JUDGMENT : Shree Chandrashekhar, J. The sole appellant has suffered imprisonment for life and a fine of Rs. 10,000/-under section 302 of the Indian Penal Code for committing murder of his wife Suraj Muni Murmu. The order of sentence dated 20th December 2017 follows a default stipulation of SI for six months to be undergone by the appellant. 2. Barhait PS Case No 48 of 2012 has been registered on the basis of the fardbeyan of Ravan Murmu who is the father of Suraj Muni Murmu. The fardbeyan of Ravan Murmu was recorded on 27th June 2012 by Garib Das who was the officer-in-charge of Barhait Police Station at Primary Health Center, Barhait. The informant is not an eyewitness to the occurrence as on the previous night he had gone to village Paharpur to attend a marriage ceremony. There he received an information about murder of his daughter whereupon he came back home and took his daughter to the hospital where his statement was recorded by Garib Das. 3. In his fardbeyan, Ravan Murmu has stated that his daughter came home on 20th June 2012 and two days thereafter his son-in-law also came at Khairwa, Teeta Tola and joined his wife in his house. He has further stated that when he came back home at Khairwa, Teeta Tola he found his daughter drenched in blood, her hands and legs were tied by a plastic rope and there were injuries on her neck and right fingers. On the basis of the materials collected in course of the investigation, a charge under section 302 of the Indian Penal Code was framed against the appellant on 19th September 2012. The prosecution has produced ten witnesses to prove the charge of murder against the appellant, out of whom PW1 Kandini Marandi is the mother-in-law of the appellant. 4. According to the prosecution, PW1 Kandini Marandi, PW3 Etwari Soren, PW4 Many Basaki and PW6 Jiten Soren are the star witnesses who have tendered cogent and consistent evidence against the appellant. 5. The prosecution has also laid in evidence the inquest report vide Ext.6 and postmortem report vide Ext.3. It has further sought support from the medical evidence tendered through PW8 Dr. Ranvijay Kumar. 6. The Additional Sessions Judge-I, Sahibganj has culled out the following incriminating circumstances appearing against the appellant: “1. 5. The prosecution has also laid in evidence the inquest report vide Ext.6 and postmortem report vide Ext.3. It has further sought support from the medical evidence tendered through PW8 Dr. Ranvijay Kumar. 6. The Additional Sessions Judge-I, Sahibganj has culled out the following incriminating circumstances appearing against the appellant: “1. Accused Pato Marandi is the husband of the deceased who had come to her maike two days prior to the occurrence. 2. On the relevant day and time of occurrence, he along with his wife, deceased was at the house and his mother-in-law had gone outside to take bath whereas his father-in-law and brother-in-law (Sala) had also been out of the village in order to attend the wedding party. 3. After return from the Pokhra(Tank), the mother of the deceased found her injured having sustained cut injury caused by means of Chhimny, whose hands and legs was tied with plastic ropes. 4. Soon after the occurrence, the accused Pato Marandi was seen fleeing from PO house and the Chhimny and plastic ropes stained with blood are lying there in the house. 5. Prior to the occurrence, the accused asked her deceased wife to go with him to the Sasural house of which, she denied on account of her being suffered from wound in her leg. 6. After sustaining injury, she was promptly taken to the hospital, PHC, Barhait, where she succumbed to the injuries.” 7. The trial Judge has on consideration of the evidence produced by the prosecution recorded the following findings: “Thus, when these circumstances, are linked together, they firmly and cogently establishes the complicity of the accused in the alleged crime unerringly pointing towards his guilt and not of others and its cumulative effect also forms a chain, which is so complete in itself that there is no escape from the conclusion that within all human probabilities, the crime is committed by the accused and non else. Not only this, the presence of motive however is a circumstance against the accused which may also help in proving the intention of the accused and in this case, the prosecution has proved the motive behind the occurrence with cogent evidence that on account of refusal made by the deceased for accompanying him, he being infuriated, caused her injury by means of Chhimny a sharp edged weapon and that too on her vital part (neck) which resulted into her death during the course of treatment.Therefore, the motive has also been assumed significance in this case. It is also to be noted here that the witnesses, who have deposed in this case are on hearsay basis and there is some discrepancies and inconsistencies in their testimonies but the same is not of such a magnitude which creates doubt over the authenticity of prosecution case which is otherwise proved from the testimony of aforementioned natural and competent witnesses to the occurrence, as they have got occasion to see and watch the prior and subsequent event to the occurrence having no animosity at all to falsely implicate the accused in the alleged crime. Therefore, the plea of false implication of the defence does not appear to be reasonable and probable in the facts and circumstances of the case, and as such the same is of no avail to the accused as the evidence on record is so clinching and convincing which clearly indicates his culpability in the murder of his own wife, therefore, he cannot escape from the liability made therein.” 8. As noticed above, the appellant has been found guilty for committing murder of his wife for which he has suffered imprisonment for life with a fine of Rs. 10,000/-. 9. Mr. Raja Ravi Shekhar Singh, the learned counsel for the appellant submits that (i) PW1 who has been projected by the prosecution as an eyewitness is not a reliable witness and, moreover, the trial Judge has also recorded a finding that no witness has seen the occurrence (ii) other witnesses such as PW3, PW4 and PW6 have not tendered such evidence that shall be sufficient to record conviction of the appellant and (iii) the appellant can, at best, be convicted and sentenced under section 304 Part-I of the Indian Penal Code. 10. PW1 is the mother-in-law and PW2 is the father-in-law of the appellant. 10. PW1 is the mother-in-law and PW2 is the father-in-law of the appellant. PW4 and PW5 both have deposed in the Court that the appellant had cordial relation with his wife. PW3, PW4, PW5 and PW6 are the next door neighbours of PW1. The prosecution has been able to establish their presence in their house at the time of the occurrence. PW4 has stated that on hearing hulla he rushed to the house of PW1 where he found injury over neck of Suraj Muni Murmu caused by Chimney. He has further stated that her husband had fled away towards hills. This witness has spoken about cause for the quarrel between the appellant and his wife, that the appellant was asking his wife to join him in the matrimonial home but she on account of her leg injury was not willing to go with him. In paragraph No.3 of his cross-examination, this witness has stated that his house is next to the house of Ravan Murmu but he has not seen the appellant assaulting his wife. However, this witness has stated that when he arrived at the house of PW1, the appellant was holding a Chimney in his hand which he threw on the ground and fled away. He has further stated that several persons had arrived at the house of PW1 but they did not attempt to apprehend the appellant. PW3 has also gone to the house of PW1 on hearing hulla. PW3 has deposed in the Court that she has seen the appellant assaulting his wife with Chimney. She is also a witness to the inquest report. This witness has deposed in the Court that Garib Das made seizure of Chimney, which was blood-stained and rope from varandah of the house of PW2. She has disclosed the reason for dispute between the appellant and his wife. This witness has stated that Suraj Muni Murmu was not willing to accompany her husband to the matrimonial home due to her leg injury. PW5 has tendered a similar evidence as spoken by PW3 and PW4. He has seen neck injury over Suraj Muni Murmu and a blood-stained Chimney lying on the ground. This witness has gone to the hospital where Suraj Muni Murmu was taken for treatment. He has further stated that after some time the police arrived there and recorded the statement of Ravan Murmu. 11. He has seen neck injury over Suraj Muni Murmu and a blood-stained Chimney lying on the ground. This witness has gone to the hospital where Suraj Muni Murmu was taken for treatment. He has further stated that after some time the police arrived there and recorded the statement of Ravan Murmu. 11. In the morning of 27th June 2012 at around 08:00 AM, PW6 was taking breakfast in his house. He heard loud sounds whereupon he had gone to the house of PW2 which is adjacent to his house. This witness has stated that he has seen the appellant fleeing away from the place of occurrence. In the cross-examination, PW6 has again asserted that on hearing hulla he left his breakfast and rushed to the house of PW2 where he has seen the appellant fleeing from the place of occurrence. PW6 has also appended his signature over the fardbeyan of PW2. 12. PW1, PW3 and PW6 have given direct evidence on complicity of the appellant in the crime. PW1 has stated that when she left for taking bath, her daughter and the appellant were present in the house. She has stated that her daughter was killed by the appellant. PW3 has also claimed that she had seen the appellant assaulting Suraj Muni Murmu and PW6 in his examination-in-chief has stated that he has seen the appellant fleeing away from the place of occurrence. PW1 was not cross-examined by the defence and PW3 and PW6 have remained unshaken in the cross-examination. 13. While so, presence of the appellant on the day of the occurrence in the house of PW1 is established beyond any doubt. Even accepting for the sake of argument that PW1 is not an eyewitness, presence of the appellant just before the occurrence in her house is established and, as noticed above, PW6 has found him running away from the house of PW1. The time gap between PW1 leaving the house for taking bath and her returning home when she found her daughter dead is so short that intervention of a third person is completely ruled out. The time gap between PW1 leaving the house for taking bath and her returning home when she found her daughter dead is so short that intervention of a third person is completely ruled out. The death of the wife of the appellant has occurred not in his house but on account of his presence in the house and possibility of any other person committing the crime being completely ruled out are such incriminating materials which would shift the burden on the appellant to put forth a plausible defence and explain to the Court how his wife was murdered. 14. The prosecution has established homicidal death of Suraj Muni Murmu. It has also established presence of the appellant at the place of occurrence just before the dead body of Suraj Muni Murmu was found. In these circumstances, it is lawful for the Court to raise an inference under section 106 of the Indian Evidence Act that the appellant has committed murder of his wife. In his examination under section 313 of the Code of Criminal Procedure, the appellant has failed to offer any plausible explanation to the incriminating materials appearing against him. The submission made on behalf of the appellant that some incriminating materials were not put to the appellant when he was examined under section 313 of the Code of Criminal Procedure cannot be accepted. In a criminal trial where evidence is taken in presence of the accused who has been represented through his lawyer, a defect of this nature is not sufficient to hold that the trial of the accused for murder must vitiate. 15. In our opinion, PW1, PW3, PW4, PW5 and PW6 are reliable witnesses through whom the prosecution has established presence of the appellant in the house of PW1 at the time of occurrence. 16. Now, the issue which calls for determination by this Court is whether the appellant is guilty of murder or culpable homicide not amounting to murder. It is the prosecution evidence that the appellant had cordial relation with his wife. What had led to quarrel between the couple in the morning of 27th June 2012 has not come on record. The prosecution witnesses have simply stated that on hearing hulla they had gone to the house of PW1. It has also come on record that it was a trivial issue which led to a quarrel between the appellant and his wife. The prosecution witnesses have simply stated that on hearing hulla they had gone to the house of PW1. It has also come on record that it was a trivial issue which led to a quarrel between the appellant and his wife. PW3, PW4 and PW6 have deposed in the Court that on account of leg injury Suraj Muni Murmu was not willing to accompany her husband to her matrimonial home. 17. Exception 4 to section 300 of the Indian Penal Code is as under: “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. Explanation — It is immaterial in such cases which party offers the provocation or commits the first assault.” 18. In “Surinder Kumar v. Union Territory, Chandigarh” (1989) 2 SCC 217 the Hon'ble Supreme Court has observed that for the applicability of Exception 4 to section 300 of the Indian Penal Code the following ingredients must be satisfied: “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 has not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not adecisive factor but what is important is that the occurrence 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.............................” 19. Dr. Ranvijay Kumar who tendered as PW8 has stated in the Court as under: “Eyes and mouth closed, whole body found edematous, Rigor mortis could not be ascertained on account of said edematous. External Examination:-there were anti mortem injuries. 1. Dr. Ranvijay Kumar who tendered as PW8 has stated in the Court as under: “Eyes and mouth closed, whole body found edematous, Rigor mortis could not be ascertained on account of said edematous. External Examination:-there were anti mortem injuries. 1. Incised wound measuring about 4" x 21/2" x skin deep in front of neck just below floor of mouth. 2. Abrasion on right index finger 1/2"x 1/2"x ¼". The doctor has further deposed that on dissection of cranium-Brain and brain matter found pale, Neck -Trachea, oesophagus, partially cut and all structures beneath neck found congested. Thorax-Thoracic viscera were found, Abdominal cavity-Abdominal viscera.” 20. From the aforesaid medical evidence, it is apparent that there was one serious injury over the vital part of the body of Suraj Muni Murmu. The act of causing single injury over the vital part of the body may bring the case under section 302 of the Indian Penal Code. However, whether the act of the accused shall fall under section 302 of the Indian Penal Code or the exceptions provided thereunder is a question which can be decided in the facts of that particular case. 21. In our opinion, the act of the appellant of causing neck injury to his wife in course of the quarrel shall bring his case under Exception 4 to section 300 of the Indian Penal Code. 22. Section 304 of the Indian Penal Code reads as under: “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.” 23. Causing neck injury which has finally resulted into death of Suraj Muni Murmu would establish that the appellant intended to cause the neck injury and, therefore, he is liable to be convicted and sentenced under section 304 Part-I of the Indian Penal Code. 24. Therefore, the judgment of conviction dated 19th December 2017 and the order of sentence under section 302 of the Indian Penal Code for life and a fine of Rs.10,000/-dated 20th December 2017 against the appellant, namely, Pato Marandi passed by the learned Additional Sessions Judge-I, Sahibganj in ST No. 214 of 2012 are set-aside. 25. The appellant, namely, Pato Marandi is convicted and sentenced to RI for 10 years under section 304 Part-I of the Indian Penal Code. 26. Mr. Saket Kumar, the learned APP informs the Court that the appellant, namely, Pato Marandi has remained in custody for more than 10 years. 27. Accordingly, the appellant, namely, Pato Marandi shall be set free forthwith, if not wanted in connection to any other case. 28. In the result, Criminal Appeal (DB) No. 89 of 2018 is partly allowed in the aforesaid terms. 29. Let lower Court records be transmitted to the Court concerned, forthwith. 30. Let a copy of the Judgment be transmitted to the Court concerned through FAX.