JUDGMENT : Goutam Bhaduri, J. 1. The present appeal is against the judgment of conviction and order of sentence dated 13-12-2019 passed in Sessions Trial No.123/2018 by the Additional Sessions Judge, Second Fast Track Special Court (POCSO Act), Durg, whereby the appellant has been convicted under Section 302 of the Indian Penal Code (for short ‘the IPC’) and sentenced him to undergo life imprisonment with usual default stipulations. 2. Filtering the unnecessary details, the prosecution case is that PW-7 Kamdev Kosle made an oral report at police station Amlidih that on 7-5-2018 the accused came to his house; stated that he has assaulted his wife namely; Gouri Bai (since deceased); she was lying on the floor; and he does not know whether she was alive or dead. The accused asked PW-7 Kamdev Kosle to take him to police station. Subsequently, said PW-7 Kamdev Kosle along with one Hemant Dahre went to the house of accused and saw that his wife was lying on the floor in a pool of blood with severe injuries. The wall and floor were also having bloodstains. The said oral report of PW-7 Kamdev was recorded in the rojnamacha sanha; thereafter dehati merg was registered; and after the inquest, the dead body was sent for postmortem. Memorandum of the accused was recorded and the weapon used i.e. wooden handle of Pickaxe ¼dqnky½ was recovered and after recording the statements of witnesses charge sheet was filed. 3. After due investigation, the appellant was charge sheeted before the jurisdictional criminal Court and charge sheet was filed against the appellant under Section 302 of the IPC. Thereafter, the case was committed to the Court of Sessions from where the learned Additional Sessions Judge, Second Fast Track Special Court (POCSO Act), Durg, received the case on transfer for trial. 4. During trial the appellant/accused abjured his guilt and claimed to be tried. In order to prove its case, the prosecution examined as many as 15 witnesses and exhibited 38 documents. Appellant in his examination under Section 313 CrPC has raised a defence that PW-7 Kamdev Kosle was having illicit relation with his wife, therefore, he has been falsely implicated in the crime. 5. Upon appreciation of facts and evidence, the trial Court came to a finding that the appellant has committed the offence and convicted & sentenced him as mentioned supra. Thus, this appeal. 6. 5. Upon appreciation of facts and evidence, the trial Court came to a finding that the appellant has committed the offence and convicted & sentenced him as mentioned supra. Thus, this appeal. 6. (i) Learned counsel appearing for the appellant would submit that the entire case of the prosecution is based on the evidence of PW-7 Kamdev Kosle and the timing of recovery, memorandum as also the dehati nalishi. He would further submit that when the dead body was found, as per the inquest report, the appellant was not present on the spot. It is on the statement of PW-7 Kamdev the appellant has been inculpated. He would also submit that statement of PW-7 Kamdev would show that the appellant was having injury on his head and was not mentally fit and taking advantage of it, PW-7 Kamdev, who was having some affair with the deceased, the appellant has been falsely implicated. He would submit that as per the memorandum of the accused only the wooden handle of pickaxe was disclosed, which was alleged to be used for the offence, but in the seizure, on the basis of memorandum, in addition to such wooden handle of pickaxe, the bloodstained clothes were recovered. (ii) Learned counsel would submit that when the appellant went to the house of PW-7 Kamdev to inform about the incident, as per the prosecution, no bloodstains were present on his clothes and, therefore, such state of affair would be highly improper to accept in the given set of fact that after killing wife the appellant would change his clothes then will roam around. He would submit that even the bloodstains which were said to have found on the clothes of the appellant the group was not matched and in absence of any eyewitness when the appellant was not present in the house the prosecution only dependent on the circumstantial evidence. Consequently, the benefit of doubt should have been given to the appellant. He would also submit that the postmortem report do not show that the death was homicidal in nature. Learned counsel would also submit that the entire case of the prosecution is based on presumption and hence no conviction could have been passed on this evidence. Therefore, the appeal deserves to be allowed by setting aside the impugned judgment of conviction and order of sentence. 7. Learned counsel would also submit that the entire case of the prosecution is based on presumption and hence no conviction could have been passed on this evidence. Therefore, the appeal deserves to be allowed by setting aside the impugned judgment of conviction and order of sentence. 7. Learned counsel appearing for the State, per contra, would submit that the statement of PW-7 Kamdev, to whom the extra judicial confession was made by the accused, is corroborated by the Investigating Officer PW-14 A.R. Sahu, He would submit that there is no inconsistency in the statement and the presence of bloodstains on the clothes has not been properly explained. He would also submit that the impugned judgment is well merited, which do not call for any interference of this Court. 8. We have heard learned counsel for the parties and perused the record. 9. There is no eyewitness to the incident. According to the prosecution, the appellant, who is the husband of the deceased, went to the house of PW-7 Kamdev and stated that he has assaulted his wife and he may be handed over to the police. PW-7 Kamdev, in turn, asked that why he should handover to the police and thereafter he received a phone call from Amleshwar Police Station, who stated that the appellant has come to police station and has stated that he had killed his wife. 10. The Investigating Officer PW-14 A.R. Sahu would depose that on 7-5- 2018 he received information from PW-7 Kamdev, which was recorded in the rojnamacha sanha (Ex.P/17), which shows that the information was recorded that PW-7 Kamdev has reported that the appellant has disclosed that he has killed his wife. The time is reported to be 1.05 pm. Thereafter, the police officer reached to the spot and naksha panchayatnama (Ex.P/2) was prepared. Perusal of the same would show that the dead body of the wife of the appellant was lying inside the room of a house. Map of the said place of incident is Ex.P/13, which is proved by PW-11 Udayram Sonde. It would show that the room wherein the incident happened was inside the house. 11. Perusal of the same would show that the dead body of the wife of the appellant was lying inside the room of a house. Map of the said place of incident is Ex.P/13, which is proved by PW-11 Udayram Sonde. It would show that the room wherein the incident happened was inside the house. 11. PW-6 Ramadhar Yadav stated that on the date of incident the appellant was in house and PW-5 Pooja Sahu, daughter of the appellant and the deceased, also stated that on the date of incident her father was in the house and according to her after having received the information she went there; saw that there was a crowd; and her mother was lying dead inside the room. 12. PW-3 Deepa Kosle, wife of PW-7 Kamdev, stated that she is a Sarpanch of Amlidih. At about 12.00 noon the appellant came to their house and stated that he has assaulted his wife brutally and she might have died and asked her husband to take him to the police station. Thereafter, she went to the house of the appellant and saw the dead body. Statement of PW-3 Deepa and PW-7 Kamdev, who are independent witnesses, to whom the appellant made extra judicial confession at the first instance, has not been negated in the crossexamination. 13. PW-2 Neera Bai, Kotwar, deposed that she received a phone call from the police that the appellant has come to the police station and stated that he has assaulted his wife and also stated that probably she might have died and asked her to go to the house of the appellant. Thereafter, she went to the house of the appellant and saw that Gouri Bai, wife of the appellant, was dead and the dead body was lying inside the room and immediately she called the police and informed the incident to other family members. The cross-examination of the witness also do not eliminate those facts. 14. All the statements of the witnesses are consistent on the issue which has relevance to the proximity of time that in between 11.30 am to 12.30 pm the incident happened and at that relevant time the appellant went to the house of villagers and informed about the incident and thereafter he went to the police station and informed that he has assaulted his wife. The place of incident since was in the house of the appellant no explanation has been given instead in the statement under Section 313 CrPC the appellant stated that he has seen PW-7 Kamdev was running away and the accused further stated that Kamdev went to his house and might have killed his wife and this fact has not been narrated or has been suggested in the cross-examination. It is only narrated in the statement recorded under Section 313 CrPC and, as such, it is manifest that the appellant has tried to develop the new plea. 15. It is the well settled proposition of law that if the accused does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. (See: Balvir Singh v State of Uttarakhand, 2023 SCC OnLine SC 1261). 16. Though the extra judicial confession may be the week evidence, but the statement made before PW-3 Deepa and PW-7 Kamdev after the appellant committed the offence, they have not been negated in the cross-examination. Further the inquest report would show that immediately after the incident the villagers went to the house of the appellant and saw the dead body of his wife. 17. Thereafter, the dead body was sent for postmortem. Postmortem report is Ex.P/14, which is proved by PW-12 Dr. Subrat Nandi. According to him, the ribs were broken and pierce to the lungs, which caused heavy bleeding and because of failure of cardio respiratory, the deceased died. The death was not normal, but was because of injury on the chest, as one rib pierced to the lungs. 18. The submission of the learned counsel for the appellant that the death is not homicidal is otherwise negated. Reading of the postmortem report (Ex.P/14) albeit it may not have been stated in specific word, but the injury which had shown in the postmortem would reflect the nature of injury and cause of death and, as such, it can be conclusively held that the death was homicidal in nature. The accused was subsequently arrested and the memorandum was recorded on 7-5-2018 at 16.15 hrs. vide Ex.P/4. On his memorandum, the wooden handle of pickaxe was also recovered, which was having blood. The accused was subsequently arrested and the memorandum was recorded on 7-5-2018 at 16.15 hrs. vide Ex.P/4. On his memorandum, the wooden handle of pickaxe was also recovered, which was having blood. Apart from that the full pant and shirt was also recovered vide Ex.P/6 from the appellant and from the spot the bloodstained soil, plain soil and broken bangles were also recovered vide Ex.P/5. The weapon i.e. wooden handle of pickaxe was sent for query. The query report is Ex.P/15. PW-12 Dr. Subrat Nandi stated that the injury on the body of the deceased could have been caused by such wooden handle and the said injury could have caused the death, therefore, the weapon, which was used, was proved in positive that by such weapon the injury could have been caused. 19. The articles so seized were sent for FSL. FSL report is Ex.P/35. Human blood was found on full pant ‘D’, the wooden handle of pickaxe ‘F’ apart from the garments and soil recovered from the spot. Though the blood group has not been stated but how the T-shirt of the accused was having human blood remains unexplained. After arrest the accused was subjected to medical check up and as per the MLC report Ex.P/16, which is proved by PW-13 Dr. Bhagwat Deshlahre no injuries were found on his body, therefore, the blood which was found on the full pant and the wooden handle, which were recovered at the instance of the accused along with T-shirt ‘E’ has not been explained. 20. The Supreme Court in the matter of State of Andhra Pradesh v Kanda Gopaludu, AIR 2005 SC 3616 considered this aspect to hold that when the incriminating material against the seizure of shirt stained with blood and FSL report shows that it is a human blood, then it would be an incriminating circumstances and further as has been held in Ganga Bai v State of Rajasthan, (2016) 15 SCC 645 , the appellant should have explained how the clothes and articles seized from them contained human blood and in Section 313 CrPC, the question is with respect to FSL, no explanation was offered and it was only denial. 21. In view of the evidence, which was brought to fore, the prosecution was able to prove the incident and the author of it. 21. In view of the evidence, which was brought to fore, the prosecution was able to prove the incident and the author of it. The evidence which has come on record would show that there was no dispute in between the couple i.e. the appellant and the deceased. As per the prosecution, on 7-5-2018 because of certain demand, which was not fulfilled by the wife, she was assaulted by the wooden handle of pickaxe, which was normally available in the village. After the incident the appellant went to the house of PW-3 Deepa and PW-7 Kamdev to remorse and asked them to handover him to police. The incident appears to be on the sudden quarrel, which triggered without premeditation of mind. 22. The Supreme Court has laid down certain parameters in the case of Arjun and another v State of Chhattisgarh, (2017) 3 SCC 247 to evaluate whether the case would fall under the Exception 4 to Section 300 IPC. The Supreme Court held thus at paras 20 to 23 : “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, 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 is it 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 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. Where, on a sudden quarrel, a person in the heat of 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, 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 with 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 and 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 provision means “unfair advantage”. 22. The accused, as per the version of PW 6 and eyewitness account of other witnesses, had weapon in their hands, but the sequences of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no premeditation. 22. The accused, as per the version of PW 6 and eyewitness account of other witnesses, had weapon in their hands, but the sequences of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no premeditation. Injuries as reflected in the postmortem report also suggest that appellants have not taken ‘undue advantage” or acted in a cruel manner. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 Exception 4 IPC. 23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e., right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellant under section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 02.03.2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed for the modified conviction under Section 304 Part IPC, the sentence is modified to that the period already undergone.” 23. When there is an intention and knowledge on the part of the accused, then the offence would fall under Section 304 Part I of the IPC and if there is only knowledge and no intention to cause murder and bodily injury, then, the offence would fall under Section 304 Part-II of the IPC. Thus, considering the facts and circumstances of the case and more particularly that the accused inflicted the injury with a weapon like wooden handle of pickaxe, it can be presumed that by causing such bodily injury, the accused knew that he was having knowledge that such bodily injury can be caused but was no intention to cause death. Thus, considering the facts and circumstances of the case and more particularly that the accused inflicted the injury with a weapon like wooden handle of pickaxe, it can be presumed that by causing such bodily injury, the accused knew that he was having knowledge that such bodily injury can be caused but was no intention to cause death. Therefore, the case would fall under Section 304 Part I of the IPC. 24. Accordingly, we allow the appeal in part. Conviction and sentence imposed on the appellant under Section 302 of the IPC are hereby set aside and instead he is convicted under Section 304 Part I of the IPC and sentenced to undergo RI for ten (10) years. The fine amount and the default sentence imposed by the trial Court shall remain unaltered.