JUDGMENT : Per Rajani Dubey, J. 1. Since both the appeals arise out of the same judgment of conviction and order of sentence, therefore, they are heard together and are being decided by a common order. 2. The present appeals are directed against the judgment of conviction and order of sentence dated 10.02.2020 passed by the learned 2nd Upper Session Judge, Rajnandgaon (C.G.) in Session Trial No.31/2018, whereby the appellants have been convicted and sentenced in the following manner:- Sr. Conviction Sentence 1. u/S 120-B of IPC Life imprisonment and fine of Rs.200 and in default of payment of fine, additional RI for 3 months 2. u/S 302 of IPC Life imprisonment and fine of Rs.200 and in default of payment of fine, additional RI for 3 months 3. u/S 201 of IPC RI for 3 years and fine of Rs.200 and in default of payment of fine, additional RI for 3 months All the sentences shall run concurrently. 3. The prosecution case, in brief, is that on 17.03.2018, the appellant Anita Dewangan lodged a report before the concerned police station stating that her grandmother (Nani) Mahetarin Bai has gone somewhere without informing and is missing, upon which a case was registered. During investigation, it was found that there was love affair between the appellant Anita and appellant Virendra Banjare, which had come into the knowledge of the deceased Mahetarin Bai and she did not like their relationship. On 14.03.2018, the appellant Virendra went to the home of the appellant Anita at 1:30 pm when the deceased was not at home. At 3:30 pm, when the deceased reached the home, she found them in an objectionable condition and scolded them, upon which the appellants got outraged and assaulted her by a bamboo stick (danda) on her head, as a result of which she received grievous injuries on her head and the blood was oozing from her head and the same also spilled in the room, thereafter the appellants buried her near north side of the house beneath the tree and got burnt and thereafter covered soil on the same. During investigation, the dead body was unearthed and recovered from the spot and the dead body was identified as deceased Mahetarin by her daughter Rukhmani Bai and thereafter panchnama was prepared and the dead body was examined. During investigation, the dead body was unearthed and recovered from the spot and the dead body was identified as deceased Mahetarin by her daughter Rukhmani Bai and thereafter panchnama was prepared and the dead body was examined. Based on the memorandum of the accused, clothes, stick and other evidence were collected and seized. The appellants were arrested and after investigation, the charge sheet was filed before the Court concerned. 4. During the course of trial, the appellants abjured the guilt and claimed to be tried. The prosecution examined as many as 18 witnesses to prove its case and exhibited 47 documents, whereas defence did not examine any witness in its favour. The learned Trial Court after evaluating the evidence convicted the appellants for the aforesaid offence, as mentioned in para 1 of the judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that impugned judgment is based only on circumstantial evidence and there is no eye witness in the present case. The prosecution has failed to establish the guilt of the accused beyond reasonable doubt. Though prosecution has seized the weapon from the possession of appellant but there is no evidence that the seized weapon belongs to appellants. The chain of circumstances has also not been completed. The postmortem report is suspicious and doctor has failed to establish cause of death and nature of death. The learned Trial Court has failed to consider that appellant Anita herself lodged the missing report of deceased and supported the investigation. According to medical evidence, only one injury has been found in dead body which is not sufficient for cause of death, moreover effective participation of the appellants is suspicious. Therefore, appeals deserve to be allowed. 6. Per contra, learned State counsel supports the impugned judgment and submits that the dead body was recovered on the memorandum of the appellant Virendra Banjare and murder weapon (club) was recovered on the instance of memorandum of appellant Anita and human blood was found in the FSL report. The prosecution has proved its case beyond reasonable doubt so the learned Trial Court has rightly convicted the appellants. The prosecution has proved its case beyond reasonable doubt so the learned Trial Court has rightly convicted the appellants. It is also proved by the prosecution witnesses that both the appellants were in love relationship, which came to the knowledge of the deceased Mahetarin Bai, as such they killed her and buried her dead body in courtyard of the house so the prosecution has proved its case beyond reasonable doubt and the learned Trial Court has rightly convicted the appellants. Therefore, the appeals deserve to be dismissed. 7. We have heard learned counsel for the parties and perused the material available on record. 8. It is clear from the record of the learned Trial Court that the prosecution examined 18 witnesses and exhibited 47 documents. Smt. Rukhmani Bai (PW-4) is the daughter of deceased Mahetarin Bai and aunt of appellant Anita Bai. She denied her signatures on identification panchnama (Ex-P/5). The prosecution declared her hostile and cross-examined her but she denied all suggestions of prosecution. Kumhlal Dewangan (PW-5) stated that Virendra had stated in front of police personnel that he assaulted Mahetarin Bai by lathi (stick) and thereafter she was burnt and buried. The Police exhumed the dead body from the place where Virendra had pointed out and the villagers identified the dead body as Mahetarin Bai. He admitted his signatures in notice (Ex-P/7), Panchnama (Ex-P/8), body recovery memorandum (Ex-P/9), pit panchnama (Ex-P/10), body identification panchnama (Ex-P/5), inquest panchnama notice (Ex-P/1), inquest memo (Ex-P/2). On some points the prosecution declared him hostile and cross-examined him and he admitted that Virendra told before Police that he was in love affair with Anita and also told the Police that they got married in Dongargarh Temple. He denied this suggestion that Virendra told before Police that he assaulted Mahetarin Bai and she died and thereafter was burnt and buried, but in para 9, he admitted this suggestion that after burying the dead body, soil was covered on the dead body and he also admitted that all procedures were conducted before Naib Tahsildar. The defence cross-examined him but in his long cross-examination, he remained firm on this point that the body was recovered at the instance of Virendra. The other witness Dayal Das Sahu (PW-6) did not support the prosecution case but he admitted his signature on memorandum of Virendra (Ex-P/11) and memorandum of Anita (Ex-P/12) from B to B part. The defence cross-examined him but in his long cross-examination, he remained firm on this point that the body was recovered at the instance of Virendra. The other witness Dayal Das Sahu (PW-6) did not support the prosecution case but he admitted his signature on memorandum of Virendra (Ex-P/11) and memorandum of Anita (Ex-P/12) from B to B part. He denied any seizure and he admitted his signature on seizure memo (Ex-P/13 & P/17). The prosecution declared him hostile and cross-examined him but he denied all suggestions of prosecution. The Executive Magistrate Preeti Larokar (PW-17) stated that she received order of the SDM for body exhumation vide Ex-P/29 and she went Village Kanketara on 18.03.2018 and before her, in presence of all witnesses and Police Officer, exhumation was done. The exhumation panchnama is Ex-P/8 and she admitted her signatures on C to C part. The Police prepared body recovery panchnama of Mahetarin Bai vide Ex-P/9 and she admitted her signature on C to C part. The body was identified by witnesses. As per identification panchnama (Ex-P/5), she admitted her signature on D to D part and she prepared inquest memo (Ex-P/2) and admitted his signature on F to F part. In her cross-examination, nothing came out to disbelieve the proceedings done by her and the same was also corroborated by the Investigating Officer Sagar Pathak (PW-18). He also stated that on 17.03.2018 Ku. Anita lodged FIR and lodged missing report of her grandmother and for investigation of this missing report, he went Village Kanketara and then it came to his knowledge that there was love affair between Virendra and Anita, then he enquired from them, upon which they told about murder of deceased and her dead body. Thereafter body of Mahetarin Bai was sent for postmortem and as per Dr. Datta Sorte (PW-10), who conducted postmortem of deceased on 18.03.2018 opined that the body of the deceased was in decomposed putrefaction situation, the eyes were swollen and were coming out, tongue was also swollen and was coming out of the mouth. In the external examination, he found deep burn in the body of the deceased. The face of the deceased was in swollen condition. The aforesaid symptoms were of postmortem burn. In the internal examination, he found dark contusion under the head and the head bone was in a broken condition. In the external examination, he found deep burn in the body of the deceased. The face of the deceased was in swollen condition. The aforesaid symptoms were of postmortem burn. In the internal examination, he found dark contusion under the head and the head bone was in a broken condition. The size of contusion was of 6x4 cm and the blood clot was found and the internal surface of base of skull was found to be broken. The other body parts had become soft due to decomposition. The cause of death was opined to be phraneoceribral injury. He found postmortem burn and gave his report vide Ex-P/23. In his cross-examination, nothing has come out to negate the same so the prosecution has proved this fact beyond reasonable doubt that the body of Mahetarin Bai was recovered at the instance of Virendra and cause of death is burn injury and post injury was also found in the dead boy of Mahetarin Bai. 9. Now we have to consider this fact that whether the prosecution has proved this fact that both the accused have killed Mahetarin Bai and buried her dead body. 10. Smt. Pushpa Sahu (PW-2) has stated that Anita Bai lodged missing report in the concerned police station that her grandmother Mahetarin Bai was kidnapped. The Police came for investigation and she also stated that Virendra told before Police that Anita and Virendra have committed murder of Mahetarin Bai. Smt. Pushpa Sahu admitted her signature on the inquest notice (Ex-P/1) and inquest memo (Ex-P/2). Smt. Rukhmani Bai (PW-4) has not supported the prosecution case. Kumhlal Dewangan (PW-5) stated in para 5 of his cross-examination that Virendra admitted this fact that he was in love affair with Anita and they got married at Dongargarh Temple. Sangita Lahre (PW-9) also stated in her examination-in-chief that Virendra and Anita were in love affair and it was heard that they got married at Dongargarh Temple. When defence suggested that in Village everyone goes with each other in motorcycle, then she stated that they were in love affair and used to ride in motorcycle so it is proved by the prosecution that both the appellants were in love relation. Kumhlal Dewangan (PW-5) admitted his signature on the memorandum of Anita Bai (PW-12) and stated that Police seized cloths, gainti, rapa. Kumhlal Dewangan (PW-5) admitted his signature on the memorandum of Anita Bai (PW-12) and stated that Police seized cloths, gainti, rapa. As per seizure memo (Ex-P/13), all articles were sent for forensic lab and in the FSL report (Ex-P/45), human blood was found in Article-F club, Article H & I clothes of Anita and Anita also did not explain in her statement about the same. 11. It is also clear from missing report (Ex-P/25) that Anita and deceased Mahetarin Bai were living in same house and on 17.03.2018, Anita lodged missing report that her grandmother was sleeping with her in a room and when she woke up at 3:30 am, then her grandmother was not there, thereafter report was lodged on 17.03.2018 at 12:45 pm and body of Mahetarin Bai was recovered in presence of the Executive magistrate and villagers on 18.03.2018. The dead body panchnama was prepared on 18.03.2018 at 10:15 am and body was recovered on 18.03.2018 at 10:30 am so it is clear that the deceased Mahetarin Bai was living with Anita Bai and she lodged missing report and on very next day body was recovered near her house. 12. It is clear that the prosecution has proved this fact beyond reasonable doubt that both the appellants killed Mahetarin Bai and to escape from the same, body was concealed so the learned Trial Court rightly found that both the appellants killed Mahetarin Bai. 13. Learned counsel for the appellants have argued that as per report of doctor, only one injury was found in the body of deceased Mahetarin Bai and as per memorandum of Virendra, when both the appellants were in compromise position, the deceased Mahetarin Bai saw them and started crying and abusing, then as a sudden provocation, they assaulted her on her head, as such it is clear that the act of both the appellants were not premeditated. 14. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 has observed as under:- “21. 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. 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 in the present case, the incident happened when the deceased Mahetarin Bai saw the appellants in an objectionable condition, then she started crying and abusing and on a sudden provocation and out of anger, the appellants assaulted her on her head by bamboo stick, as a result of which she received severe injuries on her and thereafter died. The appellants did not have any intention to cause death of deceased Mahetarin Bai, but by causing such injuries, they must have had the knowledge that such injuries inflicted by them would likely to cause death of deceased, as such their 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. 21. Taking into consideration the above factual as well as legal matrix, end of justice would meet if the conviction of the appellants under Section 302 of the IPC is altered/converted to Section 304 Part-II of the IPC. Accordingly, the conviction of the appellants under Section 302 of the IPC is set aside, however they are convicted under Section 304 Part-II of the IPC and sentenced to undergo RI for 10 years. 22. Accordingly, the conviction of the appellants under Section 302 of the IPC is set aside, however they are convicted under Section 304 Part-II of the IPC and sentenced to undergo RI for 10 years. 22. Since the act of the appellants assaulting the deceased was spur of the moment on account of sudden provocation, as such the offence under Section 120-B of IPC is not made out against them. Accordingly, the appellants are acquitted of the charges under Section 120-B of IPC, however their conviction under Section 201 of IPC is maintained. 23. In the result, both the appeals are allowed to the extent indicated herein-above.