JUDGMENT : Sanjay Kumar Jaiswal, J. 1. Invoking jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, 1973 the Appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 31.1.2020 passed by the Additional Sessions Judge (FTC), Baikunthpur at Korea, Chhattisgarh in Sessions Case No.10 of 2019 by which he has been convicted and sentenced as under: Conviction Sentence Under Section 302 of the Indian Penal Code Life imprisonment and fine of Rs.5000, in default of payment of fine, additional imprisonment for 6 months Under Section 307 of the Indian Penal Code Rigorous imprisonment for 10 years and fine of Rs.5,000, in default of payment of fine, additional imprisonment for 6 months 2. According to the case of prosecution, the Appellant and injured are husband wife. Deceased Hansi Bai was mother-in-law of the Appellant. They were living separately. Injured wife was living at her maternal house with her child and other family members at Adarsh Chowk, Patna. The Appellant was residing at Village Jhilmili, Bhaiyathan. Generally there had been quarrel between husband and wife on the pretext that injured wife should live with the her husband/Appellant at Village Jhilmili. On 6.4.2018 the Appellant came to her in-laws’ house. At around 8 p.m., they all had food etc. and went to sleep. Injured slept with her son and deceased in separate room, and the Appellant with her nephew in another room. In and around midnight the Appellant woke up and started abusing the injured by pressing her neck. She resisted and cried for help. Then the Appellant went out side and brought an axe. She tried to close the door but could not succeed, as the Appellant opened with force of leg. The Appellant caused her injury with the said axe on head, ear, thigh, neck, hand etc. Looking to the situation, the deceased started shouting for help and resisted, to stop such assault, on which the Appellant pushed her on bed and assaulted her with such axe on her neck, resulting into her death due to said neck injury. 3. Based on information of the incident, First Information Report (Ex.P8) for offences punishable under Sections 302 and 307 of the Indian Penal Code was registered against the Appellant. Investigation was carried out. The Appellant was apprehended. Site map was got prepared. 3. Based on information of the incident, First Information Report (Ex.P8) for offences punishable under Sections 302 and 307 of the Indian Penal Code was registered against the Appellant. Investigation was carried out. The Appellant was apprehended. Site map was got prepared. Statements of witnesses were recorded. Proceedings of recording memorandum statement and seizure were carried out and upon completion of other investigational aspects, a charge-sheet for offences punishable under Sections 302 and 307 of the Indian Penal Code was filed. The Trial Court framed charges under Sections 302 and 307 of the Indian Penal Code against the Appellant. 4. To rope in the Appellant, the prosecution examined as many as 10 witnesses and exhibited 24 documents. In examination under Section 313 of the Code of Criminal Procedure, the Appellant denied the guilt and pleaded innocence. In defence, he did not examine any witness. 5. On completion of the trial, vide the impugned judgment, the Trial Court convicted and sentenced the Appellant as mentioned in first paragraph of this judgment. Hence, the instant appeal. 6. Learned Counsel appearing for the Appellant submits that the Appellant has been falsely implicated in the crime in question and he has been convicted by recording a finding which is perverse to the record. He further submits that if the case of the prosecution is taken as it is, it would be a case, at the most, of commission of offence under Section 304 Part-II of the Indian Penal Code and the Appellant is in jail since 26.9.2018, i.e., for about 6 years, and, as such, it is a case where conviction of the Appellant for offence under Section 302 IPC can be converted/altered to offence under Section 304 Part-II IPC. Thus, the present appeal deserves to be allowed in full or in part. 7. Per contra, Learned Counsel appearing for the Respondent/State, supporting the impugned judgment, submits that the prosecution has been able to prove the offences under Sections 302 and 307 IPC beyond reasonable doubt and the Trial Court has rightly convicted the Appellant for the said offences and the present is not a fit case for alteration of the offence from Section 302 IPC to Section 304 Part-II IPC where the conviction of the Appellant could be modified for lesser offence. Hence, the appeal deserves to be dismissed. 8. Hence, the appeal deserves to be dismissed. 8. We have heard the rival contentions put-forth on behalf of the parties and perused the evidence available on record with utmost circumspection. 9. The first and foremost question for consideration is whether the death of Hansi Bai was homicidal in nature, which has been answered by the Trial Court in affirmative relying upon the post mortem report (Ex.P16A) proved by Dr. Shreshth Mishra (PW10), which, in our considered opinion, is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding. 10. Now, the question for consideration would be whether the Appellant assaulted his mother-in-law Hansi Bai (the deceased) and wife Sarita? 11. The Trial Court in paragraph 17 of its judgment has held that on the date of offence, due to a dispute with his wife Sarita (PW3) with regard to living with him at his place, the Appellant, out of anger, first assaulted his wife Sarita (PW3) by an axe and thereafter on interruption by his mother-in-law Hansi Bai gave her one axe blow on her neck leading to her death on the spot. This finding is supported by the evidence of eyewitness Sarita (PW3) and Larangsai (PW4) and Naveen PW8) who were other inmates of the house where the incident took place. 12. Taking into consideration the above facts and evidence and further considering the FSL Report (Ex.P24) that human blood was found on the axe, we are of the considered opinion that the finding recorded by the Trial Court that it is the Appellant who assaulted his wife and mother-in-law by an axe, by which, his wife suffered grievous injuries and his mother-in-law died on the spot, is the finding of fact based on the evidence available on record and, as such, we hereby affirm the said finding of the Trial Court. 13. Now, as regards causing of death of his mother-in-law by the Appellant, the question is, whether his case would fall under Exception 4 to Section 300 of IPC? 14. 13. Now, as regards causing of death of his mother-in-law by the Appellant, the question is, whether his case would fall under Exception 4 to Section 300 of IPC? 14. In order to consider whether the case of the Appellant is covered under Exception 4 to Section 300 IPC, it would be appropriate to notice the decision rendered by Hon’ble the Supreme Court in Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 wherein it has been 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. Hon’ble the Supreme Court in 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 Appellant with reference to Section 302 or Section 304 Part II 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 for 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 for 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 with 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 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 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. Likewise, in 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 is 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 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 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 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. 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. 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. 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 Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be 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 same would be a case of Section 304 Part-II IPC. 19. Further, the Supreme Court in 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 read 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. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of the Appellant to cause death of his mother-in-law Hansi Bai. It is also evident from the evidence on record that the incident took place out of anger and in a spur of moment. It is also evident from the evidence on record that the incident took place out of anger and in a spur of moment. There was no intention on the part of the Appellant to cause the death, but, he must have had knowledge that the injury inflicted by him on the body of the deceased would likely to cause her death and as such, this is a case which would fall within the purview of Exception 4 to Section 300 IPC, as the act of the Appellant 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 and, therefore, the conviction of the Appellant under Section 302 IPC is altered/converted to Section 304 Part-II IPC. 21. In view of the aforesaid discussion, the conviction of the Appellant for offence punishable under Section 302 IPC is converted to Section 304 Part-II IPC. 22. The conviction imposed upon the Appellant for the offence under Section 307 IPC is affirmed. 23. Against the conviction under Section 304 Part-II IPC, the Appellant is sentenced with rigorous imprisonment for 9 years and fine of Rs.5,000 and in default of payment thereof he shall be liable to undergo additional rigorous imprisonment for 6 months. If any amount has already been deposited towards fine, the same shall be adjusted in the amount of fine imposed today. The sentence imposed upon him against the conviction under Section 302 IPC is set aside. 24. Against the conviction under Section 307 IPC, the sentence of rigorous imprisonment of 10 years imposed upon the Appellant by the Trial Court is, in the interest of justice, reduced to 5 years’ rigorous imprisonment. The fine sentence of Rs.5,000 imposed by the Trial Court is affirmed. 25. The criminal appeal is allowed in part to the extent shown above. 26. Record of the Trial Court be sent back along with a copy of this judgment forthwith for necessary compliance.