JUDGMENT : Ramesh Sinha, J. 1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 19.05.2023 passed by the learned Sessions Judge, Jashpur, District – Jashpur (C.G.) in Sessions Trial No.11/2022, whereby the appellant-accused has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.100/-, in default of payment of fine, to further undergo additional rigorous imprisonment for 2 months. 2. Case of the prosecution, in brief, is that on 05.11.2021, complainant Indarmani Bai (PW-2) has lodged report against the appellant stating that the accused is her Nephew (Sasur Beta), he came their house on 04.11.2021 at about 5.00 pm and started quarrel with her husband due to their family partition meanwhile he assaulted to her husband namely Rukam Sai Korva by stick and the victim received injuries upon his head, after calling 112, victim was sent to Primary Health Centre, Sanna for his treatment, wherein, MLC was conducted by Dr. Sunil Kumar (PW-7) vide Ex.P-18 who found following injuries over the body of injured/victim : (i) A swollen wound on the upper part of his head which was 2x2 inches in size. (ii) A swollen wound on the left side of the head whose size was 2x1 inch. Both the injuries caused to the victim must have been caused by some heavy and hard object. Seeing the condition of the patient, he advised to take him to a convenient place on the same date. Thereafter, the injured/victim was taken to District Hospital, Jashpur for treatment. 3. But, during the course of treatment injured/victim died on 05.11.2021. Thereafter, as per merg intimation (Ex.P-20) given by Indarmani Bai (PW-2), Crime No. 88/2021 has been registered against the accused/appellant under Section 302 of the IPC vide Ex.P-21 and accused/appellant was subsequently arrested on 06.11.2021 by police officers of Police Station – Bagicha, District – Jashpur (C.G.) vide arrest memo Ex.P-6. Investigating officer left for scene of occurrence and spot maps of the incident site were prepared vide Ex.P-4 and Ex.P-26. Visual map of the incident site (Ex.P-10) and Panchnama (Ex.P-11) were prepared by Patwari. Memorandum statement of accused was recorded vide Ex.P-8. Wooden plank was seized at the instance of accused vide Ex.P-5. Investigating officer left for scene of occurrence and spot maps of the incident site were prepared vide Ex.P-4 and Ex.P-26. Visual map of the incident site (Ex.P-10) and Panchnama (Ex.P-11) were prepared by Patwari. Memorandum statement of accused was recorded vide Ex.P-8. Wooden plank was seized at the instance of accused vide Ex.P-5. After summoning the witnesses vide Ex.P-7, inquest over the dead body of deceased was prepared vide Ex.P-13. Dr. Mamta Singh (PW-1) conducted postmortem over the body of the deceased vide Ex.P-1 and found following injuries:- Swelling present over frontal region of forehead and ecchymosis found over his left eye. There was blood clot in this right nose and blood was leaking from his left nose. The mouth was closed, both fists partially closed, vomits containing food particles present over right shoulder and back right scapular region, urine present in undergarment, rigor mortis present in all limbs. Dr. Mamta Singh (PW-1) opined that cause of death was hemorrhagic shock due to head injury and nature of death will depend on circumstantial evidence and is matter of police investigation. 4. After due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Jashpur, who in turn, committed the case to the Court of Sessions Judge, Jashpur for trial. Learned trial Court framed charges under Section 302 of the IPC, read over and explained to the accused, who abjured his guilt. 5. In order to bring home the offence, the prosecution examined following witnesses :- 1. PW-01 Dr. Mamta Singh 2. PW-02 Indarmani 3. PW-03 Shankar Ram 4. PW-04 Sandip Kumar Bhagat 5. PW-05 Manraj Ram 6. PW-06 Rajendra Ram 7. PW-07 Dr. Sunil Kumar 8. PW-08 Janas Kerketta 9. PW-09 Ranjit Sai 8. PW-10 Pole Ram 9. PW-11 Anand Sai 10. PW-12 Suresh Kumar Ram 11. PW-13 Bharatlal Sahu 12. PW-14 Laxman Singh Dhurve 6. Besides aforesaid ocular evidence, prosecution also exhibited following documents :- 1. Ex.P-1 P.M. Report 2. Ex.P-2 Merg Intimation 3. Ex.P-3 First Information Report 4. Ex.P-4 Crime Details Form 5. Ex.P-5 Property Seizure Memo 6. Ex.P-6 Arrest/Court Surrender Memo 7. Ex.P-7 Summons U/s 175 of Cr.P.C. 8. Ex.P-8 Memorandum 9. Ex.P-9 Search Panchnama 10. Ex.P-10 Spot Map 11. Ex.P-11 Panchnama 12. Ex.P-12 Dead Body Supurdnama Receipt 13. Ex.P-13 Naksha Panchnama 14. Ex.P-14 Statement of Shankar Ram Korva With typed copy 15. Ex.P-15 Memo to Tahsildar for Spot Map 16. Ex.P-5 Property Seizure Memo 6. Ex.P-6 Arrest/Court Surrender Memo 7. Ex.P-7 Summons U/s 175 of Cr.P.C. 8. Ex.P-8 Memorandum 9. Ex.P-9 Search Panchnama 10. Ex.P-10 Spot Map 11. Ex.P-11 Panchnama 12. Ex.P-12 Dead Body Supurdnama Receipt 13. Ex.P-13 Naksha Panchnama 14. Ex.P-14 Statement of Shankar Ram Korva With typed copy 15. Ex.P-15 Memo to Tahsildar for Spot Map 16. Ex.P-16 Memo for submitting Spot Map 17. Ex.P-17 Statement of Rajendra Ram with typed copy 18. Ex.P-18 Medical Examination Report of Rukam 19. Ex.P-19 Statement of Ranjit Ram with Typed copy 20. Ex.P-20 Merg Intimation 21. Ex.P-21&22First Information Report 23. Ex.P-23 Information of Arrest 24. Ex.P-24 Memo for Query of Seized Articles & Report 25. Ex.P-25 Final Report 26. Ex.P-26 Crime Details Form 27. Ex.P-27 Application for P.M. 7. Statement of accused was recorded under Section 313 of the Cr.P.C. in which he denied all the circumstances appearing against him and stated that he is innocent and has been falsely implicated. He has not examined any witness in his defence. 8. The trial Court upon appreciation of oral and documentary evidence on record and considering that it is the appellant who has committed aforesaid offence, convicted and sentenced him in the aforementioned manner, against which the appeal under Section 374(2) of the CrPC has been preferred by the appellant. 9. Mr. Parasmani Shrivas, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 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 appellant is said to have caused injuries to his uncle (deceased) in spur of moment, as they were fighting to each other. There was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused injuries to the deceased, which caused his death. There was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused injuries to the deceased, which caused his death. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Hence, the present appeal deserves to be allowed in full or in part. 10. 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 appellant’s 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. 11. 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. 12. The question for consideration would be whether the accused-appellant is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimony of eyewitness Indarmani (PW-2), who is wife of the deceased and at the relevant point of time was present on the spot where the incident took place. Thus, on the basis of testimony of Indarmani (PW-2), it is clear that it is the appellant herein who on the fateful date and time has caused grievous injuries to his uncle (deceased), due to which he died after two days of the incident. As such, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the body of the deceased and caused his death. Accordingly, we hereby affirm the said finding. 13. As such, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the body of the deceased and caused his death. Accordingly, we hereby affirm the said finding. 13. The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ? 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 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.” 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 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. 19. 19. 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.” 20. In the present case, Indarmani (PW-2) (wife of the deceased) who lodged merg intimation vide Ex.P-2 is an eyewitness of the incident. She stated in para-1 of her evidence that the accused Shatrughan seems to be her husband’s nephew. Last year on the eve of Diwali festival the accused came to their home and killed her husband Rukam Sai Korva on account of land dispute. Regarding which, the information was given by her to police vide Ex.P-2 and on the basis of which, FIR was registered against the accused vide Ex.P-3. After her report, police came to the spot and prepared the document in front of her. Spot map was prepared vide Ex.P-4 and wooden plank was seized from the accused in front of her vide Ex.P-5. In para-3, she has stated that accused Shatrughan had come to their home and started arguing with her husband Rukam Sai regarding the distribution of land and was saying that you have got more property. Then Rukam Sai said to the accused that his father was the elder brother, as per the distribution, he got the same, due to which when the dispute escalated, the accused Shatrughan hit Rukam Sai with a wooden plank due to which he fell unconscious, then she called her nephew Manraj and with his help they called 108 Ambulance and firstly they took the injured Rukam Sai to Sanna hospital, from where he was referred to District Hospital, Jashpur, where he died on the second day at 8 am. In her cross-examination, she has admitted that when the deceased was brought to Sanna and Jashpur for treatment, accused Shatrughan was with her. 21. In her cross-examination, she has admitted that when the deceased was brought to Sanna and Jashpur for treatment, accused Shatrughan was with her. 21. Investigating Officer Laxman Singh Dhurve (PW-14) has stated in para-5 of his evidence that during the investigation he has recorded the evidence of complainant of the case, Indarmani Bai, as per her description. In para-6 of his cross-examination, he has stated that while giving the information about merg intimation, Indarmani Bai has not told that she had seen the incident happening and even in the first information report (Ex.P-3), she did not mention seeing the incident. 22. Manraj Ram who is seizure witness has been examined as PW-5. In para-3 of his evidence, he has stated that the police did not interrogate the accused Shatrughan before him. The accused had not told anything about keeping anything somewhere or getting it recovered. There was no seizure proceedings before him from the accused. 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 Indarmani (PW-2), on the date of incident, the appellant came to their home, at that time some quarrel took place between the accused and her deceased husband on account of land dispute, then out of anger and on sudden quarrel, the appellant assaulted Rukam Sai Korva by wooden plank, by which he received grievous injuries and died after two days of the incident. There was no premeditation on the part of the appellant to cause death of deceased Rukam Sai Korva and only because of land dispute, quarrel took place between the appellant & the deceased and out of that anger and in heat of passion, the appellant assaulted Rukam Sai Korva by wooden plank by which he died. There was no premeditation on the part of the appellant to cause death of deceased Rukam Sai Korva and only because of land dispute, quarrel took place between the appellant & the deceased and out of that anger and in heat of passion, the appellant assaulted Rukam Sai Korva by wooden plank by which he died. The appellant did not have any intention to cause death of deceased Rukam Sai Korva, but by causing such injuries, he must have had the knowledge that such injuries inflicted by him would likely to cause death of Rukam Sai Korva, as such, his case would fall within the purview of Exception 4 of 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. 24. Considering the above-stated facts, also considering the evidence of eyewitness Indarmani (PW-2), who is wife of the deceased and taking into consideration that the appellant is in jail since 06.11.2021, it would meet the end of justice that if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-I of the IPC. 25. Accordingly, conviction of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part-I of the IPC and sentenced to undergo R.I. for 10 years. 26. The appellant is stated to be in jail, he shall serve out the sentence as modified by this Court. 27. The criminal appeal is partly allowed to the extent indicated herein-above. 28. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.