Exception 4 to Section 300 of the Indian Penal Code provides that 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.

AJIT SINGH, J.

1. The sole appellant Puna Boruah has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5000/- with default stipulation.

2. The victim of incident was Pabitra Bora, aged about 34 years.

3. According to the prosecution case, Sarulara Barua along with his wife Kalimai Barua (PW-3) lived at village Pahukata falling within the jurisdiction of Police Station Nagaon. With them, their son appellant and daughter Hemkanti Boruah (PW-1) also lived. Their another daughter Kunja Bora (PW-2) was married to Pabitra Bora. On 26.1.2000, Kunja had also visited Sarulara and Kalimai to spend few days with them. And with her, Pabitra Bora too stayed in the same house. Around 7.30 p.m., the appellant returned home from outside and started quarreling with Hemkanti and Kunja. Kunja, therefore, went to Pabitra and narrated about the behaviour of appellant. Pabitra bonafidely came to the appellant and asked him not to misbehave. But the appellant suddenly dealt a blow on the head of Pabitra with a “Hatuwahi” (small axe) from its blunt side and ran away. Pabitra was carried to hospital for treatment, but he died on the next day. Hemkanti made ejahar exhibit 1 at Police Station Nagaon against the appellant.

4. Dr. Pratap Chandra Sarma (PW-10), who conducted the post mortem examination, in his report exhibit 5 opined that Pabitra died due to head injury and fracture of right temporal and parietal bones. The police, after investigation, filed a charge sheet against the appellant for committing the murder of Pabitra.

5. As mentioned above, Hemkanti and Kunja are sisters of the appellant, whereas Kalimai is his mother. They are also eye witnesses to the incident. During trial, they have deposed in one voice that appellant alone had caused the fatal injury on the head of Pabitra with a Hatuwahi (small axe). Nothing was brought out in their cross examination by the appellant to discredit them. Also they had no reason to falsely implicate the appellant. The trial court, therefore, relying upon the evidence of Hemkanti, Kunja and Kalimai convicted and sentenced the appellant, as aforesaid.

6. Having regard to the evidence available on record, the learned counsel for appellant has not assailed the prosecution story which is well founded and fully proved. We accordingly confirm the finding of the trial court that appellant was the perpetrator of the crime.

7. The learned counsel for appellant has, however, argued that even accepting the prosecution version in totality, it cannot be said that appellant had the intention to murder Pabitra.

8. The Supreme Court in the case of Muthu vs. State, AIR 2008 SC 1 has held that when in the heat of the moment or in a fit of anger a person does an act without premeditation that person must also be punished but his punishment should be lesser than that of premeditated offences. The Supreme Court has observed that it is for this reason that Exceptions 1 and 4 have been inserted in Section 300 of the Indian Penal Code. Exception 4 to Section 300 of the Indian Penal Code clearly provides that 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.

9. In the case at hand, the appellant on a quarrel without premeditation suddenly in the heat of passion dealt one axe blow from its blunt side on the head of Pabitra which resulted into his death. Pabitra was brother-in-law of the appellant. Had the appellant any intention to commit his murder, he would have caused the injury from the sharp side instead of blunt side of the small axe. Therefore, having regard to the act of appellant, we are unable to agree that he had any intention to cause the death of Pabitra. It can, however, be safely held that he had the knowledge that by causing the injury with the blunt side of axe on Pabi