JUDGMENT : MANOJ KUMAR GARG, J. 1. The present criminal appeal has been filed under Section 374 Cr.P.C . against the judgment dated 23.03.2004 passed by learned Additional Sessions Judge (FT), Chittorgarh in Sessions Case No. 03/2004 whereby the learned trial Court convicted the appellant for offence under Sections 302 IPC , 341 IPC & 323 IPC and passed the sentences as under :- S.No. Offence Punishment 1. 302 IPC Life imprisonment alongwith fine of Rs.2000/-, in default of payment of fine, to undergo three months simple imprisonment. 2. 341 IPC One month SI and a fine of Rs.500/- in default of payment of fine to undergo 15 days SI. 3. 323 IPC Six months simple imprisonment alongwith fine of Rs. 500/-, in default of fine, to undergo 15 days simple imprisonment All the sentences have been ordered to run concurrently. 2. Brief facts of the case are that on 18.07.2003, an oral report was lodged by complainant Gheesu lal Kumawat to the effect that on 17.07.2003 when he was returning to his village alongwith one Gopi lal towards Rojada village after collecting the stray cattle, one person came armed with stick and threatened to take away stray cattle else he will kill them. Suddenly, the said person assaulted Gopi lal with stick on his head and face and legs. Gopi lal fell down and became unconscious. The complainant managed to pick him up and reached the well where, Kachru, Gheesu, Heera lal, Ramlal came who took him to hospital at Chittorgarh. 3. The said report was forwarded to Police Station Chanderia having jurisdiction which registered the FIR No. 254/2003 for offence under Section 307, 341, 323 IPC and investigation commenced. The police initially filed chargesheet against the accused for offence under Section 307, 341, 323, however, after a period of three and half months, the injured Gopi lal died, therefore, a supplementary chargesheet was filed for offence under Section 302 , 341, 323 IPC . The case was committed to the court of Additional Sessions Judge (FT), Chittorgarh whereas, charges of the case were framed. 4. During trial, the prosecution examined 21 witnesses and produced various documentary evidence in support of its case. Thereafter the statement of the accused-appellant was recorded under section 313 Cr.P.C . No witness was examined on the defence side. 5. The case was committed to the court of Additional Sessions Judge (FT), Chittorgarh whereas, charges of the case were framed. 4. During trial, the prosecution examined 21 witnesses and produced various documentary evidence in support of its case. Thereafter the statement of the accused-appellant was recorded under section 313 Cr.P.C . No witness was examined on the defence side. 5. On the basis of evidence on record, the learned trial court convicted and sentenced the accused appellant as mentioned above. 6. Counsel for the appellant submitted that the learned trial court did not scrutinize the evidence of PW/3 Gheesu lal in the light of facts available on record and has ignored the inherent infirmities and improbabilities appearing in his evidence. PW/3 Gheesu lal had not named the present appellant in the FIR and mentioned that he can identify the person who inflicted injuries to the deceased. In the FIR, he named as many as four persons but the police filed challan only against the petitioner. PW/3 Gheesu in his statement has mentioned that the present appellant inflicted injury on the head of deceased, however, he failed to mention the name of assailant in the FIR. It is argued that the complainant allegedly shouted and at that time, Kachru, Gheesu Teli, Heera lal, Ram lal came there. However, PW/2 Rana has been declared hostile and does not support his story. PW/5 Gheesu Teli only stated that complainant Gheesu lal told him that accused Kalu had inflicted injuries upon the deceased. PW/6 Kachru also narrate the same story that it is Gheesu lal who told him that Kalu had inflicted injuries upon the deceased. PW/8 Heera lal stated that he heard somewhere that Kalu had assaulted the deceased. Thus, except complainant PW/3 Gheesu lal, there is no eye witness to the incident and even complainant Gheesu lal had not named the present appellant in the FIR. It is further argued that the injured had received single injury on his head and he expired on 01.11.2003 i.e. about three and half months after the incident as a result of Septicemia as a result of bedsores. The appellant never intended to cause serious injury to cause death, therefore, the conviction of the appellant for offence under Section 302 IPC is erroneous. Even if the prosecution story is accepted to be true, the offence does not travel beyond Section 304 Part II IPC . The appellant never intended to cause serious injury to cause death, therefore, the conviction of the appellant for offence under Section 302 IPC is erroneous. Even if the prosecution story is accepted to be true, the offence does not travel beyond Section 304 Part II IPC . Learned counsel for the appellant submits that conviction of the appellant for offence under Section 302 IPC may be altered to Section 304 Part II and the sentence awarded to the appellant may kindly be reduced to already undergone as the petitioner has already undergone incarceration of four years and nine months and also undergone mental and physical agony from last 22 years. 7. Per contra, learned Public Prosecutor vehemently opposed the prayer and submits that it is a case in which prosecution has proved its case beyond reasonable doubt. The trial court has rightly relied upon the evidence of PW/5 Gheesu lal, therefore, the finding given by the learned trial court to hold accused appellant guilty for offence under Section 302 IPC does not require any interference. 8. We have considered the submissions on behalf of parties and carefully scanned the material on record, exhibits and the deposition of witnesses. 9. PW/3 Gheesu lal is the complainant and sole eye witness of the incident. This witness had not named the assailant in the FIR but later on, he mentioned the name of present appellant. All the other four witnesses namely Kachru, Gheesu Teli, Heera lal, Ram lal have only stated that they were told by complainant Gheesu lal that the present appellant had caused injuries to deceased. One of these witnesses PW/2 Rana has been declared hostile. Thus, PW/3 Gheesu lal is the only witness who has stated about the participation of appellant in the assault. 10. As per injury report of deceased Gopi lal, the deceased had sustained single injury on his head and as per postmortem report and the cause of death was septicemia due to bedsores after three and half months of the incident. Thus, it is clear that the injured died due to medical negligence and not necessarily due to injury on his head. 11. A cumulative reading of entire evidence makes it clear that the statement of complainant PW/3 Gheesu lal is truthful disclosure of fact that the incident took place and injuries were inflicted in a sudden fight. Thus, it is clear that the injured died due to medical negligence and not necessarily due to injury on his head. 11. A cumulative reading of entire evidence makes it clear that the statement of complainant PW/3 Gheesu lal is truthful disclosure of fact that the incident took place and injuries were inflicted in a sudden fight. There was no pre-meditation on the part of accused appellant or pre-planning to his action to commit murder. 12. Considering the background facts as well as the fact that the appellant had neither taken any undue advantage nor acted in a cruel manner and that there was sudden fight between the parties, in the opinion of this Court, the instant case falls under Exception 4 to Section 300 IPC and not 302 IPC . 13. Hon’ble Apex Court in (2006) 11 SCC 444 ‘ Pulicherla Nagaraju @ Nagaraja vs State Of A.P ’ while discussing the said aspect has observed as under :- “Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302 , are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302 . It is for the courts to ensure that the cases of murder punishable under Section 302 , are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302 . The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. 14. In the instant case, as per evidence, the appellant is said to have assaulted Gopi lal with stick on the head but there was no premeditation to commit murder. During the sudden quarrel and altercation, the head injury was given and an intention to kill may not be inferred. We may safely hold that from the facts and circumstances, it is not a case of murder but the commission of offence attributed to the appellant would come under Section 304 Part II of the IPC . However, no interference is called for in the conviction and sentence awarded for offence under Section 341 & 323 IPC . 15. Accordingly, the appeal is partly allowed and conviction of appellant is altered from Section 302 I.P.C. to that under second Part of Section 304 IPC . However, no interference is called for in the conviction and sentence awarded for offence under Section 341 & 323 IPC . 15. Accordingly, the appeal is partly allowed and conviction of appellant is altered from Section 302 I.P.C. to that under second Part of Section 304 IPC . However, taking note of the fact that the incident had occurred in the year 2003 and that the accused had remained behind the bars for four years and nine months, ends of justice would be met if the appellant is awarded with sentence of imprisonment of period already undergone by him, while waiving off the fine amount. The appellant has already undergone the sentence awarded for offence under Section 341 & 323 IPC . 16. The appellant is on bail. His bail bonds stand cancelled. 17. Record of the trial court be sent back forthwith.