Culpable Homicide--For the application of Exception 4 to Section 304, it is not sufficient to show that there was a sudden quarrel and there was no premeditation--It must be shown that offender has not taken undue advantage or acted in cruel or unusual manner.

       Murder--Eyewitness--Reliance on--In order to ascertain reliability and trustworthiness of eye witnesses, Court is to adhere two principles--Whether in circumstances of a case: (i) It was possible for the eye witnesses to be present on the scene. (ii) Whether there was any thing improbable or unreliable in his testimony.

       Murder--Ingredients--If act of a person, by which death is caused, is done with intention that giving of bodily injury as offender knows that it is likely to cause death, or bodily injury intended to be inflicted is sufficient to cause death in ordinary course of nature, said person is guilty of offence of committing murder.

       (A) Indian Penal Code, 1860, S.302 r/w S.34--Murder--On small issue of tethering buffalo in street death of young woman aged about 27 years was caused by her neighbour--As per medical evidence there was only one incised would injury on head of deceased due to which she has died--Only accused ‘J ‘ caused one injury with his Dang to deceased which proved to be fatal and due to which she had died--Other two accused did not caused any injury--Only lalkara has been attributed to accused ‘B’--Accused ‘P’ alleged to have stopped deceased when she was going back to he home on seeing angry mood of accused ‘J’--No injury caused either to complainant or to eyewitness--Prior to alleged occurrence there was no altercation or dispute between accused and complainant party--Conviction ‘J’ upheld--Accused ‘P’ and ‘B’ acquitted. (Para 9)

       (B) Indian Penal Code, 1860, S.302 r/w S.34--Murder--Eyewitness--Reliance on--In order to ascertain reliability and trustworthiness of eye witnesses, Court is to adhere two principles--Whether in circumstances of a case:

       (i) It was possible for the eye witnesses to be present on the scene.

       (ii) Whether there was any thing improbable or unreliable in his testimony. (Para 20)

       (C) Indian Penal Code, 1860, S.302 r/w S.34--Murder--Eyewitness--Reliability of--Acquittal--Presence of accused at spot and role attributed to him--As per version given by eyewitness accused ‘P’ came on scene at later stage on hearing lalkara of accused ‘J’--Held that, it is highly improbable that a person, who is residing at a distance in a separate house, will be attracted at the spot on hearing lalkara--It is admitted case of prosecution that accused ‘P’ did not cause any injury either to deceased or to complainant or to witnesses--He also did not raise any lalkara--In view of these facts, presence and role attributed to him is doubtful and possibility of his false implication being a close relative of accused ‘J’ cannot be ruled out, therefore, he cannot be convicted with the aid of Section 34 IPC--Accused ‘P’ acquitted. (Para 20)

       (D) Indian Penal Code, 1860, S.302 r/w S.34--Murder--Common Intention--Acquittal--Accused ‘B’ did not cause any injury to deceased nor he had attempted to cause any injury/hurt to deceased even though he was having cricket bat in his hand--Story given by two eye witnesses with regard to manner, in which the said accused had participated, seems to be improbable and unreliable--Even otherwise, prosecution has failed to prove that said accused was having common intention with accused ‘J’ to kill deceased--In facts and circumstances of the case, and in view of evidence led by prosecution accused ‘B’ cannot be convicted for offence of murder with aid of Section 34 IPC--Accused ‘B’ acquitted. (Para 21)

       (E) Indian Penal Code, 1860, S.34--Common Intention--Principles of Joint liability--Section 34 IPC has been enacted on principle of joint liability in commission of a criminal act--Section 34 is only a rule of evidence and does not create a substantive offence--Distinctive feature is element of participation in action. (Para 21)

       (F) Indian Penal Code, 1860, S.34--Common Intention--Requirements of--In order to fulfill requirement of Section 34--Firstly, person must be present on scene of occurrence and secondly, it has to be established that there was prior consent or pre-arranged plan for committing the alleged offence--Unless these two conditions are fulfilled, a person cannot be held guilty of an offence by operation of Section 34 IPC. (P.21)

       (G) Indian Penal Code, 1860, S.34--Common Intention--Prosecution has to establish by evidence whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence, for which they are charged with the aid of Section 34 IPC--Said planning or meeting of mind may be pre-arranged or on the spur of moment--But it must necessarily be before the commission of crime. (Para 21)

       (H) Indian Penal Code, 1860, S.302 r/w S.34--Murder--Common Intention--Prosecution failed to establish essential ingredients of meeting of mind of both accused prior to committing alleged offence--Existence of common intention among these two participants to kill deceased has not been established—One accused convicted others accused acquitted--Prior to occurrence, which had taken place in early morning at 7.30 AM, there was no dispute between complainant party and accused party with regard to street or tethering of cattle in street--For first time, dispute arose on day of occurrence, when on seeing a buffalo being tied in the street, accused ‘J’ started abusing to deceased and untied buffalo from its peg and when deceased objected to it, accused ‘J’ gave slap to her and thereafter, he went back to his house by saying that he will finish matter for all times to come--Immediately thereafter, he came with a Dang in his hand and his brother accused ‘B’, having a cricket bat in his hand--Thereafter, it was alleged that accused ‘B’ exhorted accused ‘J’ to finish job, upon which accused ‘J’ gave single Dang blow to deceased--Accused ‘B’ did not make any attempt to cause any injury to the deceased--Both eye witnesses stated that whole occurrence was over within 3-4 minutes--In these facts and circumstances, it cannot be said that accused ‘B’ and accused ‘J’ have pre-arranged a plan to kill deceased--It also cannot be said that on the spur of moment, a meeting of their mind had developed with a common intention to cause the death of deceased--In order to attract Section 34 IPC, it is essential that there exists a common intention animating accused leading to the commission of a criminal act in furtherance of such intention--Therefore, accused ‘B’ cannot be convicted with the aid of Section 34 IPC--Since he did not cause any injury to any one, therefore, he is not liable for any offence--Conviction accused ‘J’upheld and conviction of accused ‘B’ set aside. (Para 2)

       (I) Indian Penal Code, 1860, S.302--Murder--Ingredients--If the act of a person, by which death is caused, is done with intention that giving of bodily injury as offender knows that it is likely to cause death, or bodily injury intended to be inflicted is sufficient to cause death in ordinary course of nature, said person is guilty of offence of committing murder. (Para 24)

       (J) Indian Penal Code, 1860, S.302 and 304--Murder--Conviction--Accused ‘J’ while holding Dang with his both hands gave blow on head of deceased, which is a vital part of body, with full force, having intention and knowledge that such bodily injury may cause her death, particularly when she was unarmed and was going back to her house on seeing him angry mood --Accused ‘J’ was not only having intention to cause bodily injury to deceased, which was sufficient to cause her death in ordinary course of nature, but he was having full knowledge that if he gives Dang blow with full force on head of a woman, in all probabilities, said injury will be likely to cause death in ordinary course of nature--Therefore, instant case squarely falls in clause thirdly or fourthly of Section 300 IPC--Conviction upheld. (Para 24)

       (K) Indian Penal Code, 1860, S.300, Exception 4--Ingredients--Culpable Homicide not amount to murder--To attract exception 4 of Section 300 following four ingredients must be satisfied :

       (i) it was a sudden fight;

       (ii) there was no premeditation;

       (iii) the act was done in a heat of passion; and

       (iv) the assailant had not taken any undue advantage or acted in a cruel manner. (P.25)

       (L) Indian Penal Code, 1860, S.302 and 300, Exception-4--Murder--Conviction--Accused ‘J’ on coming in front of house of complainant started abusing on seeing buffalo of complainant party being tied in street--When he untied buffalo and deceased objected to it, he gave slap to her--Thereafter, he went to his house and came back with a Dang and gave fatal blow to deceased--At that time, deceased was not fighting with him--She was simply standing and was trying to run back towards her house--Therefore, it cannot be said that accused ‘J’ gave fatal Dang blow to deceased in a sudden fight in a heat of passion--Even though there was no premeditation, but first and third ingredients of Exception 4 have not been fulfilled--It has been proved that when accused ‘J’ gave Dang blow with his both hands with full force on her head, at that time, she was unarmed--She did not attempt to cause any injury to accused ‘J’-- In these circumstances, accused ‘J’ had certainly taken undue advantage of the situation and caused a fatal blow on head of deceased by Dang with full force, which had resulted into fracture of her frontal and parietal bone and haemotoma, extra dural and intra dural, and her immediate death--There was no grave provocation which instigated accused ‘J’ accused to give fatal blow--Therefore case of accused ‘J’ does not fall within Exception 4 of Section 300 IPC–He has been rightly convicted and punished under Section 302 IPC. (Para 26)

       (M) Indian Penal Code, 1860, S.304, Exception-4--Applicability--For the application of Exception 4 to Section 304, it is not sufficient to show that there was a sudden quarrel and there was no premeditation--It must be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. (Para 26)