The main legal point established in the judgment is the application of Exception 4 to Section 300 IPC, which requires a sudden fight, absence of pre-meditation, the accused being overcome with the heat of passion, and not acting in a cruel or unusual manner.

G.S. SISTANI, J.

1. This is an appeal under Section 374 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”) assailing the judgment dated 28.02.2013 passed by the Trial Court in Sessions Case 88/2011 arising out of FIR 222/2011 PS Sarai Rohilla, by which the appellant has been convicted for the offence under Section 302 of the Indian Penal Code, 1860 (“IPC”). Challenge is also laid on the order on sentence dated 28.02.2013 by which the appellant has been sentenced to undergo imprisonment for life and fine of Rs.1,000/-; in default of payment of fine, to undergo simple imprisonment for a period of one month.

2. The case of the prosecution, as noticed by the learned Trial Court, is as under:-

“1. On 26.06.2011, on receipt of DD No.35-A, ASI Bachhu Singh along with Ct. Vijay reached at the spot and after inspecting the spot, informed the senior officials about the incident upon which Inspector M.P. Singh along with SI Sunil Kumar also reached at the spot where they were informed that the injured had already been taken to hospital by PCR van and the accused was produced by TSR driver namely Sharwan Kumar. Thereafter ASI Bachhu Singh reached at BJRM hospital and obtained the MLC of deceased Pawan Kumar as per which he was declared dead. Statement of TSR driver was recorded wherein he stated about the stab injuries caused to the deceased with broken bottle of liquor in the hands of accused. Accordingly, case u/s 302 IPC was registered against the accused and during the investigation of the case, IO prepared site plan, got the scene of crime inspected through crime team, recorded statements of witnesses, got the post-mortem examination of dead body conducted through mortuary, sent the exhibits to FSL for expert opinion and after completion of investigation, filed the charge sheet u/s 302 IPC in the court.”

3. Charge was framed against the appellant/accused under Section 302 IPC, to which the appellant pleaded not guilty and claimed trial. In support of its case, the prosecution has examined 17 witnesses. Statement of the appellant was recorded under Section 313 Cr.P.C. wherein he claimed to be innocent and also claimed that he was falsely implicated in the matter. No evidence was led by the defence.

4. Upon appreciation of evidence, the Trial Court found the chain of events to be complete and the prosecution was able to prove the factum of the deceased and the accused being together at the time of the incident followed by their quarrel over the issue of money and the accused causing injuries upon the person of the deceased by broken liquor bottle which led to his death and convicted the accused/appellant under Section 302 IPC and sentenced the appellant as noticed in paragraph 1 afore going.

5. At the outset, learned counsel for the appellant submits that he has instructions to state that he does not contest the judgment as far as the conviction is concerned, but wishes to lay challenge that no case under Section 302 IPC is made out. Learned counsel submits that the case of the prosecution is based on the testimony of an eye-witness who was the TSR driver, i.e. Sharwan Kumar (PW-1). Mr.Tikania contends that a careful reading of the testimony of this witness would show that the deceased and the appellant were friends and were travelling in the same TSR. It is also pointed out that upon reaching the destination, a sum of Rs.50/- was handed over by the appellant to the TSR driver, out of which Rs.30/- was returned to the appellant and thereafter, an altercation broke out between the deceased and the appellant with regard to the balance amount which was handed over by PW-1 to the appellant.

6. Learned counsel further contends that it was primarily a money dispute which occurred on the spur of the moment and which led to the unfortunate incident. It is contended that there was no pre-meditation; there was no weapon of offence and the appellant did not act in an unusual or cruel manner. The appellant used a bottle of alcohol, which both