Judgment

ALAGIRISWAMI, J. :- This is an appeal against the judgment of the High Court of Allahabad altering the sentence of life imprisonment inflicted on the appellant by the Sessions Judge, Hamirpur, to one of death under Section 303 I.P.C. The main argument in this case has been about the legality of the conviction of the appellant under Section 303 I.P.C. though an attempt was also made to canvass the correctness of the judgment of the Sessions Judge awarding the sentence of life imprisonment.

2. On 14-10-1964 the deceased Rati Ram and his brother Pooran, P.W. 1, had gone to their fields and Pooran and his servant Ganga, P.W. 4, were ploughing their fields. In another field belonging to Pooran the appellant was grazing his cattle. Rati Ram asked the appellant to take away the cattle from his field as it was not yet dry and grazing of the cattle would damage the field. The appellant refused to remove his cattle from the field and upon this there was an exchange of abuses between the two. When the deceased was driving away the cattle from the field, the appellant gave a blow on the left side of the neck of the deceased with a Pharsa, which he had in his hand, and the deceased fell down and died. Sunder Lal, P.W. 2, who was ploughing his field nearby as well as Laxmi Prasad, P.W. 3, who happened to be on the spot, also saw this occurrence in addition to P. W. 1 and P.W. 4. P.W. 1 reported the occurrence at the police station and the Station Officer, P.W. 5, reached the village the same day, held an inquest removed the blood stained clothes from the dead body, prepared a site plan and sent the body for post-mortem examination. He also took the blood stained earth. After recording the statements of PWs. 1 to 4 and recording the statement of the accused on 25-10-64 he submitted the charge sheet. The accused was committed to the Court of Session in due course to stand his trial under Section 302 I.P.C. The defence of the appellant was complete denial of the quarrel at the scene of occurrence as spoken to by the prosecution witnesses.

3. The medical evidence established that the deceased died of a blow given on his neck with a Pharsa. The occurrence happened during day time and in the report to the police the whole story, as spoken to by the prosecution witnesses, was mentioned. There was no suggestion to PWs. 1, 2 and 4 of any enmity with the accused. A suggestion was made to P.W. 3 that the appellant s father had appeared as a witness in a dacoity case against PW 3 s grand father, in which he was convicted. P.W. 3 stated that he did not know whether this was true, and except this suggestion there was no other evidence to establish the enmity. This suggestion, however, looks far-fetched. We have carefully gone through the evidence in this case as also the Judgment of the Sessions Judge and the High Court and find no reason to differ from them in their conclusion that the appellant is guilty of the murder of Rati Ram.

4. It was argued before the Sessions Judge that in any case, no offence under Section 302 I.P.C. had been made out and that there was only an offence under Section 304, even if the prosecution story could be held to have been proved. The learned Sessions Judge took the view that though the occurrence took place without premeditation and in a sudden fight, and there was exchange of abuses on both sides, it could be presumed that it took place in the heat of passion upon a sudden quarrel, but that it could not be said that the offender had acted without having taken any undue advantage, and on the ground that the accused had acted in a cruel and unusual manner, he held that the offence did not fall under Exception 4 of Section 300 of the Indian Penal Code and found him guilty under Section 302 I.P.C. On the ground, however, that there was no premeditation and it was a sudden fight and the murder was committed in the heat of passion upon a sudden quarrel, and that the accused had given only a single blow of the Pharsa, he a