Exception-4 of section 300 IPC was applied to determine the nature of the offense and the appropriate conviction.

This appeal is directed against the judgment of conviction and order of sentence dated 26.04.2001 passed by the learned 1st Additional Sessions Judge, Gumla in Sessions Trial No. 95 of 1989 convicting the appellant under section 302 IPC and sentencing him to undergo R.I. for life.

2.The prosecution case in short is that the informant-Bandain Devi (PW-1) gave a fardbeyan on 2nd February 1989 at about 6.30 PM stating therein that when she was taking water from the hand-pump situated near her house, she heard noise of quarrel between her husband-Nand Kishore Choudhary (deceased) and her mother-in-law-Manwa Devi. Her husband was telling his mother that she parts with her entire rice to her son-in-law (Damad)-the appellant who was residing with her. In the meantime, the accused suddenly appeared with a tangi and assaulted the deceased on his neck and head, as a result of which, he died at the spot. The occurrence was witnessed by several witnesses including PWs 2 and 5, who have been declared hostile.

3. Mr. A.K. Chaturvedi, learned counsel appearing for the appellant, submitted that at best, the appellant could have been convicted under section 304 part-II IPC. He further submitted that the appellant has remained in jail for about 11 years.

4. Mr. Rajgarhia, learned counsel appearing for the State, supported the impugned judgment.

5. The informant (PW-1), in her evidence, inter-alia said that there was quarrel between the deceased and his mother over sharing of rice, etc between his family and the family of the appellant, who happens to be the brother-in-law (Bahnoi) of the deceased. She also said that her mother-in-law was residing with the appellant, whereas the deceased was residing separately. She also said that her mother-in-law was admitted in hospital and after about a month of the death of the deceased, she also died. PW-4, who is a formal witness, said that the deceased was a drunkard and had wasted his properties and he was trying to sell the property of his mother also which was resisted by her, due to which there was quarrel between the deceased and her mother in which he assaulted his mother also. PWs 2 and 5 have been declared hostile.

PW-5 inter-alia said in paragraph-3 of his deposition that the mother of the deceased told him that the deceased had come with a tangi and when the appellant resisted, the deceased sustained injuries.

PWs 6 and 7 are formal witnesses.

PW-8 is the doctor who conducted autopsy on the dead body of the deceased. He found one lacerated injury on the head caused by hard and blunt substance and one incised wound on the neck caused by sharp cutting weapon.

I.O. has not been examined in this case.

6. From the materials on record, it appears that the deceased had come in the house of the appellant and during quarrel between them, the alleged incident took place. Parties are relatives. The appellant is the brother-in-law (Bahnoi) of the deceased. The appellant was residing separately along with his mother-in-law (mother of the deceased) and the deceased was residing separately. It has also come in the evidence that the deceased had wasted all his property and wanted to sell the property of his mother which was resisted by his mother, due to which there was quarrel between him and his mother. It also appears that the mother of the deceased was also hospitalized and she died after about a month of the death of her son. The prosecution has not proved that there was any premeditation or intention to kill the deceased on the part of the appellant. In our opinion, this case falls under Exception-4 of section 300 IPC.

7. In the result, conviction under section 302 IPC is altered into conviction under section 304 Part-II IPC. So far as the sentence is concerned, it is stated that the appellant has remained in jail for about 11 years. Accordingly, the appellant is sentenced to the period already undergone by him in jail. With this modification in conviction and sentence, this appeal is disposed of. Th