IMPORTANT POINT
Ingredients and requirements to attract Exception 4 to section 300 IPC stated.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Challenge in this appeal is to the judgment of Rajasthan High Court, Jodhpur Bench upholding the conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’). The accused alongwith four others faced trial. While the accused faced trial for alleged commission of offences punishable under Sections 302 and 341 IPC, others faced trial for offence punishable under Sections 323 and 341 IPC.

2. The learned Special Judge SC/ST Act Cases, Jodhpur, held the appellant guilty of offence punishable under Sections 302 and 341 IPC. We are not concerned with the conviction and sentence in respect of other accused persons.

3. Prosecution version in a nutshell is as follows:

At 8.00 p.m. on 5.12.1996 in the city of Jodhpur P. Mukesh (PW-6) with his uncle Chetan Prakash (PW-7) as also his father Kaluram (since deceased) went to Railway Stadium on bicycles to bring waste meals discarded by the marriage party for their pigs. At about 10.15 p.m. they were coming back from the Railway Stadium in two bicycles collecting the waste meals near S.P.S. School. By the side of the road, five persons were standing with a scooter and a Hero Puch. They stopped the deceased and others and asked wherefrom they were coming and called them thieves and wanted to take their personal search. When Kaluram as also Chetan Prakash refused to give their personal search, Vishal Singh accused appellant herein, took out a knife from his pocket and inflicted the fatal blow on the chest of Kaluram. Co-accused Manoj Kumar inflicted a stone blow on the head of Kaluram. The remaining three persons started beating by fists. When PW-6 Mukesh and PW-7 Chetan Prakash intervened, all the assailants made good their escape.

After walking few steps Kaluram became unconscious and fell down. Thereafter, injured Kaluram was taken to Railway Hospital in a taxi from where he was referred to Mahatma Gandhi Hospital for treatment where Kaluram passed away at 1.30 A.M. At the hospital itself Mukesh (PW-6) at 2.15 P.M. gave a parcha bayan Ex.P.7 to Girija Shankar, S.I. (PW-3) who sent the same to Police Station Sardarpura where FIR Ex.P/24 was recorded at 2.30 A.M. Immediately thereafter all the five accused persons were put under arrest. Knife (Article 1) was recovered on the voluntary disclosure statement given by appellant which was seized, sealed and sent to the FSL where it was found stained with human blood.

After investigation charge sheet was filed. Since the accused persons pleaded innocence trial was held. One Manoj Kumar who had faced trial alongwith the appellant was acquitted of all charges. The other co-accused persons were convicted under Sections 323 and 341 and were released on probation.

Before the trial Court the primary stand was of false implication and alternatively it was pleaded that there was single injury and that too in a sudden quarrel and sudden fight without pre-meditation and, therefore Section 302 has no application. The trial Court did not accept the plea and as noted above recorded conviction and imposed life imprisonment.

4. In appeal, the stand taken before the trial Court was re-iterated. Learned counsel for the State on the other hand submitted that there was no quarrel as claimed by the accused. Therefore, Exception 4 to Section 300 has no application to the facts of the case. The High Court did not accept the plea of the accused appellant and dismissed the appeal.

5. Stand taken before the High Court was re-iterated. It is to be noted that occurrence took place at about 10.15 p.m. on 5.12.1996 and the FIR was promptly lodged.

6. For bringing in operation of Exception 4 to Section 300 IPC it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

7. The Fourth Exception of Section 300,