Devendra Singh Alias Chhotey and Another vs State of U.P.

Anil Kumar Sharma, J.—Challenge in this appeal is to the judgment and order dated 08.04.2003 passed by Additional Sessions Judge, Fast Track Court No.1, Farrukhabad in S.T. No. 257 of 2001, under sections 302, 504 IPC, Crime No. 82/2001, P.S. Shamshabad, District Farrukhabad, whereby both the appellants have been found guilty under section 302 and 302/34 IPC respectively and each of them had been sentenced to imprisonment for life and fine of Rs. 2,000/ with default stipulation. However, appellant Devendra Singh @ Chhotey u/s 25 Arms Act and Smt. Kanti Devi u/s 504 IPC have been acquitted.

The broad essentials of the case as borne out from the FIR and the evidence adduced in the trial Court are that on 07.05.2001 at 2.20 P.M. Samendra Singh s/o Saudan Singh, resident of village Murathi, P.S. Shamsabad submitted a written report scribed by Arvind Kumar s/o Brij Mohan Singh in P.S. Shamshabad, wherein he stated that Smt. Kanti Devi w/o Late Hakim Singh is living as keep with covillager Devendra @ Chhotey s/o Atar Singh along with her children and today i. e. 07.05.2001 in the morning there was scuffle between his five years'' old son Upendra and Raju d/o Kanti Devi aged about 1314 years and he rebuked both of them. At about 2.00 P.M. he along with his brother Suresh Chandra, mother Smt. Ganga Devi, sisterinlaw Smt. Kusma Devi was going to see off sister Krishna Devi. There is a Devi Ji''s temple near the house of Devendra Singh and when after Darshan in the temple they were leaving, Kanti Devi started abusing them saying that they have beaten her daughter and she would settle with them today. Smt. Kushma Devi, sisterinlaw of the complainant protested on her abuses whereupon Kanti Devi accosting her said ''Devendra, kill her, she should not go back alive''. On this exhortation Devendra came out from the house having country made pistol in his hand and in order to kill, fired shot on Kusma Devi. After sustaining injury she fell down and on commotion Ram Chahete s/o Ram Dularey, Ranvijay Singh s/o Ameer Singh and several other villagers arrived there and both the accused made their escape good towards Pasiyapur. Along with his injured sisterinlaw the complainant reached at the police station and submitted his written report, on the basis whereof a case at crime no. 22/2001, under sections 307, 504 IPC was registered at police station. The investigation was entrusted to S.I. R. C. Dixit who interrogated the complainant. Injured Smt. Kusma Devi along with Constable Alim Khan was sent for medical examination. Dr. Umesh Chandra Sachan PW3 conducted medical examination of Smt. Kusma Devi on 07.05.2001 at 3.30 P.M. in Govt. Hospital, Farrukhabad and he has noted the following injury in medico legal report Ex. Ka2 of Smt. Kusuma Devi:

Gun shot wound of entry 3 cm x 2.5 cm x not probed over right side of abdomen. 14 cm laterally from umbilicus. Margins are lacerated, inverted and echymosed. Multiple pellets wounds having size of 0.5 cm x 0.5 cm around wound are present. Blackening around wound is seen. It contains an area of 10 cm x 8 cm. Gun powder and tattooing not present. Fat and subcutaneous tissue coming out from wound. Advised xray.

Injury was kept under observation, xray was advised and referred to surgeon. In the opinion of the doctor the injury was fresh and caused by a fire arm weapon.

The Investigating Officer visited the place of occurrence and prepared site plan Ex. Ka11 and found an empty cartridge from the spot through memo Ex. Ka12. He recorded the statement of witnesses and arrested Smt. Kanti Devi on 08.05.2001. Injured Kusma Devi was interrogated by the Investigating Officer in Dr. Ram Manohar Lohiya Hospital, Farrukhabad, however, she succumbed to the injuries on 12.05.2001 at 1.05 P.M. in the hospital. After inquest autopsy was conducted by Dr. J. D. Sharma on 12.05.2001 at 5.15 P.M. He found that 30years'' old deceased was having average built body. Her eyes were closed and mouth was partially open. Dressing bandage over abdomen was present. Needle prick marks on front of left fore arm were found. Rigor mortis was present all over the body. He found the following ante mortem injuries on the person of the deceased:

Stitched wound 22 cm along with 16 stitches right side abdomen, 3 cm away from umbilicus. Stitches removed, surgical cat gut stitch present on the peritoneum, omentum, intestines both. Abdomen cavity foul smell fluid present about 600 ml.

Surgical stitched wound 10 cm right side on abdomen along with rubber drain tube present.

In internal examination both lungs of the deceased were found congested, on cutting pus was present at places, both chambers of the heart were full. Stomach contained 60 ml fluid. In the opinion of the doctor the deceased suffered death due to septicemic shock as a result of peritonitis on account of abdominal injury. After the death of the deceased the case was converted into section 302 IPC on 13.05.2001 and the investigation was entrusted to S.O. Hanuman Prasad Yadav. Sri Yadav on 20.05.2001 seized the blood stained wearing apparel of Smt. Kusma Devi through memo Ex. Ka8. Accused Devendra Singh was interrogated in the prison and his police custody remand was obtained from the court on 08.06.2001. On 09.06.2001 he was again interrogated at police station. The accused allegedly assured to get the country made pistol recovered, with which he has killed the deceased. He took the police party on ShamshabadFaizbagh road and from south west corner of guava orchard of Lallu r/o Kuiyan Khera he took out the country made pistol embedded in the earth at 6.45 A.M. Recovery memo was prepared at the spot and weapon was sealed. On the basis of the recovery memo a case under section 25 Arms Act was registered against accused Devendra Singh at crime no. 104/2001 under section 25/27 Arms Act, investigation whereof was entrusted to S.I. R. C. Dixit. The investigation in both the cases culminated in charge sheet against the accused persons.

After committal of the cases they were tried together by the court of Session. Charge for the offence punishable under section 302 IPC and separate charge under section 25 of Arms Act was framed against the accused Devendra Singh @ Chhotey while Smt. Kanti Devi was charged for the offence punishable under section 302/34, 504 IPC. Both the accused persons abjured the guilt and claimed trial.

In its effort to prove the case the prosecution has examined complainant Samendra Singh PW1, Suresh Chandra PW2, Dr. Umesh Chand Sachan PW3, Dr. J. D. Sharma PW4, S.I. Ghanshyam Gaur PW5, S.I. Hanuman Prasad PW6, and S.I. R. C. Dixit PW7, and Head Moharrir Nepal Singh PW8.

In their separate statements under section 313 Cr.P.C. both the accused again denied the entire prosecution story and pleaded false implication. Accused Devendra Singh has stated that his brother Ravindra Singh had forged a will in favour of his wife Dev Kunwar and last year he has taken forcible possession over his field. Complainant Samendra Singh has taken that field on Batai and he has constructed his house over 9 Biswas land of the aforesaid field. He has illicit relations with his sisterinlaw and so he got her killed. However, the accused persons have not adduced any evidence in defence.

The learned trial court after hearing the parties counsel and perusing the record of the case has found both the accused persons guilty as indicated in paragraph1 of the judgment.

We have heard learned counsel for the appellants and learned AGA for the State and have perused the original record of the case carefully.

Learned counsel for the appellant submitted that

I)that the FIR is antetimed;

II)there was no motive for the accused to kill the deceased;

III)that no independent witness has been examined in support of the case and reliance has only been placed on the testimony of interested and partisan witnesses;

IV)that manner of incident is highly improbable and the uncorroborated testimony of PW1 and PW2 does not inspire confidence

V)that the learned trial Court has erred in convicting the accused appellants u/s 302 IPC, as even if the prosecution story is believed as it is the case does not travel beyond Section 304II IPC.

In oppugnation learned AGA has contended that prior to the incident there was scuffle between the children of complainant and accused Kanti Devi on that day and without any provocation by the deceased or any of her family member, on the exhortation and instigation of his mistress Kanti Devi, accused Devendra Singh in order to kill came out with a country made pistol in his hand and fired shot on Smt. Kusuma Devi, who later succumbed to the injuries; that the prosecution has examined two eye witnesses of the incident who are close relatives of the deceased but they will not screen the real offender and would falsely implicate the accused persons with whom they have no axe to grind. She concluded that both the accused have been rightly convicted and sentenced by the learned trial Court.

The alleged incident took place on 1.45 p. m. on 7.5.2001 and its report was promptly given to the police at 2.20 p. m. the same day. The distance between the village of incident and the police station, as per check report Ex. Ka19 is only two kilometers. The injured was medically examined by Dr. Umesh Chand Sachan at 3.30 p. m. in R. M. L. Hospital, Farrukhabad on the day of incident itself on chitthi majroobi sent by the police through Constable Alim Khan of P.S. Shamsabad. It has come in the statements of PW1 and PW2 that after the incident they brought injured Kusuma Devi in a tractor to police station. The injuries sustained by Smt. Kusuma Devi have also been noted in the copy of GD Ex. Ka20 regarding registration of case u/s 307/504 IPC against the accused persons. The check report and the copy of GD aforesaid have been proved by HM Nepal Singh PW8, who is although not the scribe because the writer of these documents Constable Lakshman Singh had retired from service. Thus, the external checks available on record clearly prove that the FIR of the incident had been lodged by the complainant at the time given in check report Ex.Ka19. In the facts and circumstances of the case it cannot be said that it is antetimed or delayed. It is trite law that FIR in criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. Thus, we find that the instant report is neither delayed nor it is antetimed, so it can very well be considered for corroboration of the prosecution story.

In his written report itself, the complainant has stated about the minor incident between his only 5year old son and 1314 years'' old daughter of Smt. Kanti Devi, whereupon he rebuked both of them. He further stated that just before the incident he along with his brother, mother, sister, sisterinlaw Kusuma Devi had gone to visit Deviji temple situated near the house of the accused and then accused Kanti Devi started abusing them on the pretext that they have beaten her daughter. On protest of the deceased, accused Kanti Devi called coaccused Devendra to kill her and like a obedient servant accused came out from the house carrying country made pistol and without inquiring about the cause of altercation fired shot on the deceased, who fell down and accused persons made their escape good. Smt. Kanti Devi did not call upon her paramour Devendra Singh to kill the complainant who had earlier pacified the dispute between the two young girls or had allegedly beaten her daughter. The crossexamination of PW1 and PW2 do not indicate that there was any other previous enmity between the parties. It has come in crossexamination of PW1 that accused Devendra Singh is his cousin.

Nowadays people are losing tolerance and patience. Murders are being committed on very trivial issues, like the present one. Motive can only be perceived by the family members of the deceased, while it is primarily known to the accused and sometimes the deceased also know why he is being killed. It is locked in the mind of the accused and often the prosecution finds it difficult to unlock their mind in this regard. However, since there is eye witness the account of the incident, so motive has no such importance like the cases based on circumstantial evidence. Moreover, motive is not an ingredient of the offence, which should always be proved by the prosecution, although no crime is committed without any motive. Further, it is well settled that the prosecution is not supposed to prove motive when the prosecution relies on direct evidence, i. e., evidence of eyewitnesses. Ultimately the conviction or acquittal of the accused would depend upon the credibility of eyewitnesses, medical evidence and other circumstances. However, considering the facts of the case we find that whatever motive has been alleged by the prosecution against the accused stands proved.

Castigating the prosecution story, the learned Amicus Curiae then argued that in the written report the complainant has noted the names of the persons, who have witnessed the incident, but none of them had been examined by the prosecution. He further submitted that both the eye witnesses examined in the case are closely related to the deceased, so no reliance should be placed on their testimony. It is not the law that testimony of related or partisan witnesses should be thrown on board. It was a broadday light incident and accused persons were known to complainant and his family members from before being the residents of the same village, so there is no question of misidentity of the accused. There is no previous enmity between the parties, then why family members of the deceased would falsely implicate the accused persons leaving out the real culprits. Their relationship to one of the parties is not a factor that affects the credibility of a witness, more so, a relation would not conceal the actual culprit and make false allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. (Vide: Dalip Singh & Ors. vs. State of Punjab, AIR 1953 SC 364; Masalti vs. State of U.P., AIR 1965 SC 202; Lehna v. State of Haryana, (2002) 3 SCC 76; and Rizan & Anr. vs. State of Chhattisgarh Through The Chief Secretary, Government of Chhatisgarh, Raipur, Chhatisgarh, (2003) 2 SCC 661). It is further a settled legal proposition that evidence of closely related witnesses is required to be carefully scrutinized and appreciated before resting of conclusion the convict/accused in a given case. In case, the evidence has a ring of truth, is cogent, credible and trustworthy it can be relied upon. (Vide: Himanshu Vs. State (NCT of Delhi) (2011) 2 SCC 36; and Ranjit Singh & Ors. v. State of Madhya Pradesh, (2011) 4 SCC 336).

It has come in the statement of witnesses of fact that PW1 was taking his sister to her inlaws and her family members were going to see her off from the Deviji temple which was situated near the house of the accused which is customary in his family. This temple had been shown by the investigating officer in the siteplan. It is a custom in country side that whenever married sister or daughter leave for her nuptial home, her family members used to visit the nearest temple and after offering prayers she leaves her parental village. Since the incident had taken place near the temple, so the presence of complainant and his other family members there cannot be doubted.

Now as regards nonexamination any other socalled witness in the case is concerned, in catena of cases of the Apex Court has held that if a witness examined in the court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Nonexamination of material witness is not a mathematical formula for discarding the weight of the testimony available on record however natural, trustworthy and convincing it may be. It is settled law that nonexamination of eyewitness in a criminal trial cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. [Vide Ashok Kumar Chaudhary vs. State of Bihar, 2008 (61) ACC 972 (SC), Chowdhary Ramjibhai Narasanghbhai vs. State of Gujarat, (2004) 1 SCC 184 and Babu Ram vs. State of UP, 2002 (2) JIC 649 (SC)]. Thus, the arguments advanced by the learned counsel for the appellant on this point has no legs to stand.

Learned counsel for the appellant next urged that manner of incident is highly improbable and the uncorroborated testimony of PW1 and PW2 does not inspire confidence, so the learned trial Court has erred in placing reliance on their deposition. Both the witnesses have been extensively crossexamined about the topography of the scene of occurrence and location of Deviji temple near the house of the accused persons. They have fully supported and corroborated the site plan. It is true that these witnesses have stated in their crossexamination that there is no building/boundary of the temple and further that there is no idol and only a stone is there in the temple, but no contrary suggestion had been given to any of the witnesses or that no such temple existed near the house of the accused persons. Both these witnesses have categorically stated that there were the ladies of their house at the time of incident because the complainant was going to leave his sister to her matrimonial home and before leaving the village they have visited the temple situated near the house of the accused. PW1 has stated about the incident in his crossexamination in the following words:

At other place in crossexamination this witness has stated:

Suresh Chand PW2, the husband of the deceased has also corroborated manner of the incident and his presence at the spot in his deposition. He has been extensively crossexamined by the defence. About the real incident he has stated in his crossexamination as under:

The above deposition of witnesses of fact fully corroborate the contents of the FIR about the manner of incident. Suggestions have been given to these witnesses that complainant had illicit relations with the deceased and he was cleaning the country made pistol and accidentally it fired injuring the deceased, but both the witnesses have categorically denied this story of defence. However, in his examination u/s 313 Cr.P.C. accused Devendra Singh has stated that the complainant had illicit relations with his sisterinlaw (the deceased) and that''s why he had killed her. The accused have not examined any witness in their defence to probabilise their contention. On the basis of aforestated deposition of PW1 and PW2 learned counsel for the appellants has valiantly tried to contend that these witnesses have not seen the actual incident of shooting by accused Devendra Singh on the deceased. The argument is misconceived. The consistent statements of these witnesses is that they were in all five at the time when the ladies of the house offered prayers in the Deviji temple. All persons going together will be 34 steps ahead or behind and it would be very funny to contend that they are not at a common place. The prompt FIR of the incident and medical examination of the deceased by Dr. Sachan within two hours of the incident lend support to the deposition of PW1 and PW2. There is no material contradiction in the testimony of these witnesses which is consistent with the medical evidence adduced in the case. The doctor has found blackening around the sole gunshot injury noted on the abdomen of the deceased. The deposition of PW1 and PW2 is clear, consistent and reliable. The defence could not elicit from their statements that they had any previous enmity with the accused. They have been crossexamined on the point that Ravindra brother accused Devendra has usurped all the property left by their father on the basis of any will in favour of wife of Ravindra. It is internal dispute of accused Devendra and complainant or his brother had no concern with it, although the defence has tried to show that Suresh Chand PW2 had constructed his house on the property of accused Devendra, but this fact has been denied by both the witnesses of fact.

The last argument of learned counsel for the appellant is that the learned trial Court has erred in convicting the accused appellants u/s 302 IPC, as even if the prosecution story is believed the case does not travel beyond Section 304II IPC. His contention is that as per the prosecution story the alleged incident took place at spur of moment without any premeditation; that the accusedappellants did not know that the deceased and her family members would be visiting the temple in the noon time and as such no intention to kill the deceased for the appellants be inferred by the Court. Refuting this argument, the learned AGA has countered that neither the deceased nor any of her family had provoked any of the accused to commit any crime; that accused Smt. Kanti Devi seeing the complainant''s family started abusing them saying that they have beaten her daughter and they would settle with them today. Deceased Smt. Kushma Devi, sisterinlaw of the complainant protested on her abuses whereupon Kanti Devi accosting her said ''Devendra, kill her, she should not go back alive''. On this exhortation Devendra took out country made pistol from the house and in order to kill, fired shot on Kusma Devi. She was taken immediately taken to police station and without wasting any time was medically examined at 3.30 p. m. in Government Hospital, Farrukhabad. She fought for life for about 5 days but she lost the battle on 12.5.2001 at 1.05 p.m. in the hospital, as such accused Devendra Singh had requisite knowledge and intention to kill the deceased by firing shot on her.

In celebrated case of Virsa Singh Vs. State of Punjab [1958] S.C.R. 1495, the Apex Court has illuminatingly laid down the test of clause ''thirdly'' of S. 300 I.P.C, in the following words:

"If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and in that event, clause ''thirdly'' would be unnecessary because the act would fall under the first part of the section, namely

"If the act by which the death is caused is done with the intention of causing death."

In our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender: "If it is done with the intention of causing bodily injury to any person."

It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for interference or deduction: to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present. Once that is found, the enquiry shifts to the next clause

"and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."

The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it, that is to say, if the circumstances justify an inference that a man''s intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though an injury to the heart is shown to be present, the intention to inflict an injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining "and the bodily injury intended to be inflicted" is merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad based and simple and based on commonsense: the kind of enquiry that "twelve good men are true" could readily appreciate and understand.

To put it shortly, the prosecution must prove the following facts before it can bring a case under s. 300, "thirdly";

First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, thirdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."

In Anil Vs. State of Haryana [(2007) 10 SCC 274], relying on the ratio laid down in Virsa Singh (supra) the Apex Court has observed as under:

"In Thangaiya v. State of T.N., relying upon a celebrated decision of this Court in Virsa Singh Vs. State of Punjab 1958 CriLJ 818, the Division Bench observed:

17.These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of Clause ''thirdly'' is now ingrained in our legal system and has become part of the rule of law. Under Clause ''thirdly'' of Section 300 IPC. culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to, cause death viz. that the injury found to be present was the injury that was intended to be inflicted."

In Criminal Appeal no.1123 of 2008 Arun Raj vs Union Of India & Ors. decided on 13 May, 2010 quoting the aforesaid cases the Hon''ble Supreme Court has concluded as under:

"Thus, according to the rule laid down in Virsa Singh case even if the intention of the appellant was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point."

At this juncture it would be appropriate the observations of the Apex Court in the case of Pappu v. State of M.P. (2006) 7 SCC 391, wherein it had been observed as under:

"......The 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 the 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. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ''undue advantage'' as used in the provision means ''unfair advantage''.

In the instant case the doctor has very categorically stated that the deceased suffered death due to septicemic shock as a result of peritonitis on account of abdominal injury. Dr. Sachan in medical examination of the deceased on 7.5.2001 has found gun shot wound of entry 3 cm x 2.5 cm x not probed over right side of abdomen 14 cm laterally from umbilicus. Margins were lacerated, inverted and echymosed. Multiple pellets wounds having size of 0.5 cm x 0.5 cm around wound were present. Blackening around wound is seen. It contains an area of 10 cm x 8 cm. Gun powder and tattooing not present. Fat and subcutaneous tissue were coming out from wound. Xray was advised. The blackening around the wound clearly shows that fire was made from close range, which is in tune with the eye witness account of the incident. Although evidence was not led whether Smt. Kusum Devi underwent any surgery in R.M.L. Hospital, Farrukhabad, but autopsy notes of Dr. J. D. Sharma and his deposition show that stitched wound about 22 cm long with 16 stitches on right side abdomen 3 cm away from umbilicus was found as antemortem injury on the person of the deceased. After removal of stitches surgical cat gut stitch was present on peritoneum, omentum, and both intestines. Abdomen cavity contained about 600 ml. foul smell fluid. Another stitched wound 10 cm right side on abdomen along with rubber drain tube was noted. These facts clearly show that the deceased prior to her death underwent surgery in the hospital but she could not survive due to septicemic shock as a result of peritonitis on account of abdominal injury. The peritoneum, omentum and both intestines of deceased were repaired. Dr. Sharma in his deposition has proved his report and he has been crossexamined by the defence, but nothing adverse could be elicited to show that there was any other cause of the death of the deceased rather he has reiterated his findings about the cause of death of the deceased. Thus, the ratio given in the case of Arjun Raj (supra) fully applies to the instant case, so the inescapable conclusion is that even if the intention of the appellant Devendra Singh was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 IPC clearly brings out this point. It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the respondent caused the death of the deceased with an intention of causing death or not. The case in hand pertains to use of firearm by accused Devendra Singh and he caused firearm injury on the abdomen of the lady deceased, who was unarmed and has not any provoked to either of the accusedappellant. She simply objected to the abuses hurled by accused Kanti Devi to complainant. In fact she accused the complainant for having beaten his daughter earlier in the day which was protested by the deceased. She did not provoke accused Devendra Singh at all, who came on the spot from inside his house carrying country made pistol and without knowing the cause of altercation or inquiring into the matter, he fired shot from close range on the deceased, who sustained fatal injury. Further it is also not shown that the accused has not taken undue advantage or acted in cruel or unusual manner. He has taken undue advantage of the situation being at home and none of the companion of the deceased was carrying any arm. They were just returning after darshan in the temple situated near the house of the accused persons. Thus, we conclude our exercise by observing that the accusedappellants have been rightly held guilty for committing the murder of Smt. Kusuma Devi.

In view of our preceding analysis, we find that the appeal sans merits and is accordingly dismissed. The impugned judgment and order of the trial Court are confirmed. Accused Devendra Singh is in jail and would serve out the remaining part of his sentence. Accused Smt. Kanti Devi is on bail. She shall be taken into custody forthwith by the Chief Judicial Magistrate, Farrukhabad and for this purpose he would issue nonbailable warrant of arrest which should be executed with expedition. Her bail bonds are cancelled.

Let certified copy of the judgment be immediately sent by the office to the concerned Court and the Chief Judicial Magistrate, Farrukhabad for ensuring immediate compliance which should be reported to this Court within 6weeks.

Sri Vishnu Sharan Misra, Amicus Curiae would get Rs. 2,100/ as his remuneration, which should be paid to him within a month.