Point of Law: Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) fight must have been with person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that “fight” occurring in Exception 4 to Section 300 IPC is not defined in IPC

JUDGMENT :

A.J. Desai, J.

1. By way of the present appeal under section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for short), the appellant–original accused has challenged the judgement and order dated 05.03.2013 passed by learned 4th Additional Sessions Judge, Surat in Sessions Case No.154 of 2011, by which, the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo life imprisonment.

2. The appeal came to be admitted on 08.10.2013. Record and proceedings have been tagged along with paper book and placed before us.

3. Short facts emerge from the record of the appeal are as under:

3.1 One Karamsinh Muljibhai Vasava, resident of village Makh Shera Faliya, Taluka Dediyapada, District Narmada lodged an FIR bearing C.R.No.I-59 of 2011 with Mandvi Police Station, District Narmada against present appellant for the offence punishable under Section 302 of the Indian Penal Code on 27.05.2011 at around 4.00 hrs. alleging that on the same day i.e. on 27.05.2011 at around 00.30 hrs, he alongwith his brother Mukeshbhai and other family members had joined the marriage ceremony of his relative at village Jamkui. The procession of marriage party was going on and pursuant to the rhythmic sound of music band all the persons who had joined the marriage procession had started dancing. He alongwith his brother also joined the marriage procession and started dancing. When they were dancing alongwith other persons, at that time, leg of Mukeshbhai touched the present appellant-Arvindbhai and some altercation took place and thereafter scuffle took place, wherein the present appellant took out knife and gave blow on the left side of abdomen of Mukeshbhai. Pursuant to which, he fell down on the ground. Thereafter, immediately 108 Ambulance was called and he was immediately transferred to Mandvi Government Hospital, where he was declared dead. The appellant came to be arrested by the Investigating Officer and on completion of investigation, charge sheet was filed before learned Magisterial Court. Since the offences are triable by learned Sessions Judge, learned Magistrate committed the case to learned Sessions Judge.

3.2 By an order dated 06.04.2012, charge came to be framed by 5th (Ad- Hoc) Additional Sessions Judge, Surat vide Exh.4. Charges levelled against the accused are denied by the accused and therefore, the Public Prosecutor proceeded with the trial. In all, 20 witnesses were examined by the prosecution to prove the case whereas the defence has not examined any witness. Further statement of the appellant under Section 313 of the Code was recorded. The appellant denied the case put forward by the prosecution.

3.3 Learned Sessions Judge, after considering the oral as well as documentary evidence like panchnama, map, post-mortem note etc., by the impugned judgment dated 05.03.2013 convicted the present appellant – original accused as stated herein above.

3.4 Hence, this appeal.

4. Mr. B. C. Dave, learned advocate for the appellant, at the outset, would submit that the appellant accused does not want to challenge his involvement in the crime but would submit that it is not a case of murder as defined under Sections 299 and 300 of the IPC but the case would fall under exception 4 of Section 300 of the IPC which is treated as culpable homicide not murder and therefore, his case may be converted under Section 304 of the IPC.

5. By taking us through the deposition of the complainant, namely, Karansinh Mulji Vasava, P.W.-5 at Exh. 18, who lodged the FIR, as well as the contents of the FIR, Mr. Dave, learned advocate for the appellant would submit that the appellant and complainant belong to Adivasi community and some of the persons who had joined the marriage procession were under the influence of alcohol. When several persons were dancing at the tune of music band, the leg of deceased Mukeshbhai touched to the appellant. Pursuant to which, th