Judgment : Per Rajani Dubey, J. 1. The present appeal is directed against the judgment of conviction and order of sentence dated 25.04.2019 passed by the learned Session Judge, Rajnandgaon (C.G.) in Session Case No.14/2018, whereby the appellant has been convicted under Section 302 of IPC and sentenced to undergo life improvement. 2. The prosecution case, in brief, is that on the date of incident ie. on 29.12.17 at about 8.00 PM the appellant attacked his brother namely Davsingh by way of Tangia, resulted into serious injuries over his neck. Thereafter ambulance was called for but Davsing didn't survive. The matter was reported by PW-11 Sarita Netam on the basis of which dehati nalisi was registered and investigation was carried by the investigating officer. After investigation police registered case against the accused, he was arrested and charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellant, as mentioned in para 1 of the judgment. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. The statements of eye witness are not reliable particularly PW-11 Sarita Meshram, PW-3 Mankur Kumeti. The learned Trail Court has also not appreciated the memorandum and seizure witness namely PW-2 Doulat Ram Kotai has turned hostile and did not support the case of the prosecution therefore prima facie case against the present applicant is not made out. Therefore, the impugned judgment is liable to be set aside. Alternatively Learned counsel for the appellant submits that there is only one injury on the head of the deceased and it is also clear that the appellant assaulted the deceased in scuffle, as such only offence under Exception 300 of IPC may attract and the appellant can only be convicted under Section 304 Part-II of IPC. 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal deserves to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal deserves to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Section 302 of IPC against the appellant and after appreciation of oral and documentary evidence, the learned Trial Court convicted the appellant under Section 302 of IPC, as mentioned in para 1 of the judgment. 7. The first question we have to consider is whether the death of the deceased is homicidal in nature or not? 8. The inspector Sonal Gwala (PW-12) stated that he lodged dehati nalisi (Ex-P/16) and numbari merg intimation (Ex-P/16-A) and also recorded dehati nalisi (Ex-P/15) and as per merg intimation (Ex-P/15), Smt. Sarita Markam informed on 30.12.2017 that Dau Singh was murdered. He issued notice under Section 175 of CrPC for inquest and prepared inquest memo (Ex-P/12) and gave application for postmortem (Ex-P/13-A). 9. Dr. Piyusha Anchale (PW-10) conducted postmortem of the deceased and he found the injuries over the deceased as under:- He opined that death was due to excess bleeding owing to Hypo volumic shock and death was homicidal in nature. He gave his report (Ex-P/13). In the cross-examination, no question was asked regarding homicidal death of the deceased, as such the statement of Dr. Piyusha Achale (PW-10) and his report (Ex-P/13) proved this fact beyond reasonable doubt that the death of the deceased was homicidal in nature. 10. Now we have to examine whether the accused/appellant is the author of the crime or not? 11. PW-11 Sarita Netam, wife of deceased, stated that Dau Singh was her husband and on the date of incident, she was feeding her child, then he came there and assaulted his husband by spade (tangiya). She admitted her signatures in dehati nalisi (Ex- P/15) on A to A part and in dehati merg (Ex-P/16) on A to A part and also admitted her signature on spot memo (Ex-P/17 & P/18) and as also on notice (Ex-P/11) and inquest memo (Ex-P12). 12. She admitted her signatures in dehati nalisi (Ex- P/15) on A to A part and in dehati merg (Ex-P/16) on A to A part and also admitted her signature on spot memo (Ex-P/17 & P/18) and as also on notice (Ex-P/11) and inquest memo (Ex-P12). 12. PW-3 Mankur, PW-4 Dhanau Ram, PW-5 Chatur Singh, PW-8 Rukder Ram stated that while listening uproar, they went to the house of the deceased, then the deceased wife told that the accused assaulted his husband by spade. Mankur (PW-3) stated that when he reached the place of occurrence, he saw that the deceased was stabbed by the appellant by spade (tangiya), which was stabbed on the neck of the deceased, to which he removed. All other witnesses also stated against the appellant. 13. The main objection of the learned counsel for the appellant is that the statements of the wife of the deceased Smt. Sarita Netam (PW-11) and PW-3 Mankur are contradictory to each other, as Mankur PW-3 stated that he was present at the time of incident and the deceased stabbed the spade on the neck of the deceased, to which he pulled, but Sarita (PW-11) stated that the appellant assaulted her husband by spade and also tried to assault her, then only Mankur saved her, but these are only the minor contradictions and even if we assumed this version of the statements of both the witnesses, even then it has been proved by the prosecution that the accused assaulted the deceased by spade (tangiya), which is corroborated by merg intimation and dehati nalisi written by inspector Sonal Gwala on the information of Sarita Markam. It is clear from merg intimation and dehati nalisi that the accused’s name is written in all the documents from the very beginning as assaulter’ hamla karne wala’. During investigation, memo (Ex-P/2) was prepared by prosecution and as per this memorandum, it is clear that the appellant stated about tangiya which was left out at the spot. It is clear from merg intimation and dehati nalisi that the accused’s name is written in all the documents from the very beginning as assaulter’ hamla karne wala’. During investigation, memo (Ex-P/2) was prepared by prosecution and as per this memorandum, it is clear that the appellant stated about tangiya which was left out at the spot. Looking to the statements of PW-3 & PW-11, it is clear that the defence taken by the appellant that there are contradictions in the statements of these two witnesses is of no help to him, because it is very much clear from the memorandum and statement of other witnesses that the accused and the deceased quarreled to each other and the appellant assaulted the deceased by tangiya and the deceased sustained injuries on his shoulder. Dr. PW-10 Piyusha Anchale also found only one injury on the body of the deceased. 14. Section 304 Part-II of IPC provides as under:- “Whoever commits culpable homicide not amounting to murder, shall be punished with 1 [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 15. The Hon’ble Supreme Court in the matter of Arjun vs State of Chhattisgarh , reported in (2017) 3 SCC 247 , has held that when and if there is a intent and knowledge, the same would be case of Section 304 Part-I of 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 IPC. 16. This Court in the matter of Budhwar Singh @ Bhursa Baiga vs State of Chhattisgarh Budhwar Singh vide judgment dated 28.11.2022 in CRA No.1157/2021 held in paras 18 & 19 as under:- “18. 16. This Court in the matter of Budhwar Singh @ Bhursa Baiga vs State of Chhattisgarh Budhwar Singh vide judgment dated 28.11.2022 in CRA No.1157/2021 held in paras 18 & 19 as under:- “18. In the matter of 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 the matter of Rambir vs. State (NCT of Delhi) has laid down four ingredients which should be tested for 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.” 17. In the present case also, it is clear that on the date of incident, there was sudden fight between the deceased and the accused. It is also clear that the act of the appellant was done in a heat of passion, as there was only one blow over the body of the deceased i.e. on shoulder and thus looking to the injuries sustained by the deceased, it is clear that the appellant had no intention to kill the deceased, therefore, his conviction is altered into Section 304 Part-II of IPC and he is sentenced to RI for 8 years. 18. Consequently the appeal is partly allowed. The impugned judgment of conviction and order of sentence is modified to the extent indicated herein-above. 19. The appellant is in jail since 30.12.2017, as such after setting off the period of detention undergone by the appellant against the sentence of imprisonment, the remaining jail sentence shall be served by the appellant. 20. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.