1. Heard Sri Prashant Kumar, learned counsel for the appellant and Sri Rajeev Gupta, learned AGA for the State and perused the record.

This criminal appeal arises out of a judgment and order of the Sessions Judge, Hamirpur dated 4.9.1982 passed in S.T. No. 104 of 1982 whereby the appellant has been convicted and sentenced to undergo imprisonment for life under Section 302 I.P.C. The prosecution case, in brief, is that an FIR was lodged by Kesariya on 25.5.1981 at about 6.15 a.m. in the morning at P.S. Korara, District Hamirpur with regard to an incident which took place at 5.00 a.m. in the morning on the same day. In the FIR, it has been stated that when the deceased Kesariya alongwith his wife Savitri and uncle Bhaiya Lal were going from their house to the place of work and as soon as they reached near the Well of Neelkanth, the accused-appellant Shyam, who was carrying a knife, accosted the deceased Kesariya and uncle Bhaiya Lal as to why he (deceased) has not come to the house of the accused-appellant for doing work and threatened that since you had not come to my house and saying so had assaulted the deceased on the back by the knife as a result of which two injuries were received by the deceased Kesariya and that on shouting of deceased Kesariya his wife and uncle Bhaiya Lal, the accused-appellant ran away from the spot. The FIR was lodged by the deceased himself being the first informant. The police on the basis of this report registered a case under Section 304 IPC against the accused-appellant and as the condition of the deceased Kesariya was deteriorating, he had been taken to the primary health centre, Korara where first aid was given to him. Thereafter, he was advised to be taken to the District Hospital, Hamirpur where the deceased died the same day at about 10.00 am. Thus, later on the case was converted into Section 302 IPC and the case was investigated by Sub Inspector Narain Das Dwivedi, P.S. Korara, who after investigation has submitted the charge-sheet against the accused appellant. The Court below has framed charges against the accused-appellant under Section 302 IPC, to which the accused-appellant has pleaded not guilty.

2. The trial Court, in support of its case, has examined as many as seven witnesses.

Dr. V.N. Mehrotra, who conducted autopsy on the body of the deceased Kesariya, was examined as P.W. 1. He found the following antemortem injuries on the body of the deceased Kesariya:

"(i) Punctured wound 2 1/2 cm x 1/2 cm x chest cavity deep on left side of back, 13 cm below tip of left scapula bone. Margins are clean cut, and inverted. Transversely placed on the back.

(ii) Punctured wound 3 cm x 1/2 cm x abdominal cavity deep on the right side of the waist on back side, below 12th rib and 11 cm above from the iliac bone. Margins are clean cut. Direction of wound No. 1 is above downwards and left to right. Direction of wound No. 2 is back to front."

On internal examination, Dr. V.N. Mehrotra (P.W. 1) found that the left lung in lower portion was punctured through and through, and left chest cavity contained one pint of fluid blood. Diaphragm on left side perforated. Stomach on left side perforated containing about 6 ozs of pasty food material. Liver on right side lacerated. Right side of transverse colon perforated through and through. Right kidney punctured through and through and lacerated. Abdominal cavity contained about 2 pint of blood. On right side 10th intercostal space perforated under injury No. 2. On left side 7th intercostal space perforated under injury No. 1. Dr. V.N. Mehrotra further opined that the death was due to shock and heamorrhage as a result of antemortem injuries and that these antemortem injuries were sufficient to cause death in the ordinary course of nature.

3. Bhaiya Lal, who is the real uncle of the deceased Kesariya and also an eyewitness, was examined as PW2. This witness has corroborated the story of the prosecution. In his examination-in-chief, he stated that when he alongwith deceased Kesariya and Savitri (wife of deceased Kesariya) were going to the house of one Babu Bajaj for doing some work at his house, the accused-appellant Shyam had accosted them near the Well of Neelkanth and had asked deceased Kesariya as to why he had not come to his house for doing the work, to which deceased Kesariya replied that he could not get time to work whereupon the accused-appellant lost tamper and gave two knife blows on deceased Kesariya and thereafter ran away from the spot.

4. Smt. Savitri, who is the widow of the deceased Kesariya, was examined as PW4. She has also corroborated the case of the prosecution.

5. Baba Din, who was examined as PW5, has stated in his examination-in-chief that on the date of occurrence when he came to know about the incident, he had gone to the hospital where he found Kesariya being administered first aid. He further stated that deceased Kesariya got scribed the written report of the occurrence from him, which after being transcribed was read over to Kesariya upon which the deceased Kesariya has put his thumb impression. He has proved the" FIR, which is Ext. Ka-3. On being cross-examined, this witness has stated that deceased Kesariya was not literate and could not speak the correct language. He denied the defence suggestion that Kesariya was not in a condition to speak and that Ext. Ka. 3 is his own creation.

6. Narain Singh was examined as PW6. In his examination-in-chief, he stated that at the relevant time he was working as constable Moharrir at P.S. Korara. He further stated that on 25.5.1981, a written FIR (Ext. Ka-3) was lodged at the police station on the basis of which he prepared formal FIR, which is Ext. Ka-4. He also stated that on the same date, he converted the case under Section 307 IPC and later on very same date he converted the case under Section 302 IPC. In his cross-examination, he stated that the condition of the deceased Kesariya was serious. The deceased was brought to the police station on a cot and was accompanied by Dibia, Savitri, Bhaiya Lal and Ram Kripal.

7. Narain Das Dwivedi, Sub Inspector was examined as PW7. In his examination-in-chief, he stated that on 25.5.1981, he was posted as Sub Inspector at P.S. Korara. He further stated that on 25.5.1981, an FIR was lodged at 6.15 a.m. at P.S. Korara in his presence and after the case was registered he commenced the investigation. He also stated that he recorded the statement of Kesariya (the deceased), Bhaiya Lal, Savitri and constable Moharrir Narain Singh at the police station, thereafter, he went to the scene of occurrence and prepared a site plan. He also recovered the bloodstained and plain earth from the scene of occurrence. He interrogated Dr. Saket Mohan Singh on the same date. He also stated that Anjna Gupta had done the inquest on 25.5.1981 and he proved the same, which is Ext. Ka-11.

8. Dr. Saket Mohan Singh was examined as PW3. In his examination-in-chief, he stated that he was posted as Medical Officer at Primary Health Centre, Korara at the relevant time. He stated that he had given first aid to Kesariya (deceased). He also stated that in the accident register he noted the injury found on the body of deceased Kesariya. He mentioned the following injuries in the accident register:

"(i) Stab wound 0.7" x 4" on left scapula region 3" away mid line.

(ii) Stab wound of same size on right lumber region 2" away mid line."

9. PW3 Dr. Saket Mohan Singh also stated that the injuries could be caused by knife. In his cross-examination, he stated that at the time of examination, the general condition of the injured was low and the pulse was feeble. He also stated that he did not record the dying declaration of the deceased as the deceased was not in a condition to speak. He further stated that the lungs of the injured were punctured and air was passing.

10. Learned AGA appearing for the State has strongly contended that the evidence as brought on record was sufficient to prove the conviction of the accused-appellant. He also contended that there were two eye-witnesses, namely, Kesariya and Bhaiya Lal who have supported the case of the prosecution and as such the appeal is liable to be dismissed outrightly. He has relied heavily upon the FIR which was lodged by deceased Kesariya himself which was being termed as the dying declaration of the deceased Kesariya later on.

11. Learned counsel for the appellant has strongly contended that the said FIR cannot be treated as a dying declaration in view of the opinion of the Doctor himself who has stated that the deceased was not in a condition to make any dying declaration and, thus, it has been contended that the case as set up by the prosecution is totally false and apparently the FIR has been lodged by some other person apart from the deceased. Even the doctor, who had given the first aid to the deceased, has himself stated that general condition low feeble dying declaration Injured puncture

12. Learned counsel for the appellant submits that the prosecution case is totally fabricated, as the deceased was not in a position to have lodged the FIR, which is being treated as dying declaration. He further submitted that on the basis of evidence on record the present case is not a case of preplanned and premeditated murder.

13. It appears that the accused-appellant was annoyed with the deceased for not coming to his house for doing work and accordingly when he was confronted by the appellant and asked to explain as to why the he (deceased) had not come to work, some altercation took place and in the heat of the moment, two injuries were caused to the deceased that too on the back of the deceased by a knife and, thus, it could not be contended that the accused-appellant had any intention to commit the murder of the deceased Kesariya.

The defence has sought to raise a plea that the present case is not a case of culpable homicide amounting to murder but is a case which falls strictly within the parameter of Section 304(1) IPC.

14. The Apex Court in the case of Rampal Singh Vs. State of U.P., , while dealing with the question of applicability of Section 302 IPC viz--viz 304(1) IPC has observed as under:

"16. This Court in the case of Vineet Kumar Chauhan Vs. State of U.P., , noticed that academic distinction between murder and culpable homicide not amounting to murder had vividly been brought out by this Court in State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another, , where it was observed as under:

that the safest way of approach to the interpretation and application of Section 299 and 300 of the Code is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of Section 299 and 300 of the Code and the drawing support from the decisions of the Court in Virsa Singh v. State of Punjab and Raswant Singh v. State of Kerala, speaking for the Court, Justice RS Sarkaria, neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the Court said that wherever the Court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it would be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be that the accused has done an act by doing which he has caused the death of another. Two, if such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, on whether this second or the third clause of Section 299 is applicable.

If this question is found in the positive, but the cases come within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 of the Code. It was, however, clarified that these were only broad guidelines to facilitate the task of the Court and not cast-iron imperatives.

17. Having noticed the distinction between murder and culpable homicide not amounting to murder, now we are required to explain the distinction between the application of Section 302 of the Code on the one hand and Section 304 of the Code on the other.

18. In Ajit Singh Vs. State of Punjab, , the Court held that in order to hold whether an offence would fall under Section 302 or Section 304 Part I of the Code, the Courts have to be extremely cautious La examining whether the same falls under Section 300 of the Code which states whether a culpable homicide is murder, or would it fall under its five exceptions which lay down when culpable homicide is not murder. In other words, Section 300 states both, what is murder and what is not. First finds place in Section 300 in its four stated categories, while the second finds detailed mention in the stated five exceptions to Section 300. The legislature in its wisdom, thus, covered the entire gamut of culpable homicide that amounting to murder as well as that not amounting to murder in a composite manner in Section 300 of the Code. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences.

19. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of this section includes only those cases in which offence is really murder, but mitigated by the presence of circumstances recognized in the exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in the case of Fatta v. Emperor, 1151. C. 476 (Refer : Penal Law of India by Dr. Hari Singh Gour, Volume 3, 2009)

20. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed.

21. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to state any straight-jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused."

15. The Apex Court in the case of Mangesh Vs. State of Maharashtra, , has observed as under:

"14. It is not the case even in any of the dying declarations that the appellant had premeditated or preplanned his actions or was having any information prior to the incident that the deceased would be found with his sister Sandhya at the place of occurrence. Their meeting might have been taken by the appellant as temerity. Therefore, it is a clear cut case of loss of self control and in the heat of passion, the appellant caused injuries to Prashant (deceased). By no means, can it be held to be a case of premeditation."

In the said case, the Apex Court has further held as under:

"the appellant has not taken any undue advantage or acted in a cruel or in an unusual manner. Undoubtedly, injury No. 1 had been caused on the vital part of the body of the deceased but it must also be borne in mind that when a person loses his sense he may act violently and that by itself may not be a ground to be considered against him while determining the nature of the offence."

and accordingly the conviction in the said case was converted from Section 302 IPC to Section 304(1) IPC.

16. The Apex Court in the case of Sridhar Bhuyan Vs. State of Orissa, , has observed as under:

"The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds mens sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offenders 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, IPC is not defined in the IPC. 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.

Considering the factual scenario, in the background of legal principles set out above, the inevitable conclusion is that the case is not covered under Section 302 IPC. The ingredients necessary to bring in application of Exception 4 to Section 300 IPC are present. The conviction is altered to Section 304 Part I IPC. Custodial sentence of 10 years would meet the ends of justice."

The evidence of the present case examined in its entirety shows that without any premeditation the appellant had committed the offence in a heat of the moment, as a duel took place between the accused-appellant and deceased. The accused-appellant on the ground that the deceased had not come to work at his house had inflicted injuries upon the deceased by a knife that too on the back of the deceased. This clearly establishes that the appellant did not have any, intention to kill the deceased and all has happened in a spur of moment and by the heat exchange of words between the parties. It also does not seem to be a predetermined or premeditated case and, thus, we are of the opinion that as there was no intention on the part of the accused-appellant to cause the very injuries which ultimately lead to the death of the deceased, the case would then lead the conviction under Section 304(1) IPC and not under Section 302 IPC.

Accordingly, the present appeal is partly allowed. The conviction and sentence as awarded by the Court below under Section 302 IPC is reduced to Section 304(1) IPC. The accused-appellant to undergo rigorous imprisonment for seven years under Section 304(1) IPC. Consequences to follow.

The copy of the order be communicated to the CJM concerned for onward compliance.