Culpable homicide not amounting to murder under Section 304 Part II of the Indian Penal Code is applicable when a killing occurs in a sudden fight, without premeditation, and without the offender having taken undue advantage or acted in a cruel or unusual manner.

( 1 ) THIS appeal is directed against the judgment and order passed by the learned Sessions Judge, Andaman and Nicobar Islands, Port Blair on 31st March, 1998 in Sessions Case No. 8 of 1994 giving conviction under Section 302 of the Indian Penal Code, sentencing the accused to life imprisonment. The appeal is preferred by the accused making various grounds including that the order of conviction and sentence to undergo rigorous imprisonment for life in the abovesaid Sessions case passed by the learned Sessions Judge is bad in law and inoperative.

( 2 ) ALTHOUGH the defence case was otherwise, but Mr. S. K. Mondal the learned Counsel appearing for the accused submitted that they are only relying upon the prosecution's case that the offender is punishable under Section 302 of the Indian Penal Code and the judgment of trial Court to that extent is, according to him erroneous.

( 3 ) IN support of his contentions Mr. Mondal has drawn our attention to the observation of the concluding portion of the judgment being paragraph 56 therein which speaks "in view of the discussions in the foregoing paragraphs it is established beyond all reasonable doubt that on 13th October, 1992 at about 7 p. m. the accused Ramesh Narayan alias Andi, the victim Satti Narain alias Satti and others were gambling at the Bimblitan Chowk; that in course of that gambling there was hot altercation between the accused and the deceased Sathyanarayan and in course of that altercation, the accused assaulted Sathyanarayan alias Satti with a heavy straight DAH on the right shoulder causing incised injury over shoulder joint extending from medial side of right clavicle up to shoulder joint extending up to right nipple measuring about 8" incised, the depth was up to the pleura of the lung with sharp cut fracture of right clavicle bone, first and second ribs and causing the cut of right pleura, all underlying vessels and the death of Sathyanarayan was caused due to haemorrhagic shock following deep incised injury and that the injury was homicidal and ante-mortem in nature. Immediately thereafter the accused was found to surrender himself with the DAH having blood-stains and having blood-stains on the weaving towel.

( 4 ) BY referring the above part of the judgment he contended that there is a gulf of difference between the culpable homicide and murder. His case is squarely falling under the Exception 4 of Section 300 of the Indian Penal Code which says that culpable homicide is not murder, if it is committed without pre-meditation in a sudden fight in the heat of passion upon sudden quarrel and without the offender, having taken undue advantage or acted in a cruel or in an unusual manner.

( 5 ) IN support of his contentions he has relied upon for reported judgments being : (1) 1984 Cri LJ 478 : (AIR 1984 SC 759) (Tholan v. State of Tamil Nadu); (2) 1992 Cri LJ 2334 : (AIR 1992 SC 1150) (Patel Rasiklal Behar Bhai v. State of Gujarat); (3) 1986 Cri LJ 413 (Raj) (Nathu v. State of Rajasthan); and (4) 1985 Cri LJ 1118 (Orissa) (Bishnu Charan Das v. State ).

( 6 ) RATIO of the judgments are similar on the line.

( 7 ) SO far as the first decision is concerned the ratio of the Supreme Court judgment is that the incident occurring on spur of moment is to be considered as guilty of committing offence under Section 304, Part-II of the Indian Penal Code and conviction can be altered from Section 302 of the Indian Penal Code to Section 304, Part-II of the Indian Penal Code in such circumstances.

( 8 ) IN the second Supreme Court judgment we find that sudden quarrel with the deceased rebuking the accused and that the accused given single blow of agricultural implement which he was carrying and such blow falling on neck of the deceased and proving to be fatal, it could not be said that the accused intended to cause neck injury, not liable to be convicted under Section 300 and the conviction should be altered to Section 304, Part-II.

( 9 ) SIMILARLY in the thi