. It appears from FIR No.115/2014 that deceased Kartikram firstly assaulted accused Veersingh. He has stated that he cannot say that in order to save his life, Veersingh retaliated and Kartikram has died. 23. Reverting to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra), it is quite vivid that as per evidence of eyewitness Harisingh (PW-2), on the date of incident, the appellants came to the deceased who was working on his agricultural field, at that time, some quarrel took place between them, then out of anger and on sudden quarrel, the appellants assaulted Kartikram by spade, by which he received grievous injuries and died after three days of the incident. There was no premeditation on the part of the appellants to cause death of deceased Kartikram and only because of land dispute, quarrel took place between the appellants & the deceased and out of that anger and in heat of passion, the appellants assaulted Kartikram by spade by which he died. The appellants did not have any intention to cause death of deceased Kartikram, but by causing such injuries, they must have had the knowledge that such injuries inflicted by them would likely to cause death of Kartikram, as such, their case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellants 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. 24. 24. Considering the above-stated facts, also considering the evidence of eyewitness Harisingh (PW-2) and Teejkumar (PW-1), who is nephew of the deceased and taking into consideration that at present appellant No.1-Veersingh is aged about 67 years and appellant No.2-Harnath is aged about 75 years and they are in jail since 13.9.2014 and 16.9.2014, it would meet the end of justice that if the conviction of the appellants under Section 302 of the IPC is altered/converted to Section 304 Part-I of the IPC. 25. Accordingly, conviction of the appellants under Section 302/34 of the IPC is set aside, however, they are convicted under Section 304 Part-I of the IPC and sentenced to undergo R.I. for 10 years. 26. The appellants are stated to be in jail, they shall serve out the sentence as modified by this Court. 27. The criminal appeal is partly allowed to the extent indicated hereinabove. 28. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.