JUDGMENT : (Pradeep Kumar Srivastava, J.) 1. The instant criminal appeal is preferred by the sole appellant, who has been convicted and sentenced for the offence under section 302 IPC for life imprisonment vide judgment dated 6th/7th June, 1997 passed by Sessions Judge, Godda in S.T. Case No.80 of 1996 arising out of Pathergama P.S. Case No.128 of 1995. FACTUAL MATRIX 2. The factual matrix giving rise to this appeal in a nutshell is that on 06.11.1995, some unknown persons have cut and destroyed the pumpkin plants (kaddu) belonging to the brother-in-law(devar) of the informant Sahchari Devi. It is alleged that due to above reason in the evening at about 8:00 PM, the female members namely Kamla Devi and Suniya Devi of Dilmohan Yadav (devar of the informant) started scuffling and abusing, which was protested by the informant’s husband Bhuneshwar Yadav and suggested to settle the matter peacefully. Meanwhile, the present appellant having a lathi came to the informant’s house and dragged her husband towards road and thereafter indiscriminately assaulted him by lathi due to which he sustained severe head injuries. The wife and the daughter of the appellant have also assaulted her husband by means of legs and fists. The injured was brought on bullock cart of one Chakradhar Yadav Pradhan under unconscious state to the hospital for the treatment where Fardbayan of the informant was recorded by the police. On the basis of which FIR was registered for the offences under sections 341, 323, 504, 307 and 34 of IPC against all the above three names accused persons. In the course of treatment, injured Bhuneshwar Yadav died, hence, the case was converted under section 302 of IPC. In the course of investigation, inquest report of the deceased was prepared and dead body was sent for post-mortem examination. 3. Dr. Ashok Kumar (P.W. 9) has conducted the autopsy on the dead body of the deceased Bhuneshwar Yadav and found single head injury as mentioned under : - Lacerated wound on the left parietal temporal region of skull size 2” x 3/4" x 3/4" - On dissection left parietal temporal bone found fractured with blood clots. -The cause of death is opined due to shock and hemorrhage as a result of above mentioned injuries. 4. -The cause of death is opined due to shock and hemorrhage as a result of above mentioned injuries. 4. After conclusion of the investigation, the Investigating Officer (PW 10) ASI Rajendra Singh found sufficient evidence against the accused persons and submitted charge-sheet for the offences under sections 302 and 34 of IPC. 5. After taking cognizance of the offence, the case was committed to the court of Sessions where S.T. Case No.80 of 1996 was registered. The charges were read over and explained to the accused persons which they denied and claimed to be tried. After conclusion of the trial, the present appellant has been held guilty and sentenced as stated above but other two female accused persons who were tried jointly have been extended benefit of doubt and acquitted from the charges. ARGUMENTS AND SUBMISSIONS 6. Learned amicus curiae appearing for the appellant assailing the impugned judgment and order has vehemently argued that the learned trial court has miserably failed to properly appreciate the prosecution evidence in factual as well as legal aspects. The genesis and manner of occurrence as well as the nature of injuries caused to the deceased does not attract the commission of offence under section 302 of IPC as defined under section 300 (Now section 101 Bhartiya Nayay Sahinta) Elucidating his argument, learned counsel for the appellant has objected the impugned judgment and order on following amongst other grounds:- (i) The prosecution has examined altogether 10 witnesses including the Investigating Officer and the Doctor who conducted the autopsy on dead body of the deceased. There is no dispute that the occurrence took place regarding cutting of pumpkin plants by some unknown persons and thereafter usual scuffle took place between the womenfolk of both parties. The deceased suggested to resolve such trivial dispute peacefully through negotiation. Meanwhile, he was dragged and given single lathi blow on head leading to his death on the next day of the incident. (ii) It is also admitted fact that both the parties are gotiya (agnates) and the occurrence took place in a sudden manner, without premeditation due to cutting and theft of pumpkin. Meanwhile, he was dragged and given single lathi blow on head leading to his death on the next day of the incident. (ii) It is also admitted fact that both the parties are gotiya (agnates) and the occurrence took place in a sudden manner, without premeditation due to cutting and theft of pumpkin. (iii) In the FIR as well as in the evidence of eye-witnesses, it is stated that the deceased was assaulted by lathi indiscriminately but there is only one blow of lathi on head, which is also not opined by the doctor (P.W.9) to be sufficient to cause death in ordinary course of nature rather it is opined that the death was caused due to shock and hemorrhage as as result of above injuries. (iv) Even if the prosecution story is taken to be correct on its face value, the appellant cannot be said to be guilty of commission of offence under section 302 of IPC. Since as per own evidence of prosecution, the intention to kill the deceased was neither alleged nor established rather overall aspects bring the case under section 304 Part-II of IPC inasmuch as there was no intention to cause death and there was no premeditation. The scuffle took place in a sudden manner under heat of passion without taking undue advantage of the situation or acting under unusual or cruel manner by the appellant. (v) Learned trial court has committed manifest error of law and fact to convict and sentence, the accused appellant for the offence under section 302 of IPC and awarded sentence of rigorous imprisonment for life. 7. In the alternative, it is pleaded that on the date of alleged occurrence, the appellant was aged about 40 years and about 30 years has been lapsed; the appellant has become old and infirm person and anyhow he discharges his own daily pursuit of life. In course of the investigation and trial, the appellant has undergone two years imprisonment in this case and during pendency of this appeal, he was granted bail. Since, then he is leading a normal peaceful life without being indulged in any criminal activity as such the appellant has sufficiently been punished for the offence committed by him. Hence, lenient view may be taken in the matter of sentence to the appellant and this appeal may be allowed. 8. Since, then he is leading a normal peaceful life without being indulged in any criminal activity as such the appellant has sufficiently been punished for the offence committed by him. Hence, lenient view may be taken in the matter of sentence to the appellant and this appeal may be allowed. 8. Per contra, learned Special Public Prosecutor appearing for the State controverting the aforesaid contentions raised on behalf of the appellant submitted that the prosecution witnesses have unerringly and consistently proved the specific overt act of the appellant in giving deadly assault to the deceased by means of lathi, which is lethal weapon. The nature of injury sustained by the deceased also shows that the blow was a mighty one caused fracture on head leading to extra transfusion of blood and death of the deceased. The act of the appellant falls under clause 3rd of section 300 of IPC. Therefore, the learned trial court has committed no error of law in convicting the appellant for the offence under section 302 of IPC. There is no legal force in the contentions raised on behalf of the appellant and no merits in this appeal calling for any interference in the impugned judgment and order, which is fit to be dismissed. 9. We have considered the oral as well as documentary evidence adduced by the prosecution in the light of contentions raised on behalf of both side. The evidence of ocular witnesses examined in this case categorically proves that lathi blow injury was caused by the appellant to the deceased in sudden scuffle regarding cutting of pumpkin plants. Initially the dispute commenced between womenfolk of both party, which was objected by the deceased then he was assaulted. 10. Now the question arises as to: (i)whether the accused/appellant has committed murder as defined under section 300 of IPC or the assault was given on the heat of passion without any motive or intention to cause death of the deceased. (ii) Whether the accused is guilty for the offence under section 302 of IPC or the case falls under section 304 Part II of IPC i.e. culpable homicide not amounting to murder. 11. (ii) Whether the accused is guilty for the offence under section 302 of IPC or the case falls under section 304 Part II of IPC i.e. culpable homicide not amounting to murder. 11. From the relevant portion of the First Information Report, the evidence of informant-eyewitness, who happens to be wife of the deceased and other eyewitnesses examined in this case, the following facts may be deduced:- (a) The accused and the deceased belong to the same family and residing as close door neighbor. (b) The scuffle took place in a sudden manner on a trivial issue of cutting pumpkin plant. (c) The single blow injury by lathi was caused to deceased by the appellant. (d)The injury sustained by the deceased has not been opined by the doctor who conducted autopsy on dead body, to be sufficient in the ordinary course of nature to cause death. (e) No other injuries except single lathi blow has been sustained by the deceased. (f) The scuffle ended under small duration. 12. In Dhiraj Bhai Gorakh Bhai Nayak Vs. State of Gujrat (2003) 9 SCC 322 , the Hon’ble Apex Court has discussed the ingredients of Exception 4 of section 300 of IPC and held that it may 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. Heat of passion requires that there must be no time for the passion to cool down. 13. In Pulicheral Nagarajun vs. State of Andra Pradesh (2006) 11 SCC 444 , the Hon’ble Apex Court has held in paragraph 29 as under: “29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under section 302 or 304 part 1 or 304 part II. Many a petty insignificant matters-plucking of food, strain of cattle, quarrel of children, occurrence of a rude word are even an objectionable glance, may lead to altercation and group clashes culminating in deaths. Usual motives like revenge, greed jealously and suspicion may be totally absence in such cases. There may be no intention. There may be no premeditation. In fact, they may not even incriminatory. Usual motives like revenge, greed jealously and suspicion may be totally absence in such cases. There may be no intention. There may be no premeditation. In fact, they may not even incriminatory. At the other end of the spectrum, there may be cases of murder where the accused attends to avoid the penalty for murder by pretending to put forth a case that there was no intention to cause death. It is for the court to ensure that the cases of murder punishable under section 302 are not converted into offences punishable under sections 304 part (I)/(II) or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302 IPC. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances (i) nature of weapon used (ii) whether the weapon was carried by the accused or was picked up from the spot (iii) whether the blow is aimed at a vital part of the body (iv) the amount of force implied in causing injuries (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight (vi) whether the incident occurred by chance or whether there was any premeditation (vii) Whether there was any prior enmity or whether the deceased was stranger (viii) whether there was any grave and sudden provocation, and if so, the cause of such provocation (ix) whether it was in the heat of passion (x) whether the person inflicting the injury has taken undue advantage or as acted in a cruel manner (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.” 14. In Chamru Budhwa vs. State of Madhya Pradesh AIR 1954 SC 652 , the facts were that the three accused went over to the courtyard of the deceased with lathis in their hand. One accused dealt a blow on the head of the deceased who fell down and died due to injury on the head. The doctor opined that the injury inflicted on the head of the deceased was sufficient in ordinary course of nature to cause death. One accused dealt a blow on the head of the deceased who fell down and died due to injury on the head. The doctor opined that the injury inflicted on the head of the deceased was sufficient in ordinary course of nature to cause death. The trial court and the High Court both held the accused to be guilty of the offence under section 302 IPC. In criminal appeal, Hon’ble Supreme Court held that the crime was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the accused’s having taken undue advantage or acted in cruel or unusual manner, thus could fall within the exception 4 of section 300 IPC. Accordingly, the accused was held guilty for committing the offence under section 304 Part II of IPC and sentenced thereunder. 15. From the aforesaid discussion of legal as well as factual aspects of the case, the ocular testimony of witnesses and other materials brought on record by the prosecution, we are of the firm view that in the instant case the appellant was not intending to cause death of the deceased and his act was not premeditated rather in a sudden manner the deceased was given a single lathi blow on head, which was also not found to be sufficient to cause death in the ordinary course of nature. Therefore, the case squarely falls under the provision of Exception 4 to section 300 IPC and punishable under section 304 part II IPC. Accordingly, the conviction of the appellant for the offence under section 302 of IPC is not warranted under law and hereby set aside and altered into the offence under section 304 part II IPC. 16. Now the most important question regarding quantum of sentence to be awarded to the appellant arises for consideration. 17. In the case of Gurmukh Singh vs. State of Haryana (2009) 15 SCC, 635, the Hon’ble Apex Court converting the conviction of the accused from section 302 IPC to section 304 part II IPC, laid down certain factors for awarding appropriate sentence to the accused and held in paragraph 23 as under:- “23. 17. In the case of Gurmukh Singh vs. State of Haryana (2009) 15 SCC, 635, the Hon’ble Apex Court converting the conviction of the accused from section 302 IPC to section 304 part II IPC, laid down certain factors for awarding appropriate sentence to the accused and held in paragraph 23 as under:- “23. (a) motive or previous enmity; (b) whether the incident has taken place on the spur of the moment; (c) the intention and 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; (g) whether the injury was caused without premeditation in a sudden fight; (h) nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) the criminal back ground and adverse history of the accused; (j) whether the injury inflicted was not sufficient in ordinary course of nature to cause death but the death was because of shock; (k) the number of other criminal cases pending against the accused; (l) the incident occurred within the family members for close relation; (m) the conduct and behavior of the accused after the incident whether the accused has taken the injured/deceased to the hospital immediately to ensure that he/she get proper medical treatment.” These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 18. After analyzing the entire evidence, we have no hesitation to hold that it was very un-fortune incident of death happened at the instance of the appellant without any premeditation and intention to cause the injury to the deceased which was also not found to be sufficient to cause death in the ordinary course of nature rather the death was caused due to shock and hemorrhage as a result of head injury. It also appears that the blow given by the appellant was not very much mighty and a very trivial issue culminated into sudden exchange of hot words and infliction of blow. Since after the commission of offence, the appellant has led a peaceful life without indulgence in any criminal activities and about 30 years has been lapsed since the date of occurrence. The appellant has also undergone 2 years imprisonment during trial of the case. Since after the commission of offence, the appellant has led a peaceful life without indulgence in any criminal activities and about 30 years has been lapsed since the date of occurrence. The appellant has also undergone 2 years imprisonment during trial of the case. Considering the aforesaid mitigating circumstances, we are of the opinion that the sentence of imprisonment as already undergone by the appellant appears to be sufficient punishment in the peculiar facts and circumstances of this case and cannot be treated as a precedent. 19. In view of the aforesaid discussion and reasons, this appeal is partly allowed and the conviction of the appellant for the offence under section 302 IPC is altered into offence under section 304 Part II IPC. Therefore, instead of undergoing imprisonment for life as awarded by the trial court, the appellant is sentenced to imprisonment as already undergone by him during the trial of the case. 20. Appellant is on bail, hence he is discharged from liability of bail bond. Sureties shall also be discharged. 21. Pending I.A(s), if any, is also disposed of accordingly. 22. Let the copy of this judgment along with record of trial court be sent back to the concerned trial court for information and needful.