STATE OF RAJASTHAN versus LEELA RAM @ LEELA DHAR

[2018] 13 S.C.R. 621

STATE OF RAJASTHAN

LEELA RAM @ LEELA DHAR

(Criminal Appeal No. 1441 of 2013)

DECEMBER 13, 2018[DR. DHANANJAYA Y CHANDRACHUD ANDM. R. SHAH, JJ.]

Penal Code, 1860: s.304 Part II – Conviction of respondentunder s.302 IPC – High Court modified his conviction to one unders.304 Part II – Prosecution case was that three persons includingthe respondent attacked the victim-deceased and caused seriousinjuries to him – Respondent inflicted an axe injury on the skull ofthe deceased which caused his death – Accused persons were triedfor murder – Trial court convicted the respondent on the basis ofdepositions of PW-1 to PW-4, the medical evidence and recovery ofblood stained axe at the behest of respondent, while acquitted theother two persons – High Court allowed the appeal of respondentin part and convicted him of an offence under s.304 Part II – State’sappeal – Held: Evidence of prosecution witnesses was to the effectthat the respondent was the author of the injury and wielded theaxe, as result of which death was the immediate and naturalcause – PW-4 was an injured eye-witness and, therefore, hispresence was established beyond all reasonable doubt – The injurywhich was caused to the deceased was [within the meaning of s.300(fourthly)] of nature that the person committing the act knew thatit was so imminently dangerous that it must in all probability causedeath or such bodily injury as is likely to cause death – In suchcircumstances, the judgment of High Court was manifestly perverseand totally contrary to the evidence on the record – Conviction ofrespondent by trial court under s.302 is restored.

Allowing the appeal, the Court

HELD: 1. PW-2, who is the complainant, has deposed tothe genesis of the incident. According to him, the deceased wasseized upon by the respondent (together with the two co-accused).The respondent, inflicted an axe blow on the skull of the deceased.The evidence of PW-2 on the involvement of the respondent found

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Aabundant corroboration in the deposition of PW-1, PW-2, PW-3and PW-4. PW-4 was an injured eye-witness. His presence wasthus established in any event beyond all reasonable doubt. Fromthe evidence of these witnesses coupled with the medicalevidence, it emerged that the respondent inflicted an axe blow inthe centre of the skull of the deceased. The evidence of PW-5Bwas clear in indicating that the injury was caused with the help ofa sharp edged weapon. PW-5 also stated that the cranium andspinal cord and the parietal bone was fractured. The injury on theskull, led to coma and was the cause of death. Coupled withthese circumstances was the recovery of the weapon of offenceCwhich was found to be blood stained. [Para 11] [626-G-H;627-A-B]2. The High Court proceeded entirely on the basis ofsurmise in opining that the death was caused without pre-meditation and on the spur of the moment. In arriving at thatDinference, the High Court has evidently ignored the evidence,bearing upon the nature of the incident, the consistent accountthat it was the respondent who had inflicted the blow, the weaponof offence and the vital part of the body on which the injury wasinflicted. The fact that the co-accused were acquitted by the TrialCourt, was no reason to doubt the testimony of all the eye-Ewitnesses which implicated the respondent. The death wasattributable to the assault by the respondent on the deceased,during the course of the incident. Having regard to the facts andcircumstances of the case, it is evident that the injury which wascaused to the deceased was [within the meaning of Section 300F(Fourthly)] of nature that the person committing the act knewthat it was so imminently dangerous that it must in all probabilitycause death or such bodily injury as is likely to cause death. UnderException 4, culpable homicide is not murder if the stipulationscontained in that provision are fulfilled. They are: (i) that the actwas committed without pre-meditation; (ii) that there was aGsudden fight; (iii) the act must be in the heat of passion upon asudden quarrel; and (iv) the offender should not have taken undueadvantage or acted in cruel or unusual manner. The deceasedwas unarmed when he was seized upon and assaulted by therespondent. In these circumstances, the judgment of the HighHCourt was manifestly perverse and was totally contrary to theevidence on the record. The conviction of the respondent by the

trial court under section 302 of the Penal Code is restored.[Paras 13, 15-18] [633-E-G; 634-B-F]

Mahesh Balmiki v. State of MP (2000) 1 SCC 319 ;Hukam Chand v. State of Haryana (2002) 8 SCC 421 :[2002] 3 Suppl. SCR 202 ; Dhirajbhai GorakhbhaiNayak v. State of Gujarat (2003) 9 SCC 322 : [2003] 1Suppl. SCR 754 ; Pulicherla Nagaraju v. State of AP(2006) 11 SCC 444 : [2006] 4 Suppl. SCR 633 ;Singapagu Anjaiah v. State of P (2010) 9 SCC 799 :[2010] 7 SCR 703 ; Som Raj v. State of P (2013) 14SCC 246 : [2013] 4 SCR 433 – relied on

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1441 of 2013.

From the Judgment and Order dated 13.08.2008 of the High Courtof Rajasthan at Jaipur in D.B. Criminal Application No. 580 of 2005.

Ms. Ruchi Kohli, Amit Sharma, Ms. Nidhi Jaswal, Ms. SrishtiMishra, Advs. for the Appellant.

Harsh Jain, Abhinav Gupta, Ms. Ankita Gupta, Abhinav Deshwal,Shailender Sharma (for Ms. Pratibha Jain), Advs. for the Respondent.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

1. This appeal arises from judgment of Division Bench of theHigh Court of Judicature for Rajasthan dated 13August 2008. The HighCourt, while allowing the appeal filed by the respondent, convicted himunder Section 304 Part-II of the Indian Penal Code (‘Penal Code’) insteadof Section 302. The High Court sentenced the respondent to the periodwhich was already undergone, stated to have been approximately fiveyears and five months. The State is in appeal against the decision.

A2. First Information Report was lodged by Satya NarayanSwami(PW-2) at Singhana (Rajasthan),that at about 6.30 p.m. on 27 February2003, the deceased-Ram Kumwar Swami - was proceeding for somework at achakki. While he was passing by the hand pump near thehouse of Sriram Swami, three persons - Rajesh, Jagdish and Leela Ram(the respondent herein) attacked the deceased and caused serious injuriesBto him. The case of the prosecution is that the respondent inflicted anaxe injury on the skull of the deceased which was the cause of death.Rajesh, Jagdish and the respondent were tried for offences under Sections341, 323, 336 and 302, read with Section 34 of the Penal Code. Thecase of the prosecution rested principally on the evidence of PW-1CBasanti Devi, the complainant PW-2 Satya Narayan Swami, PW-3 NathuRam and PW-4 GyarsiLal. PW-1, PW-2, PW-3 and PW-4 were all eye-witnesses to the incident. PW-4 is also an injured witness.

3. The cause of death, as deposed to by PW-5 Dr. Hari SinghGothwal, was the injury which was sustained on the skull by the deceased.

DWhile conducting the post-mortem, PW-5 observed the following injuryon the body of the deceased:

“Injury No.1 :- Crush injury 10 cm x 0.5 cm x depth ofbone in the middle of the skull. The left eye was closed asan impact of this injury. The injury was caused with thehelp of sharp edged weapon. The injury was caused withinEthe duration of six hours.”

4. PW-4 GyarsiLal had also sustained the following injuries :

“(1) Contusion 5x3 cm in the lower region of

left thigh.F (2) Abrasion and deformity 1x0.5 cm in thelower region of the right forearm.”

5. The Trial Court believed the depositions of PW-1, PW-2, PW-3 and PW-4. Adverting to the evidence of PW-2, the Trial Court heldthat the accused had launched an assault on his brother with an intentionGto grab the possession of his land. All the above eye-witnesses statedthat the respondent-Leela Ram had attacked the deceased with an axeon the skull. PW-5 stated that the injury on the skull was the cause ofdeath and was sufficient to cause death in the ordinary course. Besidesthe ocular evidence of PW-1 to PW-4, the medical evidence andthedeposition of PW-5, the prosecution relied on the recovery of bloodHstained axe at the behest of the respondent. The axe was recovered

vide seizure memo Exh. P-18. The Trial Court convicted Leela Ram forthe offences under Sections 341, 323 and 302 of the Penal Code. Hewas, however, acquitted of the offence under Section 336. Rajesh andJagdish were acquitted by the Trial Court.

6. Criminal Appeal No.580/2005 was filed by the respondentagainst the judgment of conviction. criminal revision, being CriminalRevision Petition No.958/2005, was filed by the complainant against theacquittal of the two co-accused.

7. The High Court by its judgment dated 13 August 2008, allowedthe appeal of the respondent in part and convicted him of an offenceunder Section 304 Part-II of the Penal Code. In coming to this conclusion,the High Court adverted to the following circumstances, which in itsview emerged from the evidence adduced by the prosecution:

“(i) Prosecution is able to establish that appellant inflictedinjury with blunt object on the head of the deceased.

(ii)Injury on head attributed to appellant getscorroboration from the post mortem report.

(iii) The death was caused without premeditation and theappellant did not act in cruel or unusual manner.Incident appears to have occurred on spur ofmoment. Something sparked suddenly and appellantinflicted single blow on the head of Ram Kumar.

(iv) There is no trustworthy evidence on record to provethat co-accused Rajesh Kumar and Jagdish Prasad hadshared common intention with the appellant.”

8. The revision filed by the complainant was dismissed.

9. Assailing the judgment of the High Court, learned counselappearing on behalf of the State of Rajasthan submits that :

(i)The consistent account of four eye-witnesses - PW-1,PW-2, PW-3 and PW-4 indicates that it was the respondentwho had inflicted an injury with an axe on vital part of thebody of the deceased, namely, his skull;

(ii) The medical evidence in the form of the post-mortem reportand the deposition of PW-5 establishes beyond doubt that thedeath was caused as result of the injury sustained becauseof sharp-edged weapon; and

A(iii) The fact that the injury was caused by the axe is alsocorroborated by its recovery vide seizure memo Exh.P-18and by the FSL report which reported blood stains on theaxe.

Learned counsel submits that the finding of the High Court thatBanincident took place without pre-meditation, so as to bring the casewithin the Exception 4 of Section 300 of the Penal Code, is based on noevidence whatsoever. On the contrary, the evidence clearly establishesthat the respondent was armed with lethal weapon which was used toinflict serious injury on vital part of the body of the deceased.Learnedcounsel submits that the mere fact that there was single blow, is not aCcircumstance which would warrant the conviction under Section 302being altered to one under Section 304 Part-II. On the contrary, learnedcounsel submitted that the case would fall under Section 300 (Fourthly)since the act of the respondent was so imminently dangerous that itmust in all probability cause death or such bodily injury as is likely toDcause death.

10. On the other hand, learned counsel appearing on behalf of therespondent submitted that the case of the prosecution has beendisbelieved by the Trial Court in regard to the two co-accused - Rajeshand Jagdish. According to this submission, the prosecution had soughtto adduce evidence to the effect that lathi had been used in the courseEof the incident by the two co-accused. This was not accepted by theTrial Court. Hence, emphasis was placed on the evidence of PW-5 thatthe injury could have been caused due to blunt object. The judgmentof the High Court convicting the respondent under 304 Part-II, it wasurged, ought not to be disturbed.F

11. In assessing the rival submissions, it would be necessary toadvert to the evidence of the four eye-witnesses who have been believed,both by the Trial Court and by the High Court, insofar as the complicityof the respondent is concerned. PW-2, who is the complainant, hasdeposed to the genesis of the incident. According to him, when theGdeceased was passing by the house of Sri Ram Swamy, he was seizedupon by the respondent (together with the two co-accused). Leela Ram,the respondent, inflicted an axe blow on the skull of the deceased. Theevidence of PW-2 on the involvement of the respondent finds abundantcorroboration in the deposition of PW-1 Basanti Devi, the complainantPW-2 Satya Narayan Swami, PW-3 Nathu Ram and PW-4 Gyarsi Lal.HPW-4, is an injured eye-witness. His presence is hence established inany event beyond all reasonable doubt. From the evidence of thesewitnesses coupled with the medical evidence, it has emerged that therespondent inflicted an axe blow in the centreof the skull of the deceased.The evidence of PW-5 was clear in indicating that the injury was causedwith the help of sharp edged weapon. PW-5 also stated that thecranium and spinal cord and the parietal bone had been fractured. Theinjury on the skull, lead to coma and was the cause of death.Coupledwith these circumstances is the recovery of the weapon of offence whichwas found to be blood stained. On the basis of this unimpeachableevidence, it is clear that : (i) death was caused as result of the injuryinflicted upon the skull of the deceased by the use of the axe; and (ii) therespondent was the author of the injury and wielded the axe, as resultof which death was the immediate and natural cause.

12. In Mahesh Balmikiv State of MP[1], this Court while decidingthe question of whether single blow with knife on the chest of thedeceased would attract Section 302, held thus:

“9. … there is no principle that in all cases of single blow Section302 IPC is not attracted. single blow may, in some cases, entailconviction under Section 302 IPC, in some cases under Section304 IPC and in some other cases under Section 326 IPC. Thequestion with regard to the nature of offence has to be determinedon the facts and in the circumstances of each case. The nature ofthe injury, whether it is on the vital or non-vital part of the body,the weapon used, the circumstances in which the injury is causedand the manner in which the injury is inflicted are all relevantfactors which may go to determine the required intention orknowledge of the offender and the offence committed by him. Inthe instant case, the deceased was disabled from saving himselfbecause he was held by the associates of the appellant whoinflicted though single yet fatal blow of the description notedabove. These facts clearly establish that the appellant had theintention to kill the deceased. In any event, he can safely beattributed the knowledge that the knife-blow given by him was soimminently dangerous that it must in all probability cause death orsuch bodily injury as is likely to cause death.”

AIn Hukam Chand v State of Haryana[2], this Court while dealingwith the question of whether blow on the skull with pharsa wouldattract conviction under Section 302, held thus :

“15. Coming back to the issue raised as regards the invocation ofSection 304 Part II IPC, strong reliance was placed on decisionof this Court in Pularu v. State of M.P.[1993 SCC (Cri) 1023 :AIR 1993 SC 1487] , wherein K. Jayachandra Reddy, J., as HisLordship then was, speaking for the Bench in para 7 of the Reportstated: [SCC (Cri) p. 1025, para 7]

“7. That takes us to the nature of the offence. All the threeeyewitnesses have spoken that the appellant dealt only one blowwith the agricultural implement. Having regard to the time andthe surrounding circumstances it is difficult to hold that he intendedto cause the death of the deceased particularly, when he was notarmed with any deadly weapon as such. As an agriculturist hemust have been having tabbal in his hands and if in thosecircumstances he dealt single blow it is difficult to convict himby invoking clause 1stly or 3rdly of Section 300 IPC. It cannot besaid that he intended to cause that particular injury whichunfortunately resulted in the fracture of bones. Therefore, theoffence committed by him would be one amounting to culpablehomicide punishable under Section 304 Part II IPC…

16. While it is true that there was only one blow but the medicalevidence on record definitely indicates that the severity of theblow was such that it was sufficient for causing death. In Pularu[1993 SCC (Cri) 1023 : AIR 1993 SC 1487] the appellant dealtonly one blow with an agricultural implement. This Court havingregard to the fact that Pularu was an agriculturist came to aconclusion that question of there being any intent to cause deathof the deceased would not arise since he was not armed with anydeadly weapon as such. Presently, however, the situation is slightlydifferent. Hukam Chand was in the house. He was called in andhe arrived at the scene and place of occurrence with pharsawhich by all means is deadly weapon and it is this pharsa whichwas used to hit the deceased at his head resulting in his immediatecollapse and subsequent death. The story set up by the appellant,as noticed hereinbefore belies the incident and cannot but beascribed to be totally fabricated one. Injuries suffered by Udai

H2(2002) 8 SCC 421

Chand, the deceased, cannot be said to be inflicted as matter ofchance while grappling with each other. The nature of the injuries,as noticed hereinbefore, depicts it otherwise. If that be the casewhich stands to reason that there was in fact deliberate pharsa-blow on the deceased, then and in that event, simple question byitself would negate the plea of the accused, namely, as to thereason why Hukam Chand arrived at the place of occurrencewith pharsa in his hand. The factum of bringing in the pharsa atthe place of occurrence from his house when he was sent forcannot be ignored. It definitely indicates the intent to use it andthereby cause death.”

In Dhirajbhai Gorakhbhai Nayak v State of Gujarat[3],this Courtwhile discussing the ingredients of the Exception 4 of Section 300 IPC,held thus:

“11. The fourth exception of Section 300 IPC covers acts done ina sudden fight. The said Exception deals with case of prosecution(sic provocation) not covered by the first exception, after whichits place would have been more appropriate. The Exception isfounded upon the same principle, for in both there is absence ofpremeditation. But, while in the case of Exception 1 there is totaldeprivation of self-control, in case of Exception 4, there is onlythat heat of passion which clouds men’s sober reason and urgesthem to deeds which they would not otherwise do. There isprovocation in Exception 4 as in Exception 1, but the injury doneis not the direct consequence of that provocation. In fact,Exception 4 deals with cases in which notwithstanding that blowmay have been struck, or some provocation given in the origin ofthe dispute or in whatever way the quarrel may have originated,yet the subsequent conduct of both parties puts them in respect ofguilt upon an equal footing. “sudden fight” implies mutualprovocation and blows on each side. The homicide committed isthen clearly not traceable to unilateral provocation, nor could insuch cases the whole blame be placed on one side. For if it wereso, the Exception more appropriately applicable would beException 1. There is no previous deliberation or determination tofight. fight suddenly takes place, for which both parties aremore or less to be blamed. It may be that one of them starts it, butif the other had not aggravated it by his own conduct it would not

3(2003) 9 SCC 322

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Ahave taken the serious turn it did. There is then mutual provocationand aggravation, and it is difficult to apportion the share of blamewhich attaches to each fighter. The help of Exception 4 can beinvoked if death is caused (a) without premeditation, (b) in suddenfight, (c) without the offenders having taken undue advantage oracted in cruel or unusual manner, and (d) the fight must haveBbeen with the person killed. To bring case within Exception 4 allthe ingredients mentioned in it must be found. It is to be noted thatthe “fight” occurring in Exception 4 to Section 300 IPC is notdefined in IPC. It takes two to make fight. Heat of passionrequires that there must be no time for the passions to cool downCand in this case, the parties had worked themselves into fury onaccount of the verbal altercation in the beginning. fight is acombat between two and more persons whether with or withoutweapons. It is not possible to enunciate any general rule as towhat shall be deemed to be sudden quarrel. It is question offact and whether quarrel is sudden or not must necessarily dependDupon the proved facts of each case. For the application of Exception4, it is not sufficient to show that there was sudden quarrel andthere was no premeditation. It must further be shown that theoffender has not taken undue advantage or acted in cruel orunusual manner. The expression “undue advantage” as used inEthe provision means “unfair advantage”.”

In Pulicherla Nagaraju v State of P[4 ], this Court while decidingwhether case falls under Section 302 or 304 Part I of 304 Part II, heldthus :

“29. Therefore, the court should proceed to decide the pivotalFquestion of intention, with care and caution, as that will decidewhether the case falls under Section 302 or 304 Part I or 304 PartII. Many petty or insignificant matters — plucking of fruit,straying of cattle, quarrel of children, utterance of rude word oreven an objectionable glance, may lead to altercations and groupclashes culminating in deaths. Usual motives like revenge, greed,Gjealousy or suspicion may be totally absent in such cases. Theremay be no intention. There may be no premeditation. 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 case thatthere was no intention to cause death. It is for the courts to ensurethat the cases of murder punishable under Section 302, are notconverted into offences punishable under Section 304 Part I/II, orcases of culpable homicide not amounting to murder, are treatedas murder punishable under Section 302. The intention to causedeath can be gathered generally from combination of few orseveral of the following, among other, circumstances: (i) natureof the weapon used; (ii) whether the weapon was carried by theaccused or was picked up from the spot; (iii) whether the blow isaimed at vital part of the body; (iv) the amount of force employedin causing injury; (v) whether the act was in the course of suddenquarrel or sudden fight or free for all fight; (vi) whether the incidentoccurs by chance or whether there was any premeditation; (vii)whether there was any prior enmity or whether the deceasedwas stranger; (viii) whether there was any grave and suddenprovocation, and if so, the cause for such provocation; (ix) whetherit was in the heat of passion; (x) whether the person inflicting theinjury has taken undue advantage or has acted in cruel andunusual manner; (xi) whether the accused dealt single blow orseveral blows. The above list of circumstances is, of course, notexhaustive and there may be several other special circumstanceswith reference to individual cases which may throw light on thequestion of intention. Be that as it may.”In Singapag Anjaiah v State of P[5], this Court while decidingthe question of whether blow on the skull of the deceased with acrowbar would attract Section 302, held thus :

“16. In our opinion, as nobody can enter into the mind of theaccused, his intention has to be gathered from the weapon used,the part of the body chosen for the assault and the nature of theinjuries caused. Here, the appellant had chosen crowbar as theweapon of offence. He has further chosen vital part of the bodyi.e. the head for causing the injury which had caused multiplefractures of skull. This clearly shows the force with which theappellant had used the weapon. The cumulative effect of all thesefactors irresistibly leads to one and the only conclusion that theappellant intended to cause death of the deceased.”

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AIn Som Raj v State of P[6], this Court while deciding the questionof whether single blow on the skull with darat would attract convictionunder Section 302, held thus :

“16.2. From the statements of Dr SumanSaxena (PW 4) and DrB.M. Gupta (PW 5), the nature of injuries caused to the deceasedhas been brought out. perusal thereof would leave no room fordoubt that the appellant-accused had chosen the sharp side ofthe darat and not the blunt side. The ferocity with which theaforesaid blow was struck clearly emerges from the fact that theblow resulted in cutting through the skull of the deceased andcaused hole therein, resulting in exposing the brain tissue. Whena blow with deadly weapon is struck with ferocity, it is apparentthat the assailant intends to cause bodily injury of nature whichhe knows is so imminently dangerous, that it must in all probabilitycause death.

16.3. The place where the blow was struck (at the back of theDhead of the deceased) by the appellant-accused, also leads to thesame inference.

16.4. It is not the case of the appellant-accused that the occurrencearose out of sudden quarrel. It is also not his case that the blowwas struck in the heat of the moment. It is not even his case thathe had retaliated as consequence of provocation at the hands ofthe deceased. He has therefore no excuse for such an extremeact.

16.5. Another material fact is the relationship between the parties.The appellant-accused was an uncle to the deceased. In suchFcircumstances, there is hardly any cause to doubt the intent andknowledge of the appellant-accused.

16.6. Besides the aforesaid factual position, it would be incorrectto treat the instant incident as one wherein single blow had beeninflicted by the accused. As many as five witnesses of theoccurrence have stated in unison, that the appellant-accused wasGin the process of inflicting second blow on the deceased, whenthey caught hold of him, whereupon one of them (Mohinder Singh,PW 6) snatched the darat from the appellant-accused, and threwit away. In such situation, it would be improper to treat/determine

the culpability of the appellant-accused by assuming that he hadinflicted only one injury on the deceased.

16.7. Keeping in mind the parameters of the judgments referredto by the learned counsel for the rival parties (which have beenextracted above), we have no doubt in our mind that the appellant-accused must be deemed to have committed the offence of“culpable homicide amounting to murder” under Section 302 ofthe Penal Code, as the appellant-accused Som Raj had struckthe darat-blow with the intention of causing such bodily injury,which he knew was so imminently dangerous, that it would in allprobability cause the death of SardariLal. Having recorded theaforesaid conclusion, we are satisfied, that the appellant-accusedwas justifiably convicted for the offence under Section 302 of thePenal Code and sentenced to undergo rigorous imprisonment forlife, as also, to pay fine of Rs 10,000 (and in default, to undergofurther simple imprisonment for period of one year).

17. In view of our aforesaid conclusions, the instant appeal beingdevoid of merit, is dismissed.”

13. The High Court has, in our view, proceeded entirely on thebasis of surmise in opining that the death was caused without pre-meditation and on the spur of the moment. In arriving at that inference,the High Court has evidently ignored the evidence, bearing upon thenature of the incident, the consistent account that it was the respondentwho had inflicted the blow, the weapon of offence and the vital part ofthe body on which the injury was inflicted.The fact that the co-accused,Rajesh and Jagdish, have been acquitted by the Trial Court, is in ourview no reason to doubt the testimony of all the eye-witnesses whichimplicated the respondent. The death was attributable to the assault bythe respondent on the deceased, during the course of the incident. Havingregard to the above facts and circumstances of the case, it is evidentthat the injury which was caused to the deceased was [within the meaningof Section 300 (Fourthly)] of nature that the person committing the actknew that it was so imminently dangerous that it must in all probabilitycause death or such bodily injury as is likely to cause death.

14. In seeking to place the facts of the present case within theException 4, the High Court has dwelt on whether the incident tookplace without pre-meditation. Exception 4 is extracted below :

A“Exception 4.- Culpable homicide is not murder if it iscommitted without premeditation in sudden fight in theheat of passion upon sudden quarrel and without theoffender having taken undue advantage or acted in cruelor unusual manner.”

15. Under Exception 4, culpable homicide is not murder if thestipulations contained in that provision are fulfilled.They are: (i) that theact was committed without pre-meditation; (ii) that there was suddenfight; (iii) the act must be in the heat of passion upon sudden quarrel;and (iv) the offender should not have taken undue advantage or acted ina cruel or unusual manner.

16. While learned counsel appearing on behalf of the respondentsought to place reliance on the statement of the respondent under Section313 of the Code of Criminal Procedure, 1973, that it was the deceasedwho came to their house and started pelting stones, it is evident that thisdefence has no basis in the evidence.Above all, the deceased wasDunarmed when he was seized upon and assaulted by the respondent.

17. In the above circumstances, we are affirmatively of the viewthat the judgment of the High Court is manifestly perverse and is totallycontrary to the evidence on the record. The interference of this Court iswarranted to obviate complete failure or miscarriage of justice.

18. We allow the appeal and while setting aside the judgment ofthe High Court, restore the conviction of the respondent by the TrialCourt under Section 302 of the Penal Code. The respondent is sentencedto suffer imprisonment for life. The respondent shall forthwith surrenderto his sentence. copy of this order shall be forwarded by the RegistryFto the Chief Judicial Magistrate of the area concerned to securecompliance.

19. Pending application, if any, shall stand disposed of.

Devika Gujral

Appeal allowed.