JUDGMENT : Ramesh Sinha, J. 1. The appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.) questioning the impugned judgment dated 21.12.2021 passed by the learned First Additional Sessions Judge, Sakti, District Janjgir Champa, in Sessions Trial No. 01/2018, whereby the appellant has been convicted and sentenced as under: Conviction Under Section Sentence Fine In default of payment of fine 450 IPC Rigorous imprisonment (for short, R.I.) for 5 years Rs. 1000/- Additional R.I. for 6 months 307 IPC (two times) R.I. for 5 years Rs. 1000/- Additional R.I. for 6 months. 302 IPC R.I. for life Rs. 1000/- Additional R.I. for 6 months. 2. Case of the prosecution, in short, is that on 25.09.2017, at 1:30 p.m. Tihari Bai (hereinafter referred to as 'the deceased'), Rambai (PW-4) (hereinafter referred to as 'the complainant'), Lokabai (PW-1) and Sonibai (PW-7) were having their lunch at their home. At that time, the accused/appellant entered their house, bolted the door from inside and when the deceased stopped him and tried to open the door, appellant brutally assaulted on the head and other parts of her body by iron pipe. On intervention by the complainant, Lokabai and Sonibai, appellant assaulted them also with the iron pipe. All the injured were taken to the Community Health Centre, Malkharoda. The deceased was referred to Jindal Hospital, Raigarh and from there, she was taken some other hospital for better treatment, however, on 30.09.2017, at about 11:45 a.m., the deceased succumbed to the injuries. 3. The first information report (Exhibit P/8) bearing Crime No. 156/2017 was registered on 25.09.2017 at about 14:45 p.m. at the instance of the complainant-Ram Bai Sahu (PW-4) wherein it was alleged that the as the appellant was having one-sided love affair with the complainant, he asked the complainant to elope with him but when the said incident came to the knowledge of the parents of the complainant, they abused him upon which the appellant, on the date of incident entered their house and assaulted the deceased and her daughters. The FIR was registered against the appellant for the offences punishable under Sections 452, 294, 506, 323 of the IPC. 4. The FIR was registered against the appellant for the offences punishable under Sections 452, 294, 506, 323 of the IPC. 4. During the course of treatment, the injured succumbed to the injuries on 30.09.2017 upon which Merg Intimation (Exhibit P/7) was recorded at about 12:45 p.m. by the police on the intimation given by Gopi Kishan Sahu (PW-5). 5. After investigating the matter, the police submitted the police report alongwith charge-sheet against the appellant/convict under section 452, 294, 506, 323, 307, 302 and 450 of the IPC and accordingly, the case was registered as Sessions Trial No. 01/2018. 6. The learned Second Additional Sessions Judge, Sakti, framed charge on 16.01.2018 charging the appellant/accused for the offence punishable under Section 450, 452, 323 (two counts) and 302 of the IPC. The accused/appellant denied the charges and prayed for trial. 7. Amongst others, the prosecution has exhibited the following documents in support of its case: Property Seizure Memo (Exhibit P/1) Spot Panchnama (Exhibit P/2) Spot Map (Exhibit P/3) Summons under Section 175 of Cr.P.C. (Exhibit P/4) Crime Details Form (Exhibits P/5 & P/6) Merg Intimation (Exhibit P/7) First Information Report (Exhibit P/8) Statement of Ku. 7. Amongst others, the prosecution has exhibited the following documents in support of its case: Property Seizure Memo (Exhibit P/1) Spot Panchnama (Exhibit P/2) Spot Map (Exhibit P/3) Summons under Section 175 of Cr.P.C. (Exhibit P/4) Crime Details Form (Exhibits P/5 & P/6) Merg Intimation (Exhibit P/7) First Information Report (Exhibit P/8) Statement of Ku. Ram Bai Sahu (Exhibit P/9) Inquest Report (Exhibit P/17) Memorandum & Duty Certificate(Exhibit P/18) Property Seizure Memo & Memo of Query Report (Exhibit P/19) Property Seizure Memo, Medical treatment documents of Tiharin Bai (Exhibit P/20) Query Report (Exhibit P/20A) Statement of Geeta Ram Sahu, Statement of Smt. Shanti Sahu, Memo for Query report & Bed Head Ticket of Soni Kumari (Exhibit P/21) Query report, Statement of Nand Kumar Sidar, Bed Head Ticket of Tiharin Bai Sahu & Bed Head Ticket of Loka Sahu (Exhibit P/22) Statement of Gurbin Sidar & Memo for furnishing of Spot Map (Exhibit P/23) Memo for FSL Report and FSL Report(Exhibit P/24) Receipt of Exhibits (Exhibit P/25) FIR Receipt (Exhibit P/26) Application for Medical examination of Ram Bai and Medical examination report (Exhibit P/27) Application for Medical examination of Soni and Medical examination report(Exhibit P/28) Application for Medical examination of Loka and Medical examination report (Exhibit P/29) Application for Medical examination of Tiharin Bai and Medical examination report (Exhibit P/30) Memo of query of injury of victims and Report (Exhibit P/31) Application for P.M. Report and P.M. Report (Exhibit P/32) Arrest/Court Surrender Memo (Exhibit P/33) Arrest Information (Exhibit P/34) Memo regarding providing of Spot Map (Exhibit P/35) Memo regarding providing of Bed Head Ticket of Tiharin Bai (Exhibit P/36) Memo to CMO K.G.H. regarding providing of Bed Head Tickets of Victims (Exhibit P/37) 8. In order to bring home the offence, prosecution examined as many as 21 witnesses namely: Loka Bai (PW-1): She is the sister of Ram Bai (PW-4) and Soni Bai (PW-7) and daughter of the deceased. She has narrated how the accused/appellant entered the house and assaulted them. Goplal (PW-2): He is the brother-in-law (Jija) of Ram Bai (PW-4). He states that he was acquainted with the accused by name and by face. He is the witness to summons under Section 175 Cr.P.C (Exhibit P/4) and the crime details form (Exhibit P/5 and P/6). He was declared hostile. Gopikishan Sahu (PW-3): He is the younger brother of Goplal (PW-2). He states that he was acquainted with the accused by name and by face. He is the witness to summons under Section 175 Cr.P.C (Exhibit P/4) and the crime details form (Exhibit P/5 and P/6). He was declared hostile. Gopikishan Sahu (PW-3): He is the younger brother of Goplal (PW-2). On the basis of information given by him, the merg intimation (Exhibit P/7) was recorded. He was also declared hostile. Ram Bai Sahu (PW-4): She is the daughter of the deceased and sister of Loka Bai (PW-1) and Soni Sahu (PW-7). She stated that she knew the accused who was also the resident of their village. She states that on the date of incident, one boy came to their house with whom she was not acquainted and that boy caused injuries to her mother, sister Loka Bai and Soni Sahu. On his complaint, the FIR (Exhibit P/8) was recorded and she is also the witness to the spot map (Exhibit P/5). She was also declared hostile. She has denied that the appellant/ accused used to love her or that the appellant/accused had ever told her that he would marry her. She further denied that the accused had ever entered their house and occurrence of the incident. Geetaram (PW-5): He is the resident of the same village and knew the accused. He is witness to the inquest (Exhibit P/4), the memorandum (Exhibit P/18) and the seizure memorandum (Exhibit P/19 and 20). He was also declared hostile. Nandkumar Sidar (PW-6): He is also the resident of the same village and knew the accused. He is also the witness to the memorandum (Exhibit P/18) and seizure memorandums (Exhibit P/19 and P/20). He was also declared hostile. Ku. Soni Sahu(PW-7): She is the sister of Loka Bai (PW-1) and Ram Bai Sahu (PW-4) and daughter of the deceased. She knew the accused who was also known as Bhola as he was their neighbour. She has narrated how the accused entered their house and committed the crime. She was also declared hostile in respect of some facts stated by this witness. Shanti Bai (PW-8): She is also one of the daughters of the deceased. She knew the accused. She states that she was informed over telephone that her mother and other sisters were assaulted by the accused. She was also declared hostile in respect of some facts stated by this witness. Shanti Bai (PW-8): She is also one of the daughters of the deceased. She knew the accused. She states that she was informed over telephone that her mother and other sisters were assaulted by the accused. She was informed by the villagers that her sister Ram Bai used to love the accused and after the death of her mother, Ram Bai (PW-4) went to reside with the accused. Gurbin Sidar (PW-9): He is the resident of the same village and he knew the accused. He is the witness to the summons under Section 175 Cr.P.C. and the inquest (Exhibit P/17). He was also declared hostile. Smt. Padma Yadav(PW-10): She is one of the Panch of the village. She knew the accused/appellant. She is also the witness to summons under Section 175 Cr.P.C. and the inquest (Exhibit P/17). She was also declared hostile. Mohanlal (PW-11): He is the witness to Exhibit P/1, property seizure memo. However, as he denied that anything was seized in his presence by the police, he was declared hostile. Smt. Jageshwari Sidar (PW-12): She knew the accused. She is also the witness to summons under Section 175 Cr.P.C. and the inquest (Exhibit P/17). Setram Patel (PW-13): He is the constable who was posted at Police Station Malkharoda at the relevant point of time. He had taken the dead body for postmortem. He had taken the clothes of the deceased to CHC, Malkharoda for examination. Hemant Kumar Dewangan (PW-14): He is the Patwari of Patwari Halka No. 27, village Bade Rabeli, Malkharoda. He had prepared the spot map (Exhibit PW-3). Ramayan Singh Kanwar (PW-15): He is also one of the Constable posted at Police Station Malkharoda. He had taken the seized articles to FSL, Bilaspur (Exhibit P/24). K.P.Gupta (PW-16): He is the investigating officer (for short, the IO) who had conducted the investigation. Badri Sahu (PW-17): He is the brother of the deceased. He states that he does not know the accused. When the deceased was admitted in the hospital and was in an unconscious condition, he had gone to see her. He was present at the time of Panchnama. This witness was also declared hostile. Shiv Sagar Madhukar (PW-18): This witness states that he knew the deceased as well as the accused. He states that he does not know the accused. When the deceased was admitted in the hospital and was in an unconscious condition, he had gone to see her. He was present at the time of Panchnama. This witness was also declared hostile. Shiv Sagar Madhukar (PW-18): This witness states that he knew the deceased as well as the accused. He is the witness to summons under Section 175 Cr.P.C. (Exhibit P/4) and the inquest (Exhibit P/17). S.N.Tandan (PW-19): He was posted as Assistant Sub Inspector during the relevant period. He had seized the clothes of the deceased on being presented by Smt. Loka Bai (PW-1) and prepared the seizure memo (Exhibit P/1). He had also collected the plain soil and blood stained soil (Exhibit P/19). He had also prepared the spot map (Exhibit P/5) and on 28.09.2017, he had recorded the statements of the witnesses Rambai Sahu, Lokabai Sahu, Ku. Soni Sahu, Goplal Sahu, Shanti Sahu, Nand Kumar Sidar, Geetram Sahu and Gurbin Sidar. Dr. Santosh Kumar (PW-20): He is the Doctor who was posted as Medical Officer at K.G.H. Kirodimal Hospital, Raigarh. He had admitted the deceased on 25.09.2017 at about 8:00 p.m. He had treated the deceased while she was admitted. He had discharged the deceased on 29.09.2017. Dr. Krishna Sidar (PW-21): He was posted as Medical Officer at Community Health Center Malkhroda. He had examined the injured Soni Sahu (PW7), Loka Bai (PW-1) and Ram Bai (PW-4) and the deceased Tiharin Bai and prepared MLC report. He had also conducted the postmortem of the deceased (Exhibit P/32). 9. The statement of the accused under section 313 CrPC was recorded on 09.12.2021. He stated that he was innocent and has been falsely implicated in this case. In his defence, he got the statements of Loka Bai (PW-1) and Ku. Soni Sahu (PW-7) exhibited as Exhibit D/1 and D/2, respectively. 10. The learned First Additional Sessions Judge, after considering the evidence on record, convicted the appellant/accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict. 11. The present appeal was filed on 11.03.2022 and on 15.03.2022, the matter was admitted for hearing. On 18.07.2023, the application for suspension of sentence and grant of bail filed by the appellant/convict was rejected and the matter was directed to be listed for final hearing after six weeks. Hence, the present appeal by the appellant/convict. 11. The present appeal was filed on 11.03.2022 and on 15.03.2022, the matter was admitted for hearing. On 18.07.2023, the application for suspension of sentence and grant of bail filed by the appellant/convict was rejected and the matter was directed to be listed for final hearing after six weeks. Accordingly, the matter was heard finally on 28.11.2023. 12. Ms. Sareena Khan, learned counsel for the appellant/convict submits that the alleged eye-witnesses are the daughters of the deceased and interested witness and as such, their statements should be scrutinized with great care and caution. Ram Bai (PW-4) has stated that some unknown person had attacked them and not supported the prosecution case. The seizure witnesses have also turned hostile and not supported the prosecution case. There is no report of the Serologist showing that human blood was detected on the alleged weapon of assault. Even the motive to commit the crime in question has not been established properly. As there was a love affair between the appellant and Ram Bai i.e. the daughter of the deceased, he has been falsely implicated. She further submits that even if the prosecution story is taken to be true, at the most the case falls under Section 304 Part I or Part II of the IPC as the prosecution witnesses have themselves stated that the appellant was in a drunken condition and he had no intention to cause death of the deceased and as such, the appeal deserves to allowed. 13. On the other hand, Mr. Avinash K. Mishra, learned Government Advocate would submit that the prosecution has fully established that it was the appellant alone who had committed the crime in question. Minor variations in the deposition of the witnesses cannot shake the credibility of the statement of the witnesses. The medical evidence clearly supports the case of the prosecution. The judgment of conviction and sentence awarded by the learned trial Court needs no interference. 14. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 15. The first question for consideration would be, whether death of deceased Tiharin Bai was homicidal in nature? 16. The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 15. The first question for consideration would be, whether death of deceased Tiharin Bai was homicidal in nature? 16. The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr. Krishna Sidar (PW-21) who conducted postmortem, has come to the conclusion that immediate cause of death was cardio-respiratory arrest due to brain hemorrhage with hypovolemic shock due to excessive blood loss and the death was homicidal in nature. There is no reason to disbelieve the version of the Doctor and as such, we are of the considered opinion that the finding recorded by the trial Court that death of deceased 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. 17. Now, the next question for consideration would be whether the accused-appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimony of eyewitness Loka Bai (PW-1), Ram Bai (PW-4) (though she was declared hostile), and Soni Sahu (PW-7). Loka Bai and Soni Sahu have clearly deposed that the appellant/convict entered their house and assaulted them with an iron rod and an iron pipe (Fukni) and caused injuries to them and the deceased and from their testimony, it is clear that it is the appellant herein who on the fateful date and time caused injuries to them alongwith the deceased. As such, the learned trial Court has rightly held that it is the appellant-accused who had caused injuries over the body of the deceased and the injured. Accordingly, we hereby affirm the said finding. 18. 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 their conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellants ? 19. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 has observed as under:- “21. 19. 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.” 20. 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.” 21. 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. 22. 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”. 23. 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. 24. 24. 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.” 25. The witness Loka Bai (PW-1) in her statement has deposed that the appellant entered their house in a drunken condition. He caught hold of the hand of her sister Ram Bai (PW-4) and when her mother i.e. the deceased and Soni tried to rescue her from him, he started assaulting the deceased and Soni Sahu with an iron rod. Another fact of the matter is that the incident is said to have taken place on 25.09.2017 and the deceased succumbed to the injuries after five days i.e. on 30.09.2017 while she was being taken to some other medical facility centre for better treatment. 26. So far as the weapon of assault is concerned, had the appellant intended to kill the deceased, he would have entered the house armed with some deadly weapon, however, in the instant case, the weapon of assault is an iron pipe (Fukni) which is used for lighting the earthen hearth which is found in all the village houses. 27. 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 Loka Bai (PW-1), on the date of incident, the appellant came to the house of the deceased and caught hold of the hand of Ram Bai (PW-4) and when protested by the deceased and Loka Bai, they were being assaulted by the appellant who was stated to be in a drunken condition. It appears that the appellant was having love affair with Ram Bai (PW-4) as she, in order to save the appellant, had stated that some unknown person who had covered his face, entered the house and committed the crime in question. When the appellant/ convict was objected to by the deceased and Loka Bai (PW-1) and Soni Sahu (PW-7), he got infuriated and all of a sudden, started assaulting them with an iron rod and iron pipe because of which they received grievous injuries out of which the deceased died after five days of the incident. There was no premeditation on the part of the appellant to cause death of deceased Tiharin Bai and only because of the objection to the relationship between Ram Bai Sahu (PW-4) and the appellant, the scuffle took place. As the appellant was in a drunken condition, the appellant did not have any intention to cause death of the deceased Tiharin Bai but by causing such injuries, he must have had the knowledge that such injuries inflicted by him would likely to cause death of the deceased and as such, his 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. Had the appellant intended to cause murder of Tiharin Bai, he would have eliminated her two daughters also so that there would have been no eye-witness to the incident. However, that is not the case herein. As such, it could be safely said that the appellant did not had the intention to kill the deceased. 28. Considering the above-stated facts, also considering the evidence of eyewitness Loka Bai (PW-1), Ram Bai Sahu (PW-4) and Ku. Soni Sahu (PW-7) who are the daughters of the deceased and taking into consideration the fact that he is in jail since the date of his arrest i.e. 29.09.2017, 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. 29. Soni Sahu (PW-7) who are the daughters of the deceased and taking into consideration the fact that he is in jail since the date of his arrest i.e. 29.09.2017, 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. 29. 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. 30. As the appellant is stated to be in jail, he shall serve out the remaining sentence as modified by this Court. 31. The criminal appeal is partly allowed to the extent indicated herein-above. 32. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.