Delhi High Court

Ashok Kumar vs State on 31 January, 2014

Author: Kailash Gambhir

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Judgment delivered on: January 31, 2014

+       CRL.A. 229/2002
        ASHOK KUMAR                                       ..... Appellant
                           Through:      Mr. Avninder Singh, Advocate.

                           versus
        STATE                                              ..... Respondent
                           Through       Mr. Sunil Sharma, APP with Sub-
                                         Inspector Manoj Kumar, Police
                                         Station Lodhi Colony, New Delhi.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA
                     JUDGMENT

KAILASH GAMBHIR, J

1. Challenge in the present appeal is the impugned judgment dated 3rd

April, 2001 and order on sentence, dated 4th April, 2001, whereby the

appellant has been convicted for the offence punishable under Sections

302 and 307 of Indian Penal Code, 1860 (hereinafter referred to as

"IPC"), and has been sentenced to undergo imprisonment for life together

with payment of fine of Rs. 500/- under Section 302 IPC and rigorous

imprisonment for a period of 7 years with fine of Rs.500/- under Section

307 IPC. Both the sentences were ordered to run concurrently.

2. The case of the prosecution in brief is as under:-

"That on 17.11.1997 at about 08:00 p.m. while deceased and his son were sitting in their shop, Ashok Kumar (accused) came there and sat on a table to which PW-1 raised objection on the ground that accused was a man of bad character. At this accused became infuriated and started using filthy language and uttered that he would just teach a lesson to him and having said that he took out a knife from the pocket of his trouser and gave a stab wound injury to PW-1 in his abdomen and when he was questioned by the deceased, he also gave a stab wound on the left side of deceased under the armpit. The deceased fell down profusely bleeding and was immediately removed to hospital, where he was declared "brought dead" by the doctors."

3. To prove its case the prosecution in all examined 14 witnesses.

After the evidence of the prosecution, the statement of the accused was

recorded under Section 313, Cr.P.C., in which he denied all the

incriminating evidence, as were put to him and pleaded his innocence and

false implication in the case. He also claimed that the injury on the person

of the deceased- Badle and his son- Vijay were caused by one Rinku and

not by him. The accused however, did not lead any evidence in his

defence.

4. Addressing the arguments on behalf of the appellant, Mr. Avninder

Singh, Advocate strenuously argued that the appellant has been falsely

implicated in this case while the actual culprit of the crime namely-

Rinku got away from the case scot free. Submissions raised by the

learned counsel for the appellant was that Mr. Yasin (PW-2) in his

deposition clearly disclosed about the presence of Rinku at the time of the

alleged incident but astonishingly, PW-1 not only denied the presence of

Rinku at the time of the alleged incident but also denied his acquaintance

with him. Learned counsel for the appellant further submitted that

because of such a brazen denial on the part of PW-1, about the presence

of Rinku at the time of incident, no reliance can be placed on his

testimony to inculpate the appellant. Learned counsel for the appellant

further argued that the appellant was arrested, when he was present in

front of the house, and this fact would again show that the appellant was

easily accessible to the police and had never tried to abscond and if he

would have committed the crime, then certainly he would not have been

present in his house. Learned counsel for the appellant also argued that

the story of the prosecution that the appellant was carrying a dagger of a

length of 28.6 cms in his back trouser's pocket is highly unreliable as it is

impossible to carry such a dagger in a back pocket of the trouser, for it

cannot fit into the same. The other contention raised by the learned

counsel for the appellant was that the recovery of the weapon of offence,

was also highly suspicious as no criminal after committing the crime

would keep carrying the weapon of offence with him. Learned counsel

for the appellant further argued that no independent witness was joined at

the time of the recovery of the dagger from the appellant.

5. Learned counsel for the appellant also argued that even the FSL

Report, Ex. PX & PY is also questionable as no blood of the blood group

matching the blood group of deceased was found on the clothes of the

accused. Learned counsel for the appellant also argued that the

prosecution has also failed to disclose any motive on the part of the

appellant to carry out the murder of the deceased or to cause any injury to

Vijay (PW-1). Inviting attention of this court to the deposition of PW-1,

learned counsel for the appellant submitted that in his deposition he

merely stated that the present accused came to their shop and sat on a

table and when he was asked to get up from the table, he took out a knife

from his pocket and gave one blow on the left side under the armpit of his

father and one knife blow on the right side of his abdomen. Contention

raised by the learned counsel for the appellant was that the mere fact that

the accused was asked not to sit on a table could not provoke him to such

an extent that he will go on to murder the deceased. Such a version of the

prosecution is highly improbable as per the contention raised by the

learned counsel for the appellant.

6. Learned counsel for the appellant also argued that the material

incriminating evidence, necessary for the conviction of the appellant,

under Section 302 IPC, were not put to the appellant while recording his

statement under Section 313 of Cr.P.C. and such failure on the part of the

court also renders the conviction of the appellant, under Section 302 IPC,

untenable.

7. The other alternative plea raised by the learned counsel for the

appellant was that, at the best, the appellant may be held guilty for

committing an offence punishable under Section 304 Part II and not

under Section 302 IPC. To support his submissions, learned counsel for

the appellant submitted that as per the case of the prosecution, it was a

single blow that too under the left side of armpit of the deceased, which is

not a vital part of the body and therefore, the conviction of the appellant

under Section 302 IPC is wholly unsustainable. Learned counsel for the

appellant also argued that there was no premeditation on the part of the

appellant to carry out the murder of the deceased and the injury caused to

the deceased was on account of a sudden fight on the spur of a moment

and therefore the evidence of the prosecution is merely suited for a

conviction under Section 304 Part II IPC and not under Section 302 IPC.

Learned counsel for the appellant also submitted that even the injury

caused to PW-1 was simple in nature and this fact would further show

that the appellant had no intention to cause any serious harm to PW-1. In

support of his arguments, learned counsel for the appellant placed

reliance on the following judgments:-

a) Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793

b) Ashraf Ali vs. State of Assam (2008) 16 SCC 328

c) Jagrup Singh vs. State of Haryana (1981) 3 SCC 616

d) Virsa Singh vs. State of Punjab, AIR 1958 SC 465

e) Laxman Kalu Nikalje vs. State of Maharashtra, (1968) 3 SCR 685

f) Dewan Chand vs. State, 1984 Crl.LJ 1045

g) Smt. Sandhya Jadhav vs. State of Maharashtra, (2006) 4 SCC 653

h) Bangaru Venkata Rao vs. State of Andhra Pradesh, 2008 (11) SCALE 16

i) Mahesh Singh @ Rati Ram vs. State of NCT of Delhi (Crl.A.No. 1015/2009 - Delhi High Court) citing Tholan vs. State of Tamil Nadu (1982) 2 SCC 133

j) Ramesh Vithalrao Thakre and Anr vs. State of Maharashtra, (2009) 17 SCC 438

k) Kandaswamy vs. State of Tamil Nadu, 2008 (10) SCALE 315

l) Kapur Singh vs. State of Pepsu, AIR 1956 SC 654

m) Hardev Singh & Anr vs. The State of Punjab, AIR 1975 SC 179

n) Gokul Parashram Patil vs. State of Maharashtra, AIR 1981 SC 1441

o) Chanda @ Chanda Ram, Cr. A. 1285 of 2013 (SC)

p) Gurmukh Singh vs. State of Haryana (2009) 14 SCC 391

8. Based on the above submissions, learned counsel for the appellant

also strongly urged that the impugned judgment and order on sentence

may be set aside or in the alternative, the conviction of the appellant be

converted from the offence punishable under Section 302 IPC to the

offence punishable under Section 304 Part II IPC.

9. Refuting the above contentions raised by counsel for the appellant,

Mr. Sunil Sharma, learned Additional Public Prosecutor for the State

submitted that the prosecution case is an open and shut case, leaving no

room for any doubt that it was the appellant who had brutally killed the

deceased - Badle, without there being any kind of provocation from his

side. Learned APP for the State also argued that the appellant had first hit

Vijay (PW-1), the son of the deceased on the left side of his abdomen and

thereafter he gave a blow to his father on his left side under the armpit.

Learned APP for the State further argued that the dagger used by the

appellant was of abnormal length and the same caused penetrating deep

injuries which pierced intercostals muscle, upper lobe of left lung and

pericardium and left ventricle with depth up to 14 cms. Contention raised

by learned APP for the State was that the appellant with utmost cruelty

inflicted the said single blow and the amount of force deployed by him

caused such deep injury with the depth up to 40 cms piercing the

intercostals muscle and the left lung of the deceased, resulting in his

instant death. Learned APP for the State further submitted that as per the

post mortem report proved on record as Ex.14/A the said injury caused by

the appellant was sufficient in the ordinary course of nature to cause

death and therefore the offence committed by the appellant clearly

attracts Section 302 of IPC and should not be scaled down to the offence

punishable under Section 304 Part I or Part II IPC. Learned APP for the

State further submitted that PW-1 himself had suffered injuries at the

hands of the appellant and there can be no reason to disbelieve the

testimony of an injured eye witness, whose testimony otherwise remained

un-shattered in his cross-examination and whose testimony found

corroboration from the testimony of another eye witness PW-2 and the

medical and forensic evidence proved on record.

10. Based on the aforesaid submissions, learned APP for the State

strongly urged that this court may up held the judgment and order on

sentence passed by the learned trial court.

11. We have heard learned Counsel for the parties at considerable

length and given our thoughtful consideration to the arguments advanced

by them. We have also perused the Trial Court record.

12. Human life is considered to be the most precious gift of God but in

the eyes of criminals, like the appellant, human life has no value and can

be done away with as a routine affair without realising that the death of

any person can play havoc on the life of other family members due to

host of reason. In the present case, the deceased is an unfortunate victim

of the provocation of the appellant - accused who due to a quarrel for a

minute with the son of the deceased went on to give a blow to the

deceased which caused a stab wound injury as deep as 14 cms. and took

away the life of the deceased, without there being any previous enmity or

rivalry between him and the accused.

13. Dealing with the first contention raised by the counsel for the

appellant that the appellant has been falsely implicated in this case while

the actual culprit of the crime namely- Rinku got away from the case scot

free. In the present case PW-1, Vijay denied the presence of any person

namely Rinku on the spot at the time of the alleged incident. However

PW-2, in his testimony alleged that some person namely Rinku was

present on the spot, however he has not attributed any other role to him

and he has been categorical in stating that he saw the accused first hitting

PW-1 and thereafter the deceased, thus corroborating PW-1 on material

facts. More so even the accused did not adduce any evidence in his

defence to prove that the alleged offence was committed by one Rinku

and not him. Apart from this, it is pertinent to mention that PW-1 in the

present case was not just an eye witness but also an injured witness and

therefore his testimony cannot be discarded so easily. In has been held by

the Hon'ble Supreme Court in the matter of Suresh Sitaram Surve v.

State of Maharashtra, AIR 2003 SC 344 that the evidence of injured eye

witnesses, in toto, cannot be discarded on the ground of inimical

disposition towards the accused or the improbability of narrating the

details of actual attack. True, their evidence has to be scrutinized with

caution taking into account the factum of previous enmity and the

tendency to exaggerate and to implicate as many as possible. But on a

perusal of the evidence tested in the light of the broad probabilities, if the

evidence appears to be reliable, then they should be relied upon. Thus in

view of these facts and circumstances we are not convinced with the

contention raised by the Counsel for the appellant that the offence was

actually committed by one Rinku and not the accused, as we do not find

any reason why PW-1, being an injured himself, would falsely name the

accused as a person who committed the offence and not the real culprit.

14. Dealing with the second contention raised by the counsel for the

appellant that the appellant was arrested, when he was present in front of

the house, and this fact would show that the appellant was easily

accessible to the police and did not abscond and if he would have

committed the crime, then certainly he would not have been in front of

his house. In the matter of Baboo and others vs. State of Madhya

Pradesh reported in AIR1994SC171, the Hon'ble Supreme Court held

that the circumstance that the accused did not abscond cannot be

stretched to the extent of rejecting the evidence of the eye-witnesses.

Thus we are not persuaded by this contention of the counsel for the

appellant, as merely because the accused got apprehended from his house

itself, the evidence indicating his guilt cannot be put into cold storage and

it cannot be concluded that the accused has not committed the said

offence.

15. While dealing with the third contention raised by the counsel for

the appellant that the recovery of the weapon of offence, which was a

dagger of the length of 28.6 cms, from the pocket of the appellant, was

highly suspicious as no criminal, after committing the crime, would keep

carrying the weapon of offence with him, we find our self in conformity

with the findings arrived at by the learned trial court that it is not totally

impossible for a dagger to fit into the right pocket of a trouser as being

argued, especially in the light of the fact that it has not been stated by

PW-13 that the dagger was totally inside the pocket so as to be not visible

to others from outside.

16. Dealing with the fourth contention raised by the counsel for the

appellant that no independent witness was joined at the time of recovery

of dagger from the appellant. As per the testimony of PW-13, as soon as

he apprehended the accused, he took a casual search and one dagger was

recovered from right side pocket of the accused, pursuant to which a

personal search memo (Ex. PW1-13/J) was also prepared. During the

cross examination, the defence could not create any dent in the testimony

of PW-13. Thereafter during the examination in chief, PW-1 was

confronted with the said dagger and he recognized it as a dagger with

which accused had attacked him and his father, deceased. Further the

statement of these witnesses was also corroborated by the FSL report

being Ex. PX & PY as well as the post mortem report Ex. PW-14/A. As

per the FSL report, human blood of blood group AB, being the blood

group of deceased, was also detected on this dagger, indicating a link

between the said dagger and the alleged incident. Further as per the post

mortem report, the depth of the injury inflicted upon the deceased is

approx. 14 cms, direction going downwards, medially & forward, which

clearly shows that the accused must be carrying a weapon which is sharp

edged and has long length. All these evidence clearly show that the said

dagger was the same dagger, with which the accused committed the

alleged offence. Thus merely on the ground that no independent witness

has joined the search with police officers, the recovery of weapon of

offence cannot be discredited.

17. Dealing with the next contention raised by the counsel for the

appellant that even as per the FSL Report, no blood of the blood group

matching the blood group of deceased was found on the clothes of the

accused. This contention of the counsel for the appellant is worth

outright rejection as the FSL report clearly states that the blood of the

blood group AB was detected on the clothes of the appellant seized vide

Parcel No.8.

18. Dealing with the next contention raised by the counsel for the

appellant that the prosecution has also failed to disclose any motive on

the part of the appellant. It is a fairly well settled law that failure to

establish the motive for the crime does not throw over board the entire

prosecution case. In a case where the prosecution succeeds in proving its

case with cogent and convincing evidence, the absence of establishing

motive will not prove fatal to the case of the prosecution. Moreover the

present case is based on the eye witness testimony, corroborated in

material terms by the other evidences and therefore we cannot accept the

argument of the Counsel for the appellant that because of the failure of

the prosecution to prove the motive, the appellant could not have been

held guilty for committing the said crime. In the matter of Bipin Kumar

Mondal Vs. State of West Bengal reported in AIR 2010 SC 3638 the

Hon'ble Apex Court held as under:

"In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy."

Thus we do not find any merit in the contention raised by the

Counsel for the appellant.

19. Dealing with the next contention raised by the counsel for the

appellant that the material incriminating evidence, necessary for

conviction of the appellant, under Section 302 IPC, were not put to the

appellant while recording his statement under Section 313 of Cr.P.C. This

argument of the counsel is also devoid of any merit as the examination of

the accused under section 313 Cr.P.C clearly shows that all the evidences

were duly put to him for his explanation.

20. Dealing with the core issue whether the offence committed by the

appellants would only be culpable homicide amounting to murder under

Section 300 IPC clause thirdly or would be culpable homicide not

amounting to murder, under Exception 4 section 300 IPC, let us first

reproduce the said provision which reads as under:-

Section 300 "Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or-

3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

21. Exception 4 to Section 300 of the Code, reads as follows: 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.

Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault."

16. In the landmark judgment of Virsa Singh v. State of

Punjab reported in (1958) 1 SCR 1495, the Hon'ble Supreme Court held

that the following are the four steps of inquiry involved in the offence of

Murder under section 300 IPC, clause thirdly:

        "i.     first, whether bodily injury is present;
        ii.     second, what is the nature of the injury;
        iii.    third, it must be proved that there was an intention to inflict that

particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and iv. fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature."

17. In the present case as per the post mortem report of the deceased

(Ex. PW-14/A), following injuries were inflicted on the deceased by the

accused persons:

"External Injuries:

1. Stab wound over left chest lateral aspect in mid auxiliary line, placed obliquely in 3rd ICS size 4.2 X 1.2 cm, angles acute, on dissection pericardium intercostals muscles, and upper lobe left lung, pericardium & left ventricle. Depth- approx. 14 cms, direction going downwards, medially & forward. Left Haemothorax- approx. 2.5 litre of blood, Hemopericardium approx. 500 ml of blood present.

2. Abrasion over right flank 6 X 7 cms."

18. The cause of death as opined by the doctor (PW-14) who conducted

the post mortem of the deceased was haemorrhagic shock consequent to

stab injury on the left side under the armpit, sufficient to cause death in

the ordinary course of nature.

19. Thus all the above elements are fulfilled, there is an injury on the

left side under the armpit of the deceased; it is a fatal injury; the injury is

the one which the accused intended to inflict and also the injury has been

proved to be sufficient to cause death in the ordinary course of nature.

Thus it has sufficiently been proved that the accused has committed

murder of the deceased under Section 300 IPC. To this extent we do not

find any infirmity in the decision of Learned Trial Court.

20. In order to bring the offence under this exception IV of Section 300

IPC, four things shall be proved by the accused:

        i.      "That the act was without premeditation.
       ii.      There was a sudden quarrel
      iii.      In the heat of passion upon a sudden quarrel there was a sudden
                fight.
      iv.       Offender did not take undue advantage or acted in a cruel or
                unusual manner."

21. In the matter of Pappu v. State of Madhya Pradesh reported in

(2006) 7 SCC 391, the Hon'ble Apex Court almost exhaustively dealt

with the parameters of Exception IV to Section 300 of the Code. The

relevant paras of the judgment are reproduced as under:

22. "13...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 Indian Penal Code is not defined in Indian Penal Code. 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 have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and 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 provision means "unfair advantage. It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 Indian Penal Code is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body on which it was given and several such relevant factors."

22. For this purpose let us recapitulate the facts of the present case once

again. As per the case proved by the prosecution, accused Ashok, came to

the shop of deceased and his son and sat on a table outside the shop. As

per PW-1, when he told the accused to go away from his shop, he took out

a knife from his pocket and gave a stab wound in his abdomen and a stab

wound under left armpit of his father, deceased. His statement was

corroborated in material terms by PW-2 but PW-2 additionally stated that

when PW-1 asked the accused to get up and that he would see him

tomorrow, the accused told PW-1 why to wait for tomorrow, he would see

him now only and then the accused took out a knife from his pocket and

gave a blow to PW-1 in his abdomen and when the deceased questioned

the accused as to why he was hitting his son, the accused also gave a blow

on the left side under the armpit of the deceased. Therefore the entire

incident happened on the spur of a moment. The presence of the accused

was also accidental. There arose a situation in which PW-1 first threatened

the accused and then the accused, in the heat of passion gave a blow to

PW-1, causing him simple injury, however when he was questioned by

the deceased raising his arm, he went on and gave a blow to the deceased

also and unfortunately the injury inflicted by this blow turned out to be

fatal and led to the death of the deceased.

23. There was no enmity between the accused and PW-1 and deceased

from before and thus there was no motive. Although the accused was

carrying knife with him from before, but since there was no motive on the

part of the accused to cause injury to either of them, a mere fact that he

was already carrying knife would not lead to an inference that the accused

had a premeditation to cause the death of the deceased. In almost similar

facts in Mohd. Sultan vs. State reported in 2011 Cri.LJ 4680, where also

the accused had gone to his brother's factory nearby the same gali and

within a gap of 2-3 minutes between the heated exchange of words, he

brought the weapon and murdered the deceased, the Division Bench of

this court took a view that the case is clearly of culpable homicide not

amounting to murder and will fall under exception 4 of Section 300 IPC.

Relevant paragraph of the judgment is reproduced as under:-

24. It is clear from the testimonies of P Ws 8, 9 and 10 that there was no previous enmity between the Appellant Mohd. Sultan @ Kallu and Yamin and his brothers and cousin. It is also apparent from their testimonies that a theft had taken place in the night intervening 17/18.09.1992 in the factory of Mohd. Farukh and his brothers. There was a heated exchange of words on the next night around 9:15 pm between Mohd. Sultan @ Kallu and PW8 Mohd. Farukh, in which the Appellant Mohd. Sultan is said to have questioned Mohd. Farukh as to why the former's name was being dragged in connection with the theft of the previous night. The altercation between the two escalated and resulted in Mohd. Sultan @ Kallu slapping Mohd. Farukh 2/3 times. On the intervention of the other brothers and cousin Mumtaz, Mohd. Sultan left the premises threatening to teach them a lesson. He went to his

brother's factory nearby in the same gali and returned with a knife within 2-3 minutes and immediately thereupon stabbed Yamin who was standing outside the factory with PW9 Yasin. This incident was, of course, seen by PW9 Yasin. Immediately thereafter, Mohd. Sultan @ Kallu ran away from the scene. This is clearly a case of culpable homicide. It would not be murder and would fall under Exception 4 if it was 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. There is no doubt in our minds that the incident took place without premeditation and the time gap between the heated exchange of words and the second incident of stabbing is only of 2-3 minutes, which clearly indicates that it was a sudden fight and there was no time for the tempers to have cooled so as to allow in the concept of premeditation. The tempers had not cooled and, therefore, in our view, the stabbing incident has to be regarded as in the course of a sudden fight in the heat of passion upon a sudden quarrel."

25. A similar situation had arisen in the case of Sukhbir Singh v. State

of Haryana reported in AIR2002SC1168. In that case also there was no

enmity between the parties. The occurrence had taken place when Sukhbir

Singh got mud splashes on account of sweeping of a street by Ram Niwas

and a quarrel ensued. The deceased slapped the Appellant for no fault of

his. The quarrel was sudden and on account of the heat of passion. The

accused went home and came armed in the company of others without

telling them of his intention. The time gap between the quarrel and the

fight was a few minutes only. The Supreme Court observed that it was,

therefore, probable that there was insufficient lapse of time between the

quarrel and the fight which meant that the occurrence was sudden within

the meaning of Exception 4 of Section 300 IPC.

26. In the matter of Krishna Tiwary and Anr. Vs. State of Bihar,

reported in AIR 2001 SC 2410, where also the accused had inflicted knife

blows in the heat of passion without any premeditation and without any

intention that he would cause that injury, the Hon'ble Apex Court held that

the case was covered by Exception 4 to Section 300 of the IPC; the

accused was convicted under Section 304I of the IPC. Relevant

paragraphs of the said judgment is reproduced as under:-

the accused had inflicted knife blows in the heat of passion without any premeditation and without any intention that he would cause that injury, his case was covered within Exception 4 to Section 300 of the IPC; he had been convicted under Section 304I of the IPC.

21 Applying the test laid down in this case, there is no reason as to why the appellants should also not be accorded the benefit of Explanation 4 of Section 300 of the IPC. The conviction of the appellants for the offence of murder is accordingly modified for the offence of culpable homicide not amounting to murder. They are all accordingly convicted under Section 304I of the IPC.

27. It is pertinent to mention that the injury inflicted by the accused to

the deceased went 14 cms deep and proved to be fatal. Thus it is required

to examine as to whether the act of the accused will be called cruel or

unusual. It is a settled position of law that all fatal injuries resulting in

death cannot be termed as cruel or unusual for the purposes of not availing

the benefit of Exception 4 of Section 300 IPC. In the matter of Sukhbir

Singh vs. State of Haryana (Supra), the Hon'ble Supreme Court held as

under:

"The infliction of the injuries and their nature proves the intention of the appellant But causing of such two injuries cannot be termed to be either in a cruel unusual manner. All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. it is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with Bhala caused injures at random and thus did not act in a cruel or unusual manner"

28. In the present case, the accused was already in the process of hitting

PW-1, and when he was questioned by the deceased, he also caused a

blow to the deceased. It shall also be noted that the accused did not hit the

deceased on the vital part of the body rather under the left armpit,

however in the heat of passion the injury caused by the accused proved

fatal and caused the death of the deceased. After inflicting this injury, the

accused did not attempt to cause any other injury. Thus in such

circumstances, it cannot be said that the accused has acted in unusual or

cruel manner.

29. In the view of the facts and circumstances stated above we find that

it has been sufficiently proved on record that there was a sudden quarrel

between the accused and PW-1, on which a sudden fight ensued between