Mukhtar Ahmad ORDER
1. Heard Sri Apul Misra, for the appellant and Sri Rajeev Kumar Mishra, A.G.A., for State of U.P.
2. Ajai Kumar Chauhan (the appellant) has filed the present appeal against his conviction and sentence passed by VIth Additional Sessions Judge, Mainpuri, dated 30.06.1986, in S.T. No. 390 of 1985, State v. Ajai Kumar Chauhan, (arising out of Case Crime No. 73 of 1985, u/s. 302 IPC, P.S. Sirsaganj, district Mainpuri), convicting him under Section 302 IPC and awarding sentence of imprisonment for life, along with fine of Rs. 5,000/-.
3. On the basis of written complaint (Ex-Ka-2), of Pradeep Kumar (PW-2), FIR (Ex-Ka-16) of Case Crime No. 73 of 1985 was registered by Head Moharir Abhilakh Singh (PW-9) on 19.03.1985 at 9:30 PM at PS Sirsaganj, against Ajai Kumar Chauhan. It has been stated in the complaint that the complainant Pradeep Kumar and his younger brother Rajeev Kumar were studying, while sitting on the roof of the building in front of water tank at about 8:30 PM on 19.03.1985. At that time, Ajai Kumar son of Raghuveer Singh, resident of Gandhi Ashram, Sirsaganj, came to his door and called Rajeev to come below. His brother then went below alone. After sometime, he cried that "Dada ana, mujhe mar dala". Listening the cries, the first informant, Desh Raj Singh Master son of Sri Shri Ram and Amod Kumar son of Desh Raj Singh, came running on the door and saw that Ajai Kumar son of Raghuveer Singh was causing knife injury to his brother. All of them, saved Rajeev Kumar and apprehended Ajai Kumar and handed over to the police. In the meantime, Ajai Kumar threw the knife in the water tank situated in the premises of Cold Storage.
4. The injured was initially taken to Dr. Kunwar Pal Singh (PW-7) at his clinic at Sirsaganj, who had done bandage on the injuries and provided first aid. Thereafter, the injured was taken to police station Sirsaganj for lodging FIR. After lodging FIR, he was sent to Government Hospital, Sirsaganj, where he was examined by Dr. A.K. Garg (PW-1) on 19.03.1985 at 9:45 PM, who prepared Injury Report (Ex-Ka-1). The condition of the injured was serious, as such, he was referred to higher centre. In the meantime, his father Ramesh Chandra (PW-5) came to hospital and took the injured to Sarojini Naidu Hospital, Agra, in a jeep, where he was admitted. Rajeev Kumar died on 20.03.1985 at 6:30 AM. S.I. Hari Ram Nagar (PW-8) conducted inquest (Ex-Ka-3) of Rajeev Kumar on 20.03.1985 at 11:10 AM at the hospital and send the body for postmortem. Dr. H.B. Singh (PW-11) conducted postmortem of Rajeev Kumar on 20.03.1985 at 3:45 PM and prepared postmortem report (Ex-Ka-13).
5. After registration of FIR, SI Megh Singh (PW 10) started investigation. He came on the spot on 20.03.1985 and on the pointing out of the first informant, he prepared site plan (Ex-Ka-10). Thereafter, he recovered the knife from the tank of Cold Storage premises and prepared its recovery memo (Ex-Ka-11). Thereafter, investigation was taken by SHO S.P.S. Tomar (PW-12). On 22.03.1985, he recorded the statement of Desh Raj Singh, Amod Kumar, Amar Singh, Smt. Kamlesh Kumari. On 03.04.1985, he recorded the statement of Om Prakash Jadaun, scribe of the complaint (Ex-Ka-2). On 14.04.1985, he collected inquest and recorded statement of Ramesh Chandra, father of the deceased. On 11.04.1985, he wrote a letter (Ex-Ka-14) to Superintendent of Sarojini Naidu Hospital, Agra for recovery of blood stained clothes of Rajeev Kumar, but the clothes could not be recovered. He completed the investigation and submitted charge sheet (Ex-Ka-15) on 27.04.1985, on which, cognizance was taken.
6. On committal, the case was registered as S.T. No. 390 of 1985 and was tried by VIth Additional Sessions Judge, Mainpuri, who framed charge against the appellant on 29.10.1985. The appellant denied charge and claimed trial. In order to prove the charge, the prosecution examined Dr. A.K. Garg (PW-1) to prove the injury report (Ex-Ka-1), Pradeep Kumar (PW-2), the first informant and an eye witness, Desh Raj Singh (PW-3), an eye witness, Amar Singh (PW-4), an eye witness, Ramesh Chandra (PW-5), father of the deceased, Constable Jaswant Singh (PW-6) to prove arrest of the appellant from the spot, Dr. Kunwar Pal Singh (PW-7) who had provided first aid to Rajeev Kumar immediately after the incident, S.I. Hari Ram Nagar (PW-8), who conducted the inquest of Rajeev Kumar on 20.03.1985 at 11:11 AM at Sarojini Naidu Hospital, Agra, Head Moharir Abhilakh Singh (PW-9) to prove Entry No. 34, of General Diary of Police Station Madan Mohan Gate, Agra, S.I. Megh Singh (PW-10), the first Investigating Officer, Dr. H.B. Singh (PW-11) to prove the postmortem report (Ex-Ka-13), S.H.O. S.P.S. Tomar (PW-12), second Investigating Officer who completed investigation and submitted charge sheet and Constable Clerk Naresh Chandra to prove the check FIR of Case Crime No. 73 of 1985.
7. After completion of evidence of prosecution, all the incriminatory materials and facts were put to the appellant under Section 313 CrPC. The appellant has denied and has stated that he had an altercation with Amod Kumar, prior to the occurrence. That incident was noticed by his father. From that day, he wanted to demean his reputation. He could not say as to who and where caused the knife injury to Rajeev. In the situation of Rajeev, Amod and Desh Raj Singh called him from his house on some pretext and got him arrested under Section 323 and 324 IPC. Amod and the Constables have arrested him from his house and Amod had called him.
8. After hearing the parties, Additional Sessions Judge by the impugned judgment found that prosecution has perfectly proved the charges against the appellant. The incident is fully corroborated with the medical evidence. The accused is a young man of 21 years and was a student of B.Sc. Rajeev Kumar was also a student, who was brutally stabbed by the accused. Due to the injuries caused by the accused, he died after ten hours of the incident. The site of injury shows that the attack was made with an intention to cause death. The injuries were sufficient to cause death in ordinary course. Thus, the appellant has caused murder of Rajeev Kumar. On this finding, the appellant was convicted under Section 302 IPC and sentenced as mentioned above. Hence, this appeal has been filed.
9. The counsel for the appellant submitted that prosecution version that the appellant was arrested on the spot, is incorrect. This was a night incident and no one had seen the assailant. As some altercation had taken place between the appellant and Amod Kumar son of Desh Raj Singh, therefore, Desh Raj Singh falsely implicated the appellant in this case, calling him from his house. Both the stories that there was some scuffle between the appellant and the deceased at the time of the incident and arrest of the appellant from the spot, are falsified from the fact that no injury was found on the body of the appellant. Had some scuffle taken place between the appellant and the deceased or the appellant was arrested from the spot, then there could be no reason for not causing any injury on the body of the appellant. The place of incident was another place, inasmuch as, initially, in police papers, 'Arov' road was noted, later on, in site plan, the place of incident was shown as 'Pengu' road. Admittedly, the appellant was residing on rent in the house of Vinod Kumar at 'Pengu' road. When Rajeev Kumar was stabbed by an unidentified assailant at a dark place at 'Arov' road, Desh Raj Singh (PW-3) took advantage and called the appellant through his son Amod from his house and falsely implicated in the present case as he had some altercation with Amod a few days prior to the incident. The conduct of the witnesses were not free from doubt, inasmuch as, although Government Hospital situated at 1 1/2 furlong from the place of incident, but the injured was taken to private doctor first. No blood was found/recovered from the spot, although on the body of the deceased, three knife injuries were found. Even blood stained clothes of the deceased were also not recovered. First informant and Desh Raj Singh stated that the deceased along with first informant and Amod were studying at the roof of Desh Raj Singh in the light of a bulb. There was no electricity supply in the house of Desh Raj Singh at the time of incident. In order to justify the plea of bulb light, it has been stated that electricity connection was taken from the generator of doctor Dharmendra connecting loose wire from the generator, from west side of the house of Vinod Kumar, up to the house of Desh Raj Singh. Alleged electric wire, bulb and bamboo on which bulb was hanging were not found or recovered by Investigating Officer. Entire story is false and concocted. In alternative he submitted that there was a sudden quarrel between the parties and at the most, the appellant is liable to be punished under Section 304 IPC.
10. We have considered the arguments of counsel for the parties and examined the record. First of all, we examine as to whether, there was any motive for false implication of the appellant. Pradeep Kumar (PW-2) was an student of Intermediate, Rajeev Kumar was younger to him and was also a student. They were resident of village Kithot, lying at some distance from town Sirsaganj. They used to study at the house of Desh Raj Singh (PW-3) along with his son Amod, who was also a student in Intermediate classes at the time of incident. House of Desh Raj Singh situates on Pengu road after two house of Vinod Kumar. Ajai Kumar Chahaun was a student of B.Sc. Classes and was residing along with his father on rent in the house of Vinod Kumar. 'Arov' road runs in west of the houses of Vinod Kumar and Desh Raj Singh and Pengu road runs in east of it. According to the appellant, some altercation had taken place between the appellant and Amod Kumar son of Desh Raj Singh, prior to this incident therefore, Desh Raj Singh has falsely implicated the appellant in this case, calling him from his house. As the injured and the first informant were studying with him as such they were in influence of Desh Raj Singh. But the appellant has not adduced any evidence to prove that any altercation had taken place between the appellant and Amod Kumar son of Desh Raj Singh, prior to this incident. Thus the motive for false implication as suggested by the appellant is not liable to be accepted.
11. On the other hand, Amar Singh (PW-4), father of the deceased has stated that on information given by Dhurveer Singh on 19.03.1985, he came to Sirsaganj Crossing along with Dhurveer Singh on his motorcycle from where he directly went to the hospital. At the hospital, the people were coming out along with Rajeev Kumar. Thereafter, they put Rajeev Kumar in jeep and took him to Sarojini Naidu Hospital, Agra, where he was admitted to Emergency Department and died on 20.03.1985 at 6:30 AM. He had asked his son Rajeev Kumar about the reason of the incident, then he had informed that in the fare of Teej, he had hooted at Ranjana, daughter of Munna, who had cordial relations with Ajai Kumar, due to which the incident was caused. Similar statements were given by other witnesses to Investigating Officer under Section 161 Cr.P.C. Motive for incident was proved. Pradeep Kumar (PW-2) in paragraph -12 of his statement has specifically stated that when he went to lodge FIR, Amod Kumar, Desh Raj Singh or Ajay had not met him. In paragraph -20 he has stated that he got the complaint scribed, sitting at the shop of Slety Singh. Argument that the appellant was implicated at the stance of Desh Raj Singh is not liable to be accepted. Otherwise also in the case of direct evidence, the motive has no role to play.
12. The prosecution has examined three eye witnesses of the incident, namely, Pradeep Kumar, (PW-2), the First Informant, Desh Raj Singh, (PW-3), the owner of the house in which the First Informant and the deceased were studying at the time of incident and Amar Singh, (PW-4) a tenant of Desh Raj Singh, and an independent eye witness. Pradeep Kumar has stated that on 19.03.1985, at about 8:30 PM, he along with Rajeev Kumar and Amod Kumar were studying in the light of generator, on the roof of Desh Raj Singh Master. Desh Raj Singh Master was resting on a cot there on roof. The generator belonged to Dr. Dharmendra was running, as construction work of building of a Cinema Hall was going on during night also. Ajai Kumar Chauhan called Rajeev Kumar, from the gate on which Rajeev Kumar came below. After 4 - 5 minutes, Rajeev Kumar cried "Dada, mujhe mar dala". Listening to the cries of Rajeev Kumar, he, Amod Kumar and Desh Raj Singh Master came below and saw that Ajay Kumar was causing knife injury to Rajeev Kumar. At that time, both of them were in south of Chabutra, of the house of Desh Raj Singh at a distance of about 5 - 6 paces. Then they together caught Ajai Kumar Chauhan in front of the Cold Storage. When they caught Ajai Kumar, he threw his knife in the tank. On the hue and cry, various persons came there. Amar Singh had also come there behind them. After catching Ajai Kumar, he and Amar Singh went to Rajeev and lifted and took him to Dr. Kunwar Pal. From the Crossing, two constables also came and they arrested Ajai Kumar and took him to the police station. Desh Raj had gone to call the constables. Dr. Kunwar Pal had done bandage of the injuries. Thereafter, they took Rajeev to the police station. In the way, Om Prakash, scribe of the FIR met, from which, he got the complaint scribed, which was handed over to the constable at the police station. From the police station, Rajeev Kumar was sent to Government Hospital, Sirsaganj. He had seen Ajai Kumar causing knife injuries. The witness has also recognized the knife Ex-Ka-11.
In cross examination, the witness has stated that Etawah - Shikohabad road is wide enough and runs through east-west. From its north, Pengu road runs, on which, his house is situated. In the west of Pengu road, another road, Arov road, runs from main Etawah - Shikohabad Road. Kshatri Inter College situate on Arov road, at a distance of about 1 km from the crossing of Etawah road. From Arov road crossing, distance of police station is about 1 furlong. Police Station situates south, while the hospital situates towards west from the crossing. Distance of Clinic of Dr. Kunwar Pal from Pengu road is about 1 1/2 furlong in the east. His house is about 30 yard in length in north-south. House of Raghuveer Singh situate towards south of his house, which is about 20 yards in length. In the same way, house of Sushil Kumar and Vinod Kumar situates in south in 20 - 20 yards. Towards its south, the plot of Dharmendra situates, in which, a Cinema Hall was being constructed. In the south of house of Vinod Kumar, at a distance of 10 - 12 paces, generator was running. They used to take connection from this generator through wire, with the permission of Dr. Dharmendra. The wire was taken through his shop and on the roof, a bulb was hanging, with the help of a stick. There was no switch in the wire. When the generator was running, the bulb was lightening and when the generator was not running, the bulb was not lightening. When the Police Inspector came, he has shown bulb, wire, stick, holder, etc. to him. Ajai Kumar was stronger than Rajeev, but Rajeev was stronger than him. Ajai Kumar was studying in B.Sc. at Shikohabad and his father was in service at Gandhi Ashram, Sirsaganj. All the three of them had come down through stairs from the roof. He had taken Rajeev Kumar to the Clinic of Dr. Kunwar Pal, so that the blood can be stopped. He denied the suggestion that there was profuse bleeding, as such, Rajeev was taken to the Clinic of Dr. Kunwar Pal. He admitted that when his brother realized difficulty in his studies, then he used to go to Ajai Kumar to solve his problems. Ajai Kumar used to reside in the house of Vinod Kumar. In the house of Vinod Kumar, Shiv Pratap Singh, Pradhan of village Madan was also residing, along with his family. His real brother Shiv Mangal Singh was M.L.A. They were prominent persons of Thakur Caste. On the date of incident, Shiv Mangal Singh had vacated the house and had went to his village. When he reached the spot, scuffle was going on in between Rajeev Kumar and Ajai Kumar for about half a minute. During this period, Ajai Kumar caused knife injury to Rajeev Kumar. Ajai Kumar caused knife injury, then they caught him running. He denied the suggestion that the incident occurred at dark place at Arov road, by some unknown miscreants and on the instigation of Desh Raj Singh and others, he has falsely implicated the appellant.
13. Similar statement was given by Desh Raj Singh (PW-3). In the cross examination, he stated that Rajeev was found sitting 10- 15 feet away from his door. He has stated that all of them had caught Ajai Kumar. He caught towards south and Pradeep caught towards west. They caught Ajai Kumar 1 - 2 paces away from his house towards his lane. The house of Ajai Kumar was at a distance of 25 - 30 paces. No one from the house of Ajai Kumar came on the spot. When he went to call the police, then Pradeep and others held Ajai Kumar. When he returned, then Rajeev Kumar was lying there. Thereafter, they took Rajeev to the Clinic of Dr. Kunwar Pal, at a distance of 1 1/2 furlong.
14. Amar Singh (PW-4) is also an eye witness of the incident. He fully supported the prosecution version. In cross examination, he had denied and stated that he did not know Ranjana, daughter of Shiv Pratap Singh was a tenant in the house of Vinod Kumar. He denied that in the fare of Teej or on 19.03.1985, Rajeev misbehaved with Ranjana. He denied that he had given any such statement to the police. He was tenant in the house of Desh Raj Singh. He has stated that when they reached on the spot, scuffle took place for about 3 to 4 seconds and thereafter, the knife injury was caused by the appellant. He has also denied the suggestion that the incident had taken place at Arov road.
15. Ramesh Chandra (PW-5) is the father of deceased Rajeev Kumar. He stated that on 19.03.1985, Dhurveer Singh informed him at his house that the appellant had caused knife injury to his son Rajeev. Thereafter, he came to Sirsaganj Crossing on the motorcycle of Dhurveer Singh, along with him, from where he went to the hospital directly. At the hospital, the other persons were coming out along with Rajeev Kumar as he was referred for higher Centre. Thereafter, they put Rajeev Kumar in jeep and took him to Sarojini Naidu Hospital, Agra, where he was admitted to Emergency Department and died on 20.03.1985 at 6:30 AM. He had asked his son Rajeev Kumar about the reason of the incident, then he had informed that in the fare of Teej, he had hooted to Ranjana, daughter of Munna, who had cordial relation with Ajai Kumar, due to which the incident was caused. In the cross examination, he denied that on the instigation of Desh Raj Singh and others, he had given false statement.
16. From the aforesaid evidence, it is proved that in the presence of Pradeep Kumar and Desh Raj Singh, Ajai Kumar Chauhan (the appellant) called Rajeev Kumar on 19.03.1985 at 8:30 p.m. At that time, Rajeev Kumar along with Pradeep Kumar and Amod Kumar, were studying at the roof of Desh Raj Singh. On the call of Ajai Kumar Chauhan, Rajeev Kumar went down. After 4 - 5 minutes, the witnesses heard the cry of Rajeev Kumar, saying that "Dada, mujhe maar dala". When they came down from the roof, then they found that scuffle between Rajeev Kumar and Ajai Kumar Chauhan was going on towards south of Chabutra of Desh Raj Singh. Ajai Kumar Chauhan caused knife injury to Rajeev Kumar and run away towards his house. There was light of generator on the spot, coming from the roof. The witnesses apprehended Ajai Kumar Chauhan chasing him at a some distance from the place of occurrence. In the meantime, he threw the knife in the tank, situated within the Cold Storage Premises, from where the knife was recovered on 20.03.1985 by S.I. Megh Singh (PW-10), the First Investigating Officer. From the medical report, as well as postmortem report, it is fully proved that three knife injuries were caused on the body of Rajeev Kumar, out of which, the third injury had cut both the lungs and intestines of Rajeev Kumar, due to which, Rajeev Kumar died on 20.03.1985 at 6:30 AM. The appellant could not show any reason for his false implication by Pradeep Kumar, or any reason for Desh Raj Singh and Amar Singh to give false evidence against him. The appellant, the deceased and the witnesses were known to each other and there could be no reason for not recognizing the appellant, even if there was insufficient light at the place of occurrence. If the appellant was called from his house and falsely implicated, some member of his house or any other tenant of his house would have supported the case of the appellant. The judgment of Additional Sessions Judge, holding the appellant as guilty for the charge of committing murder of Rajeev Kumar, does not suffer from any illegality and no interference is required by this Court.
17. From the evidence on record, it is proved that Rajeev Kumar received knife injuries on 20.3.1985 at 8:30 p.m. He was provided first aid by Dr. Kunwar Pal Singh (PW-7). After taking first aid, Rajeev Kumar was taken to police station, where FIR was lodged at 9:30 p.m. by his brother Pradeep Kumar (PW-2). The police referred Rajeev Kumar to Government Hospital, where Rajeev Kumar was examined on 9.3.1985 at 9:45 p.m. Thereafter, he was referred to higher centre and admitted to Sarojini Naidu Hospital, Agra, where he died on 20.3.1985 at 6:30 a.m. The witnesses Pradeep Kumar, Desh Raj Singh and Amar Pal Singh (PW-2 to 4 respectively) are reliable witnesses. They have fully proved the date, time and place of the incident.
18. Megh Singh, Investigating Officer (PW-10) visited the spot on the next day, i.e. 20.3.1985. As the place of incident was public road, situated within the town, as such, there was no chance of blood stained earth being found from the spot as during this period large numbers of person came on the spot even in night. Pradeep Kumar (PW-2) has specifically stated that when Investigating Officer went on the spot, he was shown, electric wire connected from the generator of Dr. Dharmendra up to the roof of Desh Raj Singh, bulb and poll on which bulb was hanging. In his cross examination, no suggestion was given by the appellant that he was telling lie in this respect or in respect of their studying on the roof on 19.3.1985 at 8:30 PM. If Investigating Officer has committed any negligence, then prosecution case cannot be falsified. Investigating Officer wrote a letter to Superintendent of Sarojini Naidu Hospital, Agra for obtaining the blood stained clothes of the deceased, but it could not be recovered. However, from the evidence of Dr. Kunwar Pal Singh (PW-7), Dr. A.K. Garg (PW-1) and Dr. H.B. Singh (PW-11), it is fully proved that the deceased received three knife injuries on 19.3.1985 at 8:30 PM, due to which, he died on 20.3.1985 at 6:30 AM. FIR was promptly lodged. From the statements of the witnesses of fact, date, time and place of occurrence are fully proved.
19. The other argument of counsel for the appellant is that the offence u/s. 302 IPC is not made out. He relied upon Exception 4 of Section 300 IPC, which is quoted as follows: -
Exception 4 - 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.
Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault.
20. Supreme Court in Suchand Bouri v. State of W.B., MANU/SC/0568/2009 : (2009) 17 SCC 63, has held that for the invocation of Exception 4 to Section 300 IPC, it has to be probabilised by the defence that the death has occurred:
(1) in a sudden fight;
(2) without premeditation;
(3) the act was committed in a heat of passion; and
(4) the offender had not taken any undue advantage or acted in a cruel manner.
The existence of all the four requisites must be probabilised. In the absence of existence of any of the four requisites, Exception 4 has no application. By means of judicial decisions, the expression "sudden fight" occurring in Exception 4 of Section 300, though not defined, has been explained. "Sudden fight" implies mutual provocation; a bilateral transaction in which blows are exchanged-the fight is not per se palliating circumstance, only an unpremeditated fight is such. The expression "heat of passion" has been explained by the courts to mean that there is no time for passion to cool down. The act must have been committed in a fit of anger.
21. In Rampal Singh v. State of U.P., MANU/SC/0589/2012 : (2012) 8 SCC 289, held that where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the Exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed. In Richhpal Singh Meena v. Ghasi, MANU/SC/0583/2014 : (2014) 8 SCC 918, held that applying the five-step inquiry, it is clear that: (i) there was a homicide, namely, the death of Sunderlal; (ii) the assailants gave two lathi-blows to Sunderlal which resulted in the fracture of his ribs and piercing of his lungs. The injuries were not accidental or unintentional-the assailants had a common intention of grievously injuring Sunderlal and it is not as if they intended to cause some injury to him other than the ones inflicted; (iii) the opinion of Dr Amar Singh Rathore confirmed that the injuries caused to Sunderlal were sufficient to cause death in the normal course. Consequently, the homicide was a culpable homicide. It is clear that Ghasi and Lala are guilty of the murder of Sunderlal, the offence falling under Section 300 Thirdly IPC and punishable under Section 302 IPC. In State of M.P. v. Shivshankar, MANU/SC/0820/2014 : (2014) 10 SCC 366, held that help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case.'
22. According to counsel for the appellant, merely having a knife does not show that it was a premeditation for causing murder of Rajeev Kumar. It has come in the evidence of the witnesses that a scuffle was going on between Rajeev Kumar and the appellant Ajai Kumar Chauhan and due to sudden quarrel, in heat of passion, knife injury was caused, as such, Exception 4 is fully applicable in the present case.
23. We have considered the arguments of counsel for the appellant. In the present case, it has come in the evidence that the appellant had called Rajeev Kumar from the roof and after 3 - 4 minutes, cries of Rajeev Kumar were heard by the witnesses and they went on the spot and found that a scuffle was going on between Rajeev Kumar and the appellant. Thus, the appellant had called Rajeev Kumar and caused knife injuries. The site of injuries are the chest of the body, which shows that intention was to cause death. During this period, if Rajeev Kumar scuffled with the appellant to save him then no benefit can be given of the own wrong of the appellant to him. In the facts of the case, we do not find that Exception 4 of Section 300 IPC is attracted in this case.
24. In view of the aforesaid discussion, the appeal has no merit and is dismissed.
25. Office is directed to communicate this judgment to the Trial Court concerned for ensuring compliance, under intimation to this Court. Original Record be also returned.
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