The central legal point established in the judgment is the application of Exception 4 of Section 300 of the Indian Penal Code to determine the nature of the offence and the appropriate sentence to be imposed.

ORDER

1. Heard learned counsel for the parties.

2. This appeal takes exception to the judgment and order dated 8th October, 2015 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal (for Enhancement) No.1438 of 2014.

3. The accused-appellant was convicted by the Trial Court for the offence punishable under Section 302 of the Indian Penal Code but the sentence imposed was only for seven years, which was assailed by the State before the High Court in the aforementioned appeal.

4. The High Court was pleased to set aside the sentence awarded by the Trial Court and instead ordered the accused-appellant to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code.

5. This Court, on 09.05.2016, while issuing notice, had observed thus :-

"......Learned counsel for the petitioner submits that the High Court would have been well advised to convict the petitioner under Section 304 Part II of the Indian Penal Code instead of Section 302 of the Indian Penal Code."

6. The only question canvassed before us, therefore, is the nature of offence and the sentence to be imposed therefor.

7. It is noticed from the record that the prosecution case itself was that the fight between the accused-appellant and the deceased occurred on the spur of the moment and was not a premeditated assault by the accused-appellant. Indeed, the evidence accepted by the Trial Court does go to show that the accused-appellant was responsible for causing fatal injuries to the deceased to which he eventually succumbed. Nevertheless, the question is whether the case falls in the excepted category?

8. According to the accused-appellant, Exception 4 of Section 300 of the Indian Penal Code must come to the aid of the accused-appellant to hold that it was a case of culpable homicide not amounting to murder. That view could be taken on the basis of the finding recorded by the Trial Court and which finding has not been disturbed by the High Court. To wit, that the accused-appellant and the deceased came separately at the place where the offence occurred, for having drinks without any prior preparation and they sat together. During that time, some altercation took place resulting in the attack by the accused- appellant with a knife, causing around eight injuries to the deceased. Section 300 and Exception 4 to Section 300 of the Indian Penal Code read thus :

300. Murder.- 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 -

Secondly- 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 -

Thirdly- 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 -

Fourthly- 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.

Exception 1.- xxx xxx xxx

Exception 2.- xxx xxx xxx

Exception 3.- xxx xxx xxx

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.

xxx xxx xxx

9. In the facts of the present case, after perusing the evidence on record including the findings recorded by the Trial Court, we have no hesitation in accepting the argument of the appellant-accused that this case would be covered by Exception (4) to Section 300 of the Indian Penal Code, as the offence was not premeditated and h