JUDGMENT : ARVIND KUMAR VERMA, J. 1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 17.08.2023, passed by the learned Sessions Judge, Surajpur, District Surajpur (C.G.) in Sessions Trial No. 43/2020, whereby the appellant-accused has been convicted for offence under Sections 302 and 201 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.500/- in default of payment of fine, to further undergo additional rigorous imprisonment for one month and sentenced to undergo rigorous imprisonment for two years and fine of Rs.500/- in default of payment of fine, to further undergo additional rigorous imprisonment for one month. 2. Case of the prosecution, in brief, is that complainant Sajjan Ram (PW-01) lodged Dehati Nalishi (Ex.P-1) at Police Out Post-Basdei, Police Station Surajpur against the appellant stating inter-alia that on 17.04.2020, the appellant caused the death of his wife Basanti @ Shivkunwar in his house at village Bhavrahi, Police Station and District Surajpur (C.G.). He committed the crime of murder by causing her death by beating her with hand, fist, kicks and stick with an intention to kill her and with intention of shielding himself from legal punishment of murder, he buried the body of the deceased/wife in the courtyard of his house and destroyed the evidence of murder. 3. On receiving the said information, police officials reached the house of accused-appellant, where after taking information from the appellant regarding his wife Basanti @ Shivkunwar, accused told that at around 03:00 AM, his wife left the house and he locked the house and went away. On being suspicious, he saw from the back side of the house and found that the court-yard soil has been dug. The accused/appellant beat his wife over family matters, killed her and buried the body in the court-yard with the intention of hiding the evidence of murder. On the basis of complaint of Sajjan Ram, FIR (Ex.P/21) was lodged against the appellant for the offence under Sections 302 and 201 of the IPC. Spot map was prepared by the investigating officer. Blood stains soil, plain soil and lock were recovered from the place of incident before Sajjan Ram (PW-01) and Devsharan (PW-05) vide Ex.P-10 and Ex.P-8. On the basis of complaint of Sajjan Ram, FIR (Ex.P/21) was lodged against the appellant for the offence under Sections 302 and 201 of the IPC. Spot map was prepared by the investigating officer. Blood stains soil, plain soil and lock were recovered from the place of incident before Sajjan Ram (PW-01) and Devsharan (PW-05) vide Ex.P-10 and Ex.P-8. Memorandum statement of the appellant was recorded vide Ex.P-7 and on the basis of his memorandum statement, stick, shovel and crowbar were seized. After investigating, charge-sheet under Sections 302 and 201 of the IPC was filed before the competent Court, he denied his guilt in his statement under Section 313 of the CrPC and stated that he is innocent and has been falsely implicated in the case. Dead body of the deceased was sent for postmortem examination to District Hospital, Surajpur where Dr. Seema Gupta (PW-15) conducted postmortem over the body of the deceased vide Ex.P-30 and found following injuries: (I) Soil present all over the body. (II) Rigor mortis present all over the body. (III) Multiple abrasions present different part of the body on both knees, toes, face, hand all are due to friction with rough surface. (IV) Multiple print bruise and contusion on over chest may be caused by hard object. (V) Lacerated wound over left side of chest in the size of 15 x 10 x 0.5 cm irregular boundaries due to hard object rough surface. Dr. Seema Gupta opined that cause of death was ‘Haemorrhagic shock due to poly trauma (assault)’ and death was homicidal in nature. 4. Statements of the witnesses were recorded. After due investigation, the police filed charge-sheet in the Court of Chief Judicial Magistrate, Surajpur, who in turn, committed the case to the Court of Sessions, Surajpur, District Surajpur. The appellant/accused abjured his guilt and entered into defence that he has not committed any offence and he has been falsely been implicated in crime in question. 5. In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 30 documents. The appellant-accused examined none in his defence nor any document has been exhibited. 6. 5. In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 30 documents. The appellant-accused examined none in his defence nor any document has been exhibited. 6. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 17.08.2023, convicted the appellant for offence under Sections 302 and 201 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 7. Mr. Anand Kumar Gupta, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 and 201 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He also submits that from the prosecution story it reflects that the seizure of articles, i.e. stick (danda) is not the same and just to implicate the accused person, the prosecution has made seizure of different stick (danda). He further contended that the entire case is based on circumstantial evidence and there is no eyewitness to the incident, hence, it is a case of benefit of doubt to appellant. 8. He further submits that there are several contradictions and omissions in the prosecution witnesses and some of the prosecution witnesses have been turned hostile and not supported the prosecution story, particularly complainant Sajjan Ram (PW-01). Looking to the evidence available on the face of record that on account of some family dispute, with sudden provocation and heat of passion and without any premeditation, the incident has taken place and there is no motive available to kill his wife as at the time of incident, both appellant and his deceased-wife were heavily drunken. He also contended that if the case of the prosecution is accepted as it is, then also the appellant is said to have caused injuries to the deceased in spur of moment, as they were fighting to each other; though no injury was caused to the appellant herein. 9. He further contended that there was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused injuries to the deceased, which caused her death. 9. He further contended that there was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused injuries to the deceased, which caused her death. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I) of the IPC. Hence, the present appeal deserves to be allowed in full or in part. He relied upon the judgments of the Supreme Court in the matters of Manoj and Another vs. State of Karnataka, (2013) 14 SCC 666 and Ghulam Hassan Beigh vs. Mohammad Maqbool Magrey and Others, (2022) 12 SCC 657 . 10. On the other hand, Mr. Shailendra Sharma, Panel Lawyer appearing for the respondent/State supports the impugned judgment and submits that it is not a case where the appellant’s conviction under Section 302 of the IPC can be altered/converted under Section 304 Part-I of the IPC and as such, the instant criminal appeal deserves to be dismissed. 11. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 12. The first question for consideration would be, whether death of deceased Basanti @ Shivkunwar was homicidal in nature? 13. The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the postmortem report of Dr. Seema Gupta (PW-15) has come to the conclusion that cause of death was ‘Haemorrhagic shock due to poly trauma (assault)’ and death was homicidal in nature. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Basanti @ Shivkunwar 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. 14. It is neither perverse nor contrary to record. We hereby affirm that finding. 14. Now, the next question for consideration would be whether the accused-appellant herein is the perpetrator of the crime in question as during the commission of the crime, both of them were intoxicated and due to which in a sudden provocation, without any intention he assaulted the deceased and caused grievous injuries causing his death. As such, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the body of the deceased and caused his death. Accordingly, we hereby affirm the said finding. 15. 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 his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant? 16. The Hon'ble Supreme Court in the matter of Sukhbir Singh vs. 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.” 17. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 17. The Hon'ble Supreme Court in the matter of Gurmukh Singh vs. 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. 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.” 18. 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.” 18. Likewise, in the matter of State vs. Sanjeev Nanda, (2012) 8 SCC 450 their Lordships of the Hon'ble 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. 19. Further, the Hon'ble Supreme Court in the matter of Arjun vs. 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 vs. 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. 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 vs. 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.” 20. 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.” 20. In the matter of Arjun (supra), the Hon'ble 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. 21. Further, the Hon'ble Supreme Court in the matter of Rambir vs. 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. (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.” 22. In the present case, Sajjan Ram (PW-1) (complainant of the case) who lodged Dehati Nalishi (Ex.P-1) before the Police Out Post-Basdei has stated in Para 1 that on the date of incident, when people called him near the house of the accused and told him that there was some quarrel between the accused and his wife. On 17.04.2020, at about 07:00 am, he went to the house of the appellant to make them understand. When he went to his house and asked him about his wife Basanti, the accused told that since 03:00 am, his wife had gone somewhere. In Para 2 he stated that when he reached with other people near the house of the accused, he locked the house and went away and on being suspicious, he saw from the back door of the house that soil had been dug in the courtyard. Accused beat his wife over family matters and killed her and buried the body in the courtyard with intention of hiding the evidence of murder. 23. Accused beat his wife over family matters and killed her and buried the body in the courtyard with intention of hiding the evidence of murder. 23. Investigating officer Assistant Sub-Inspector Sunil Singh (PW-13) has stated in his evidence that during investigation, he recorded the memorandum statement of the accused (Ex.P-7) before the witnesses Sajjan Ram (PW-01) and Devsharan (PW-05), on the basis of said memorandum at the instance of the accused, stick, shovel and crowbar used in the incident were seized and seizure memo Ex.P-9 was prepared. He further stated that it is not correct to say that on what matter there was quarrel between them has not been ascertained by the informant. 24. Reverting to the facts of the present case in light of principles of law laid down by their Lordships of the Hon'ble Supreme Court in the above-stated judgments (supra) and considering the statements of the witnesses, it is quite vivid that as per statement of Complainant-Sajjan Ram (PW-1) who stated that on the date of incident, when people called me near the house of the accused and told him that there was a quarrel between the accused and his wife. On 17.04.2020, at about 07:00 am, he went to the house of the appellant to make them understand. When he went to his house and asked about his wife Basanti, the accused told that since 03:00 in the morning his wife had gone somewhere. In Para 2 he stated that when he reached with other people near the house of the accused, he locked the house and went away, when became suspicious, he looked from the back door of the house and saw that soil had been dug in the courtyard. Accused beat his wife over family matters and killed her and buried the body in the courtyard with intention of hiding the evidence of murder. There was no premeditation on the part of the appellant to cause death of deceased Basanti @ Shivkunwar and only because of some trivial issue, the quarrel took place between the appellant and the deceased. Accused beat his wife over family matters and killed her and buried the body in the courtyard with intention of hiding the evidence of murder. There was no premeditation on the part of the appellant to cause death of deceased Basanti @ Shivkunwar and only because of some trivial issue, the quarrel took place between the appellant and the deceased. The appellant did not have any intention to cause death of deceased Basanti @ Shivkunwar, but by causing such injuries, he must have had the knowledge that such injuries inflicted by him would likely to cause death of Basanit, as such, his case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant herein completely satisfied 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. 25. Considering the above-stated facts, further considering the statement of Sajjan Ram (PW-01), taking into consideration the age of the appellant at present, the fact that he is in jail since 18.04.2020, also considering the postmortem report of the deceased (Ex.P-30) and the material available on record, 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. 26. 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 RI for 10 years. Conviction of the appellant-accused under Section 201 of the IPC is hereby affirmed. 27. The appellant is stated to be in jail, he shall serve out the sentence as modified by this Court. 28. The criminal appeal is partly allowed to the extent indicated herein-above. 29. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.