JUDGMENT : MITALI THAKURIA, J. 1. Heard Ms. S. Medhi, the learned counsel for the appellant. Also heard Mr. B. Sharma, the learned Additional Public Prosecutor appearing on behalf of the State respondent. 2. This is an appeal u/s 374 Cr.PC challenging the impugned judgment dated 11.08.2023 and the order of sentence dated 14.08.2023 passed by Court of learned Sessions Judge, Kokrajhar in Sessions Case No. T1/24/2021 (corresponding to G.R. Case No. 625/2021), convicting the accused/appellant for the offence u/s 304 Part II and u/s 324 IPC and sentenced to undergo R.I for 10 years u/s 304 Part II of IPC and to pay a fine of Rs. 10,000/- with default stipulation and also sentence to undergo to 3 years R.I for offence committed u/s 324 IPC along with a fine of Rs. 1,000/- with default stipulation. 3. In brief the case of the present appellant is that an FIR dated 20.05.2021 is lodged by the informant Sri Pradyut Kr. Brahma before the Officer Incharge, Kokrajhar P.S. alleging inter alia that on 19.05.2021 at around 9:30 PM while the informant’s brother-in-law Sibu Prasad Brahma went to close the main gate, the accused/appellant assaulted Sibu Prasad Brahma with a sharp weapon due to which he died at MRM Hospital, Kokrajhar. It is further alleged that the accused/appellant also assaulted one Ashok Boro with sharp weapon causing grievous injury on his person. On the basis of the FIR a case has been registered under Kokrajhar P.S. Case No. 380/2021 u/s 120(B)/302 IPC and the investigation was accordingly started. After completion of investigation charge- sheet is also laid against the present accused/appellant u/s 120(B)/324/302 IPC to face the trial. 4. After filing of the charge-sheet the case is accordingly committed before the learned Sessions Judge and accordingly relevant copies were provided to the accused/appellant and finding a prima facie case, charge is also framed against the accused-appellant u/s 302/324 IPC. The prosecution has examined as many as 10 nos. of witnesses including informant, MO and I/O. The accused/appellant pleaded not guilty, but has not adduced any evidence in support of his case. The statement of the accused/appellant also recorded u/s 313 Cr.PC to which he pleaded not guilty. The prosecution has examined as many as 10 nos. of witnesses including informant, MO and I/O. The accused/appellant pleaded not guilty, but has not adduced any evidence in support of his case. The statement of the accused/appellant also recorded u/s 313 Cr.PC to which he pleaded not guilty. After recording of the evidence and hearing argument put forward by the learned counsels for both sides, the learned Sessions Judge, Kokrajhar had passed the judgment & order dated 11.08.2023 convicting the accused/appellant u/s 304 Part II/324 IPC and thereby sentenced to undergo R.I for 10 years u/s 304 Part II of IPC and to pay a fine of Rs. 10,000/- with default stipulation and also sentence to undergo to 3 years R.I for offence committed u/s 324 IPC along with a fine of Rs. 1,000/- with default stipulation. 5. Being aggrieved and dissatisfied by the judgment & order passed by the learned Sessions Judge, Kokrajhar the present appeal has been preferred by the accused/appellant. 6. It is submitted by Ms. Medhi that the judgment & order had been passed in a very mechanical manner without any application of mind and without appreciating all the facts and circumstances and thus the learned Court below had erred in law as well as facts and hence the judgment & order passed by the learned Sessions Judge is liable to be set aside. It is submitted that the learned Sessions Judge did not appreciate the evidence of both PW- 3 and PW-5, who were considered to be the eye-witnesses in the prosecution case and the vital witnesses of the prosecution i.e. the wife of the appellant and the girl named Jaba who was the reason behind the entire incident were also not examined by the prosecution. Due to non-examination of those vital witnesses by the prosecution also creates reasonable doubt in the veracity of the prosecution case. 7. She further submitted that the accused/appellant was apprehended from a house at Runikhata under Bhur Tiniali village in Chirang district and distance from the place of occurrence to Runikhata is about 50 to 60 kilometers. But, there is no such explanation as to how the accused was arrested from the house of a person from Runikhata. But, surprisingly the house owner is not examined by the prosecution and the knife which was alleged to be the murder weapon also not sent for forensic examination by the prosecution. But, there is no such explanation as to how the accused was arrested from the house of a person from Runikhata. But, surprisingly the house owner is not examined by the prosecution and the knife which was alleged to be the murder weapon also not sent for forensic examination by the prosecution. Apart from that there are many contradictions in the evidences of PWs and thus the prosecution could not prove the case beyond all reasonable doubt to convict the accused/appellant u/s 304 Part II and 324 IPC. She further submitted that one of the victim i.e. PW-4, who is stated to be present at the relevant time of incident, but his evidence is also cannot be considered as admittedly it was very dark and no one can be seen from 10 to 15 metres distance and thus though he claimed himself to be the victim or eye-witness in the prosecution, but his evidence also cannot be relied upon. More so as per the Post Mortem Report the deceased died for hypotension and shock, cardio pulmonary arrest. Thus, the Post Mortem Report also does not support the ocular evidence, wherein it is alleged that the accused/appellant had assaulted the deceased with a sharp knife causing bodily injury, for which he died. 8. Ms. Medhi further submitted that there was no intention on the part of the accused/appellant to kill the deceased and only after a quarrel, at the spar of the moment, the entire incident had happened. Ms. Medhi accordingly submitted that there is no eye-witness to the prosecution case and the witnesses who are claimed to be the eye-witnesses of the prospection i.e. the PW-3, PW-4 and PW-5 are also not consistent in their evidence and from the evidence of PW-4 it reveals that he was at a 10-15 meters far from the place of incident. She accordingly submitted that without proper appreciation of the evidence on record the order of conviction has been passed by the learned Sessions Judge, Kokrajhar and hence the same is liable to be set aside and quashed. 9. Mr. Sharma, the learned Additional Public Prosecutor submitted in this regard that there are sufficient incriminating materials on the basis of which the conviction has been passed by the learned Sessions Judge after proper appreciation of evidence. 9. Mr. Sharma, the learned Additional Public Prosecutor submitted in this regard that there are sufficient incriminating materials on the basis of which the conviction has been passed by the learned Sessions Judge after proper appreciation of evidence. There is nothing to disbelieve that PW-3, PW-4 & PW- 5 who are the eye-witnesses to the prosecution and apart from that the PW-4 also sustained sharp cut injury on his person while he tried to resist the accused/appellant. Initially the case was registered and charge-sheeted u/s 302 IPC but, at the time of passing the judgment the learned Sessions Judge had arrived at a decision that it may not be a case of murder and accordingly convicted the appellant u/s 304 Part-II IPC. In paragraphs 59 & 60 of the said judgment, the learned Sessions Judge had described as to why the charges u/s 302 is converted to Section 304 Part II under which the appellant is convicted. 10. Mr. Sharma further submitted that the medical evidence also fully corroborates the ocular evidence wherein the allegation has been brought against the accused/appellant that he assaulted the deceased with knife causing penetrative as well as stab injuries on several parts of the body of the victim. Apart from that he also assaulted the PW-4, the another victim of this case, who also sustained grievous injury on his person caused by sharp object. Mr. Sharma accordingly submitted that there is no need of any interference in the judgment and order passed by the learned Sessions Judge, Kokrajhar and the present appeal is liable to be dismissed. 11. Hearing the submissions made by learned counsel for both sides, I have also perused the case record, the judgment passed by the learned Sessions Judge and the evidence recorded there under to arrive at the just decision. The PW-8 Dr. Anmol Kr. Sah had conducted the post-mortem examination of the deceased on 20.05.2021 at about 1.05 PM who was brought in the R.N.B. Civil Hospital, Kokrajhar in connection with the present case and found the following injuries on his person. “Bluish face and pale body, a puncture mark (penetrating wound) In the medial aspect of left pectoralis minor tendon nearly 2 X 1.5 cm (sutured) wound, penetrating to left lung and major vessel (left sub clavian vein), left side lung collapsed and hemothorax present, rigormortis present (not well developed), cold clammy body. “Bluish face and pale body, a puncture mark (penetrating wound) In the medial aspect of left pectoralis minor tendon nearly 2 X 1.5 cm (sutured) wound, penetrating to left lung and major vessel (left sub clavian vein), left side lung collapsed and hemothorax present, rigormortis present (not well developed), cold clammy body. Echymosis in the body not properly developed on the dependent parts. Both cuvital vein puncture mark (IV excess) noticed. Conclusion: left anterior chest penetrating wound, left lung collapsed, left hemothorax (views unclotted blood), left sub clavian vein penetrated (puncture) noticed, rigor mortis developing. In his opinion, the death is ante mortem in nature, due to left side chest penetrating wound leading to hemothorax, hypotension and shock, cardio pulmonary arrest. Time since death is nearly 12 to 18 hours. Ext. P/3PW8 is the P.M. Report wherein Ext.P3(1)/PW8 is his signature.” 12. So from the evidence as well as the Medical Report of the Doctor it is seen that death is caused due to left side chest penetrative wound leading to hemothorax, hypotension and shock, cardio pulmonary arrest. There found several penetrative wounds in the various parts of the body including the penetrative wound in the left lung and major vessels for which the left side lung was also collapsed and hemothorax is present. Though it is stated that there was pulmonary arrest but from the report it is seen that pulmonary arrest was caused only due to shock, haemorrhage and penetrative wound in the left side of the chest, which also penetrated the left lung of the present deceased. Thus, there cannot be any dispute that the deceased died due to sustaining of penetrative injury on his various parts of the body and admittedly the death is homicidal in nature. 13. So it is to be seen as to how he sustained such injuries on his person or who is responsible for causing such kind of injury to the deceased and in the same time it is also seen that PW-4 is another victim who also sustained sharp cut injury on his person. 14. As per the FIR, it is the accused/appellant caused the injuries to the deceased on the night of incident. So let us scrutinise the evidence-on-record of all the PWs. 15. PW-1 is Pradyut Kr. 14. As per the FIR, it is the accused/appellant caused the injuries to the deceased on the night of incident. So let us scrutinise the evidence-on-record of all the PWs. 15. PW-1 is Pradyut Kr. Brahma, the informant in this case and from his evidence it is seen that on receipt of an information from his sister-in-law that the deceased was stabbed by someone and he has been taken to MRM Hospital, Kokrajhar, immediately he went to the hospital and got the information of death of the deceased Sibu Prasad. Thus, it is seen that the PW-1 lodged the FIR only on receipt of information from his sister-in-law and he has not seen the occurrence or has no personal knowledge about the same. 16. PW-2 is the elder brother of the deceased, who deposed that the house of the deceased is adjacent to his house and on day of incident at about 9:30 PM, when he was to his courtyard, one person came to the house of deceased Sibu and Sibu went along with the said person. But, after sometime he heard hue and cry on the road and on hearing hue and cry he immediately rushed to the place of incident and saw that someone has stabbed his brother. Thereafter he was immediately taken to MRI Hospital and on the next day he came to know that the accused has stabbed his brother. He denied to the suggestion in his cross-examination that the accused has not committed the offence and he did not know the accused. 17. PW-3, one of the vital witnesses of the prosecution, has deposed that she used to reside in the house of the deceased Sibu Prasad at Kokrajhar town. At about 1 year ago she went to the marriage ceremony of one of her friend with Neha at Dauliguri village in a temple. After solemnising of the marriage they all celebrated marriage party in her room. In the said party, the accused was also present along with his wife where he kissed one girl, namely, Joba and his wife was furious and also slapped the accused. Thereafter the accused also got angry and he assaulted his wife. However, the persons in her room intervened and all the persons went to their home accordingly. In the said party, the accused was also present along with his wife where he kissed one girl, namely, Joba and his wife was furious and also slapped the accused. Thereafter the accused also got angry and he assaulted his wife. However, the persons in her room intervened and all the persons went to their home accordingly. But, after sometime the accused again came back to her room and enquired about his wife and at that time her roommate Indira was also present. Some quarrel took place between the accused and Indira and then the accused showed a small folding knife of 4/5 inches, attached to his bike key ring and threatened both of them. Thereafter, both the PW-3 and her friend Indira fled away. During that time, said Indira met the deceased Sibu and his friend and she narrated the whole incident. The deceased told her to hide for a while and he assured that he would talk with the accused. The PW-3 was present at a little distance from the house of deceased Sibu, when an altercation took place between the deceased and the accused and in that altercation the accused suddenly stabbed the deceased with his knife. Both PW-3 and Indira saw the incident while the accused stabbed the deceased with a knife. The deceased was immediately taken to the hospital by his friend. But, in the same night they heard that Sibu died in hospital. In her cross examination she disclosed that the occurrence took place at about 10 PM and the place of occurrence was dark. She saw the entire incident from about 20/30 meters far from the place of occurrence. She also admitted that the deceased was not present in the party. She further denied all other suggestions put by the defence that she is not the eye-witness nor the accused stabbed the deceased and she gave some false evidence in favour of the deceased as she was residing in his house, at the time of incident. 18. PW-4 is also one of the victims who was present at the time of incident along with the deceased. As per him on the day of incident at about 6:30 PM the deceased called him over phone to come to his house for a discussion on a contract wok. 18. PW-4 is also one of the victims who was present at the time of incident along with the deceased. As per him on the day of incident at about 6:30 PM the deceased called him over phone to come to his house for a discussion on a contract wok. They had a discussion till 9:45 PM and he was supposed to go to his home and the deceased was supposed to go to open the gate, thereafter a lady came and told that there was some problem in her house and requested the deceased to solve the problem. Then the deceased told him to accompany with him to the house of the lady and when they stepped forward from about 8 to 10 meters from the gate of the deceased the accused came and stabbed the deceased with a knife. PW-4 tried to stop the accused and he also injured him by his knife and started running. Both the deceased and PW-4 tried to chase the accused and fled away. Thereafter PW-4 saw the stab injuries on the chest of the deceased and immediately took the deceased to MRM Hospital at Kokrajhar where he got admitted and the doctor started the treatment of both of them. But, the deceased died at about 12 midnight in the hospital. In his cross-examination he stated that PW-4 could identify the accused at the police station and the lady who asked for help was present at the time of incident. She was alone. He further submitted that he has no enmity with the accused and denied to the suggestion that he is the person who killed the deceased when the deceased tried to inflict injuries. 19. PW-5 is one of the friend of PW-3 who used to stay in a same rented house of the sister of the deceased. She deposed that on the day of incident there was a marriage party in the room of Risima, PW-3. The accused and his wife were also present in the said marriage party and the marriage party was over at 8:30 PM when the accused again came to their room and tried to assault her along with Risima, for which they went outside the room. The accused and his wife were also present in the said marriage party and the marriage party was over at 8:30 PM when the accused again came to their room and tried to assault her along with Risima, for which they went outside the room. Then they wanted to go to police station but, on the way they met the deceased Sibu and then they narrated as to what has happened and also told him that the accused wanted to assault them. At that time the PW-4 Ashok Boro was also present along with the deceased. In the meantime accused came there and when the deceased tried to intervene, the accused stabbed him on his chest with a knife and accused also inflicted injury to Ashok Boro i.e. PW-4. She then immediately returned to her home. Later on she heard that the deceased was taken to hospital where he died in the same night. From her cross-examination it reveals that she saw the incident at a distance of 20 ft. and at the time of incident the light of the bulbs outside the house of the deceased was burning and it was running on inverter as there was no electricity. 20. PW-6 is also one of the friends of PW-5 who deposed that she did not attend the marriage party. But, at about 9:30 PM on the day of incident PW-5 Indira came to her house and told her that the accused inflicted injury on Sibu (deceased). 21. PW-7, another M/O who examined the friend of the deceased i.e. PW-4 on the night of incident at about 11 PM and on examination he found incised wound present in the left arm in its lateral aspect and he opined that the injury was simple, caused by sharp weapon. 22. PW-9 deposed that on the day of incident she also attended the marriage party in the room of Risima (PW-3) when the accused touched one girl called Joba and on that his wife got furious and slapped the accused. Quarrel broke out between the accused and his wife. However, with the intervention of the neighbouring people the quarrel was stopped and they went to their own house. She also stated in her cross-examination that PW-3 & PW-4 stayed in the rented house of the deceased in two separate rooms. 23. Quarrel broke out between the accused and his wife. However, with the intervention of the neighbouring people the quarrel was stopped and they went to their own house. She also stated in her cross-examination that PW-3 & PW-4 stayed in the rented house of the deceased in two separate rooms. 23. PW-10 , S.I. Ganga Phukan is the Investigating Officer who received one phone call from one Sujit Kr. Brahma informing that an unknown person injured his maternal uncle by a chopper. Accordingly, a G.D. Entry has been made and immediately he rushed to the place of occurrence at Kokrajhar town and in the meantime the O/C, Kokrajhar P.S. along with TSI Biswajit Medhi and WPC Hemlata Nath along with other staff also arrived at P.O. Thereafter they proceeded for the enquiry, visited to the house of the accused Dipu Narzary. But, Dipu was not found available in his house when one Risima informed that the accused might have gone to Runikhata under Chirang district. Thereafter, they proceeded to Runikhata and informed the matter to Runikhata P.S. and along with the police officer from Runikhata P.S. they went to Bhur Tiniali where they found the accused in the house of one person and accordingly his mobile handset, bike, knife etc. were seized in presence of the witnesses. Accordingly, they apprehended the accused and brought him to Kokrajhar P.S. on next day i.e. 20.05.2021 and one Pradyut Kr. Brahma accordingly lodged a written FIR in the police station in connection with the said incident. After registering of the FIR he was entrusted with the investigation and accordingly he started with investigation, visited the P.O., recorded the statement of witnesses, drew the sketch map and post-mortem examination of the deceased was also done in the R.N.B. Civil Hospital and thereafter the accused was arrested and he was also sent to police custody. From his cross-examination it reveals that the place of seizure is mentioned as Runikhata under Chirang district, which is 3/4 kilometres far from Runikhata P.S. and date of seizure is also mentioned as 20.05.2021 at 2:20 AM. It also reveals from his evidence that the distance from Kokrajhar P.S. to the place of seizure is about 50 to 60 kilometre. Mausumi i.e. wife of accused and Risima also accompanied him when he proceeded to Runikhata. It also reveals from his evidence that the distance from Kokrajhar P.S. to the place of seizure is about 50 to 60 kilometre. Mausumi i.e. wife of accused and Risima also accompanied him when he proceeded to Runikhata. But, he did not record the statement of the person from whose house the accused was apprehended. He also admitted in his cross-evidence that he did not record the statement of the nearby neighbouring people, as they were not even present at the time of the investigation. 24. From the testimonies of PWs it is seen that PW-1 is the informant in this case who had received all the information from his sister-in-law and lodged the FIR. But, he is not the eye-witness to the prosecution case. PW-2 is the elder brother of the deceased, who stayed in the adjacent house of the deceased and on the night of the incident he also saw one person coming to the house of the deceased on a car and after sometime he heard hue and cry on the road and saw someone stabbing his brother, who was immediately taken to the MRM Hospital. Thus, PW-2 also claimed himself to be the eye-witness of the prosecution and it is seen that PW-3, PW-4 & PW-5 are the eye-witnesses to the prosecution case and the accused stabbed the deceased n their presence and they claimed that they have seen the incident of stabbing by the accused/appellant to the deceased. More so, PW-4 is also one of the victims who also sustained stab injury on his left hand when he tried to stop the accused from stabbing the deceased/victim. The ocular evidence of the PW-4 also completely corroborates the medical evidence of PW-7 who examined the PW-4 in the night of incident when he brought the deceased to MRM Hospital, Kokrajhar. 25. PW-6 is not an eye-witness but, she supported the case of the prosecution to the extent that on the day of incident there was a marriage party in the room of PW-3 and she got the information in the night itself from PW-5 that the accused inflicted stab injury on Sibu. PW-9 also claimed her presence in the room of PW-3 Risima where a marriage party was organised and she was also present when there is a quarrel between the accused and his wife. PW-9 also claimed her presence in the room of PW-3 Risima where a marriage party was organised and she was also present when there is a quarrel between the accused and his wife. Thus, she also corroborated the case of the prosecution to the extent that there was marriage party in the room of PW-3 wherein a quarrel broke down between the accused and his wife and later on she came to know that the deceased died. 26. Further from the evidence of the doctor i.e. PW-8 it is seen that the ocular evidence of the prosecution witnesses completely corroborates the medical evidence wherein he found stab injury on the deceased’s body which punctured the lung and some major vessels and hemothorax was also found at the time of examination. The only point raised by the defence is that the doctor also opined that there was a hypotension and shock and pulmonary arrest. But, from the opinion of the doctor it is very much evident that the death was caused due to penetrating wound on the left side of the chest which even penetrated the lung. However, subsequently due to shock, the person may had the cardio pulmonary arrest. But, the cause of injury found was ante mortem in nature and he found that out of injury on his chest, which also penetrated the lung, leading to hemothorax. Thus, the medical evidence completely corroborates the ocular evidence of PW-3, PW-4 & PW-5, who are eye-witnesses of the prosecution and saw him stabbing with a knife. There is nothing to disbelieve PW-3, PW-4 & PW- 5 who categorically deposed that accused came in front of the house of the deceased when the PW-3 & PW-5 went for help and to settle the matter as they were chased by accused and threatened to kill them. This part of evidence also could not be rebutted by the prosecution and there is complete corroboration with the other victim PW-4 who was very much present at the time of incident along with the deceased. His presence in the house of the deceased is also not disputed and more so, he is one of the victims who also sustained sharp cut injury on his left hand, while he was trying to restrain the deceased. 27. His presence in the house of the deceased is also not disputed and more so, he is one of the victims who also sustained sharp cut injury on his left hand, while he was trying to restrain the deceased. 27. It is also not a case of the defence that due to a previous grudge or enmity these PWs who are stated to be the eye-witnesses of the prosecution could depose falsely against the accused/appellant. Rather from the evidence it is seen that on the day of incident a marriage party was organised in the room of PW-3 where the PW-5 and PW-9 were also present. It also reveals that during the marriage party for some misbehaviour with a girl called Joba the quarrel broke out and only in searching the wife of the accused, the accused threatened both the girls i.e. PW-3 and PW-5. It is also evident that on the day of incident when the deceased approached the accused for settlement of the matter, the entire incident had happened where the deceased was murdered by the accused/appellant. There is not such contrary or major omission even in the evidences of PWs to disbelieve them, especially PW-3, PW-4 & PW-5, who are also the eye-witnesses to the prosecution case. 28. The learned counsel Ms. Medhi during argument has raised the issue that the prosecution failed to examine some of the vital witnesses i.e. the wife of the accused and the girl called Joba who was misbehaved by the accused and the house owner from whose house the accused/appellant was apprehended. But, from the facts of the case it is seen that they are not so vital for the prosecution case and the quarrel between the husband and wife for misbehaviour with a girl called Joba may not be so relevant to the incident which has occurred, wherein a person died out of stab injury caused by the accused/appellant. 29. During argument Ms. Medhi the learned counsel for the appellant also raised the issue that the accused got arrested only from a place called Runikhata which is about 50/60 kilometers from the Kokrajhar police station. 29. During argument Ms. Medhi the learned counsel for the appellant also raised the issue that the accused got arrested only from a place called Runikhata which is about 50/60 kilometers from the Kokrajhar police station. But, from the evidence of the PW-10 i.e. the I/O, it is seen that the police officers from the Kokrajhar P.S. went to the place called Runikhata getting an information of his presence on the night itself and apprehended the accused/person in the midnight from one house at Runikhata. From the seizure list also it is seen that the seizure list was prepared at about 2:20 AM on 20.05.2021 and it is quite obvious that the incident took place in the night of 19.05.2021. Thus, the date and time of the seizure also supports the case of the prosecution that the accused was apprehended from a far distance from police station at Runikhata and in the dawn of 20.05.2021 the seizure list was prepared and the accused got apprehended. 30. It is a settled law that the evidence of the injured victim should be kept in a higher pedestal and the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence. In case of Abdul Sayeed & Ors. Vs. State of Madhya Pradesh , reported in (2010) 10 SCC 259 , it has been held that:- “where a witness to the occurrence has himself has injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built – in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.” 31. In the instant case also it is seen that PW-4 is one of the witnesses who was present along with the deceased in the day of incident. He also sustained stab injury on his left hand when he tried to restrain the accused/appellant in assaulting. Further from the discussion of the PWs it is seen that there is nothing to disbelieve the PW-4 or there is no evidence that due to some previous enmity with the accused/appellant he deposed falsely against him to disbelieve him. Thus there is no reason to disbelieve the evidences of PW-4 along with PW-3 and PW-5, as stated above. 32. Further from the discussion of the PWs it is seen that there is nothing to disbelieve the PW-4 or there is no evidence that due to some previous enmity with the accused/appellant he deposed falsely against him to disbelieve him. Thus there is no reason to disbelieve the evidences of PW-4 along with PW-3 and PW-5, as stated above. 32. Thus from the discussion made above it is seen that the prosecution could establish that the accused/appellant caused the injuries on the deceased as well as the PW-4 by using his knife and thus for the said injury the deceased died in the hospital. Initially the case was registered u/s 302 IPC and the charge is also accordingly framed under the said section. But, while passing the order, the learned Sessions Judge had held that it may not be a case u/s 302 IPC. But, it is an offence committed u/s 304 Part-II IPC and accordingly the accused was convicted u/s 304 Part-II IPC along with 324 IPC for voluntarily causing hurt to PW-4 with a sharp object. While convicting the accused/appellant u/s 304 Part- II, the learned Sessions Judge while passing the judgment & order it is held that the case falls under Exception 4 and accordingly convicted him u/s 304 Part-II IPC. 33. Exception 4 of Section 300 IPC read as under: "Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner." 34. To invoke Exception 4 of Section 300, 4 (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, (iv) the assailant by not 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. But, the offender must not have taken any undue advantage or acted in a cruel manner. 35. The Hon'ble Supreme Court in the Case of Anil Kumar Vs. But, the offender must not have taken any undue advantage or acted in a cruel manner. 35. The Hon'ble Supreme Court in the Case of Anil Kumar Vs. The State of Kerala (Criminal Appeal No. 2697 of 2023) has held that "the exception clearly in unequivocal term states that it would be applicable where culpable homicide is committed not only without premeditated mind in a sudden fight or quarrel but also without the offender taking ‘undue advantage’ of the situation." 36. Here in the instant case also it is seen that there was no such pre- meditated mind of the accused/appellant to commit murder of the deceased and it was only due to a sudden fight the accused/appellant inflicted injuries on the chest of the deceased with a knife which he was carrying and it also reveals that the entire incident had happened in a heat of passion and there is no evidence on record that the accused had taken any undue advantage or acted in a cruel manner. Further, it also reveales that there was no premeditated plan to cause death of the deceased by the accused/appellant. In the same time it is also fact that there is no previous grudge or enmity with the deceased to commit murder of the deceased and the entire incident had happened suddenly in a heatof passion. 37. In view of above, this Court also is of the opinion that the learned Sessions Judge has rightly passed the order of conviction not u/s 302 IPC but, u/s 304 Part-II IPC along with 324 IPC. 38. Considering the decision made above, this Court is of the opinion that the learned Sessions Judge has made no error while passing the judgment of conviction u/s 304 Part-II and Section 324 IPC and hence no interference is required in the judgment & order passed by the learned Sessions Judge, Kokrajhar in Sessions Case No. T1/24/2021 (corresponding to G.R. Case No. 625 of 2021). 39. With the above observations, the criminal appeal stands dismissed and disposed of accordingly.