Sanjay vs State of U.P.

Vijay Kumar Verma, J.—This appeal, under section 374 (2) of the Code of Criminal Procedure (in short the Cr.P.C.) has been preferred against the judgement & order dated 26.4.2007, passed by Sri. O.P. Goel, the then 1st Additional Sessions Judge, Kannauj, in S.T. No. 124 of 2005, whereby the appellantaccused Sanjay has been convicted and sentenced to imprisonment for life under section 302 IPC in Case Crime No. 100/2005 of P.S. Saurikh, District Kannauj.

The incident resulting in instantaneous death of the deceased Kuldeeip son of the complainant Smt. Brij Rani W/o Sri Veer Singh, R/o Mohalla Kachhiyana, Kasba and P.S. Saurikh, District Kannauj occurred on 15.3.2005 at about 5.45 p.m. in the market of kasba Saurikh near the Aatachakki of Lala Pramod Gupta. The first information report was lodged by Smt. Brij Rani at P.S. Saurikh on the same day at 6.40 p.m. The case of prosecution, as appearing from the chik FIR Ext. Ka 12, in brief, is that on 15.3.2005, the complainant Smt. Brij Rani and her son Kuldeep had gone to purchase vegetables in Saurikh Bazar. When after purchasing vegetables, they were returning to their house and reached near the Aatachakki of Lala Pramod Gupta at about 5.45 p.m., the accused Sanjay having a chhuri in his hand met there and began to hurl abuses to Kuldeep. When Smt. Brij Rani and Kuldeep protested and asked Sanjay not to hurl abuses, he stabbed chhuri in the chest of Kuldeep, who succumbed to the injuries instantaneously. This incident was witnessed by Smt. Brij Rani. On her raising hue and cry. Ram Singh, Ram Murti, Dayalu and many other persons came there and saw the incident and when they challenged the accused, he fled away carrying the chhuri.

Leaving the dead body of her son at the place of incident in supervision of her family members, Smt. Brij Rani went to P.S. Saurikh and handed over the written report Ext Ka 4. On the basis of this written report, the then head moharrir Tribhuwan Singh prepared chik FIR Ext. Ka 12 and registered a case under section 302 IPC at Crime No. 100 of 2005 on 15.03.2005 at 6.40 p.m. against the accused Sanjay Balmiki and made entry in G.D. No. 26 at the same time vide Ext. Ka 13.

S.I. Ahibaran Singh (P.W.6) was posted as Station Officer at P.S. Saurikh. On registration of the FIR, he started the investigation immediately and after recording the statement of Smt. Brij Rani at the police station, he went to the place of incident along with S.I. K.P. Singh, S.I. Yashwant Singh and some other police personnels. On his direction, S.I. K.P. Singh conducted inquest proceeding on the dead body of the deceased Kuldeep on 15.3.2005 in between 7.45 to 8.55 p.m., during which inquest report Ext. Ka 3 and connected papers Ext. Ka 4 to Ext. Ka 6 were prepared and thereafter the dead body in sealed condition was sent through the constables Beche lal and Shiv Bahadur for postmortem examination, which was conducted by Dr. Dinesh Singh (P.W.5) on 16.3.2005 at 2.00 p.m. According to the postmortem report Ext. Ka 2, the following antemortem injuries were found on the person of deceased:

Spendle shaped stab wound 3 cm x 1.5 cm. x Chest cavity deep, left side anterior chest, 9 cm below the left nipple at 7 O''clock position. Margins were inverted and sharp cut. Abaraded contusion over lower limb of wound was found present. On dissection, left pleura, lung and base of ventricle were found sharp cut. Chest and pericardium cavity were full of blood.

In internal examination, there was sharp cut in 7th rib on left side. Semi digested rice with yellow colour liquid about 200 ml. was found present, in stomach. Gases and pasty matter in small intestine and faecal matter and gases in large intestine were found present.

According to Dr. Dinesh Singh, the death was caused due to shock and haemorrhage, as a result of antemortem injury.

After sending the dead body for postmortem examination, S.I. Ahibaran Singh made spot inspection at the instance of the complainant Smt. Brij Rani and prepared site plan Ext. Ka 7. Thereafter he collected blood stained and simple earth (Material Ext. 3 & 4) from the place of incident and after filing the same in two containers prepared fard Ext. Ka 8. Thereafter on the same day at the information of the informer, the accused Sanjay was arrested at about 10.15 p.m. and on the basis of his disclosure statement, one chhuri (Material Ext. 2) was recovered at his pointing out from his house vide fard Ext. Ka 9, which was got prepared by S.I. K.P. Singh. The investigating officer thereafter prepared site plan Ext. Ka 10 of the place of recovery of chhuri. After recording statements of other witnesses and completion of investigation, chargesheet Ext. Ka 11 under section 302 IPC was submitted against the appellantaccused.

On the case being committed to the Court of sessions for trial, charge under section 302 IPC was framed against the accused, to which he pleaded not guilty and claimed to be tried.

The prosecution in order to prove its case, examined six witnesses in all. P.W.I Smt, Brij Rani is the complainant and she is also the eyewitness of the incident of murder of her son. P.W.2 Ram Singh and P.W.3 Dayalu also are the eyewitnesses of the said incident. P.W. 4 Dinesh Kumar is the scribe of written report Ext. Ka 1, on the basis of which FIR was registered. P.W.5 Dr. Dinesh Singh, who had conducted autopsy on the dead body of the deceased Kuldeep, has proved postmortem report Ext. Ka 2. P.W. 6 S.I. Ahibaran Singh is the Investigating Officer. He has proved various papers as mentioned hereinabove. In addition, he has also proved the chik FIR Ext. Ka 12 and copy of G.D. No. 26 dated 15.3.2005, Ext. Ka 13 regarding registration of case.

In his statement recorded under section 313 Cr.P.C., the accused denying his participation in the alleged incident has stated that due to enmity he has falsely been implicated in this case. It is further stated by the accused that the witness is relative of the complainant, who wanted him to become informer of the police and when he declined to be the informer, he has falsely been roped into this case.

The accused has not led any evidence in his defence.

The learned Trial Court having considered the evidence, convicted and sentenced the appellantaccused as mentioned in para (1) above. Hence, this appeal.

We have heard Sri Bhagwan Das Sharma, learned Counsel for the appellant, Sri R.K. Singh, learned A.G.A. for the State and also perused the impugned judgement and entire evidence on record carefully.

Regarding the incident, in which the death of deceased Kuldeep was caused, the prosecution has examined three witnesses. P.W. 1 Smt. Brij Rani is the mother of the deceased. She is also the eyewitness of the incident on murder. In her statement recorded on 24.7.2006 in Trial Court, Smt. Brij Rani has stated that about 11/2 year ago, she had gone to purchase vegetables from Saurikh market with her son Kuldeep and when after purchasing the vegetables, they both were going to their house and reached near the Aata Chakki of Pramod Lala at about 5.45 p.m., the accused Sanjay met them on the road and began to abuse her son. It is further stated by Smt. Brij Rani that when she restrained the accused from abusing, he stabbed her son Kuldeep by chhuri, due to which he fell down and died instantaneously. It is also stated by this witness that on hearing her cry, Ram Singh, Ram Murty, Dayalu and many other persons came there and saw the incident and when they challenged the accused, he fled away carrying the chhuri. Written report Ext. Ka1 has been proved by Smt. Brij Rani and it is stated by her that she got this report scribed by Dinesh and handed over the same at P.S. Saurikh. Lengthy crossexamination has been made from this witness on behalf of the accused by his Counsel, but nothing material could be elicited from her in crossexamination. There is no serious infirmity in the statement of Smt. Brij Rani and her testimony inspires confidence. He has fully supported the F.I.R. version. Hence, there is no reason to disbelieve her testimony, which is worthy of credence and on the basis of her testimony, it is fully proved beyond reasonable doubt that at the fateful time, she was present with her son Kuldeep, who was stabbed to death by the accused Sanjay in Saurikh market near Aata Chakki of Pramod Lala at about 5.45 p.m.

The testimony of Smt. Brij Rani finds corroboration from the medical report. The postmortem examination on the dead body of deceased Kuldeep was conducted by Dr. Dinesh Singh, P.W. 5 on 16.3.2005 at 2.00 p.m. The postmortem report Ext. Ka2 shows that one antemortem spendle shaped stab wound measuring 3 cm x 1.5 cm x chest cavity deep was found on the person of deceased. Dr. Dinesh Singh has stated in his statement that antemortem injury on the person of deceased was possible to be caused on 15.3.2005 at about 5.45 p.m. by some sharp edged weapon like chhuri. Death of deceased was caused due to shock and haemorrhage as a result of this antemortem injury. In this way, the medical evidence is fully supporting oral evidence of Smt. Brij Rani in this case.

Two other witnesses namely Ram Singh (P.W. 2) and Dayalu (P.W. 3) have also been examined by the prosecution to prove the incident of murder. Although the witness Ram Singh had not seen the accused actually stabbing the deceased, but on the basis of his testimony also, this fact is borne out that the deceased Kuldeep was stabbed to death in Saurikh market near Aata Chakki of Pramod Lala. P.W. 2 Ram Singh has stated in his crossexamination that by the time, he reached the place of incident, the accused Sanjay had fled away and he had seen him while fleeing away carrying the chhuri in his hand. P.W. 3 Dayalu has given the eyewitness account in his statement recorded on 2.9.2006. He has stated that on 15.3.2005 at about 5.45 p.m., when he was going from cold storage towards the market and reached near to the Aata Chakki of Pramod, he saw that the accused Sanjay was hurling abuses to Kuldeep, who was coming with his mother. It is further stated by Sri Dayalu that when Kuldeep and his mother asked Sanjay not to abuse, he (Sanjay) gave chhuri blow to Kuldeep and when he and other witnesses reached on the place of incident on hearing the cries of Kuldeep and his mother and challenged Sanjay, he took out the chhuri from the body of Kuldeep and fled away. Nothing material could be elicited from this witness in crossexamination and his testimony also is worthy of reliance. Although statement of the witness Dayalu was not recorded during investigation by the Investigating Officer, but in our view, his testimony cannot be discarded on this ground, because his name is mentioned as witness in the F.I.R., which was lodged just after fifty five minutes of the incident. It is specifically stated by this witness that the incident had occurred in southern side of Aata Chakki of Pramod Lala and at that time Kuldeep was going from north to south carrying the vegetables. The statement of this witness finds corroboration from the site plan Ext. Ka7, according to which, the deceased was stabbed to death by the accused at the place marked by letter ''A'', which is situated in southern side of Aata Chakki of Pramod Gupta. According to the site plan, the dead body of deceased Kuldeep was also found lying at the place marked by letter ''A''.

On the basis of the oral and medical evidence as mentioned hereinabove, it is fully proved beyond reasonable doubt that on 15.3.2005 at about 5.45 p.m., the deceased Kuldeep and his mother Smt. Brij Rani ''(P.W.I) were going to their house after purchasing vegetables in Saurikh market and when they reached near to the Aata Chakki of Pramod Gupta, the accused Sanjay met them and began to hurl abuses to Kuldeep, who raised protest and asked the accused not to abuse him, on which the accused stabbed Kuldeep to death by means of chhuri.

Regarding the testimony of Smt. Brij Rani, it was vehemently contended by learned Counsel for the appellant that she is interested witness being the mother of deceased and hence, her testimony could not be relied upon. In this regard, it was also contended by the learned Counsel that the witnesses Ram Singh and Dayalu also are not independent witnesses, as they belong to the caste of Smt. Brij Rani and they are also her relatives. It was further submitted by the learned Counsel that the incident had occurred in the crowded market, but no shopkeeper or any other independent person has been examined by the prosecution and hence the conviction of the appellant merely on the basis of interested witnesses is not in accordance with law. We are not at all impressed with these contentions of the learned Counsel for the appellant. We have already said that the testimony of Smt. Brij Rani is worthy of credence. Hence, her testimony cannot be discarded merely on the ground that she is the mother of the deceased. The testimony of Ram Singh and Dayalu also cannot be discarded on the ground that they belong to the caste of deceased and are his relatives. The law is well settled that if testimony of any witness is found worthy of reliance, then his testimony cannot be brushed aside on the ground that he is related to the deceased or victim.

In the case of Dalip Singh and others v. State of Punjab, AIR 1953 SC 364 it has been laid down as under by Hon''ble Apex Court:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts."

The above decision has been followed in Guli Chand and others v. State of Rajasthan, 1974 (3) SCC 698 in which Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 was also relied upon.

Again in Masalti and others v. State of U.P., AIR 1965 SC 202 the Hon''ble Apex Court observed thus:

"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses............. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

In Israr v. State of U.P., 2005 (51) ACC 113 rejecting the concept of discarding a witness on the ground of relationship, the Hon''ble Apex Court in para 12 of the judgment held as under:

".........Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."

The above position has been highlighted in Galivenkataiah v. State of A.P., 2008 (60) ACC 370 in which reference has been made to some other cases also.

Therefore having regard to the observations made by the Hon''ble Apex Court, the testimony of Smt. Brij Rani or the witnesses Ram Singh and Dayalu cannot be discarded merely on the ground that they are related to the deceased, as their testimony is convincing and trustworthy, which finds corroboration from the medical and other evidence on record. In our considered view, the testimony of these witnesses cannot be discarded for nonexamination of any shopkeeper or other independent person as witness, as generally the people avoid to appear as witness even if they had witnessed the incident. The Hon''ble Apex Court in the case of Appa Bhai and another v. State of Gujarat, AIR 1988 SC 696 = 1988 (25) ACC 168 (SC) in para 11 of the judgment has observed as under:

".........Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the nugget of truth with due regard to probability, if any, suggested by the accused." 22. In the case of Krishna Mochi v. State of Bihar, 2002 (45) ACC 1 (SC) = 2002 SCC (Cri) 1220 the Hon''ble Apex Court in para 31 of the judgment has made the following observations:

"It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or highups in the Government or close to powers, which may be political, economic or other powers including muscle power."

It was further submitted by the learned Counsel for the appellant that there was no motive for the accused to commit the murder of deceased and hence, on this ground also, the conviction of the accused is bad in law. We find no force in this contention. Although in the F.I.R. or statement of Smt. Brij Rani, no motive for committing the murder of deceased has been assigned, but on this ground, the conviction of the accused cannot be said to be illegal. It is well settled principle of law that where there is direct evidence to prove the guilt of the accused and the evidence led by the prosecution to prove its case is worthy of reliance, then weakness or absence of motive looses significance. In instant case also, there is cogent, convincing and reliable direct testimony of three witnesses as mentioned above to establish the complicity of the accusedappellant in the incident of murder of deceased Kuldeep. Hence, conviction of the appellant cannot be said to illegal for want of motive to commit the crime. In the case of Thaman Kumar v. State of Union Territory of Chandigarh, 2003 (47) ACC 7 (SC) = (2003) 6 SCC 380 the Hon''ble Apex Court has observed as under:

"There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved".

The following observations have been made in the case of State of H.P. v. Jeet Singh, 1999 (38) ACC 550 (SC) = (1999) 4 SCC 370 by the Hon''ble Apex Court:

"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended".

Next submission made by the learned Counsel for the appellant was that there are some contradictions in the testimony of the witnesses examined by the prosecution. We have carefully gone through the statements of the witnesses Smt. Brij Rani, Ram Singh and Dayalu. There is no contradiction in the testimony of these witnesses on any material point and due to some minor contradictions, their testimony cannot be brushed aside. In the case of Leela Ram v. State of Haryana, JT 1999 (8) SC 274 = 2000 (40) ACC 34 (SC) the Hon''ble Apex Court in para 9 of the report has held as under:

"When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant detail. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But Courts should bear in mind that it is only when discrepancies ''in the evidence of a witness are so incompatible, with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."

The Court further observed:

"It is a common practice in Trial Courts to make out contradictions from the previous statement of a witness for confronting him during crossexamination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.

Therefore, the testimony of Smt. Brij Rani and other witnesses cannot be discarded due to some minor contradictions occurring in their statements regarding the place of incident or some other matter.

Regarding the recovery of chhuri at the pointing out of appellantaccused Sanjay, it was contended by his Counsel that no witness of public was called at the time of alleged recovery of chhuri, which is said to have been made by the Investigating Officer S.I. Ahibaran Singh P.W. 6 from the house of accused. It was also submitted by the learned Counsel that the accused could easily throw the chhuri anywhere and would not keep the blood stained chhuri in his house. If accepting these submissions, the evidence regarding the recovery of chhuri at the pointing out of the accused is ignored, even then the prosecution case would not be materially affected, because on the basis of reliable and convincing oral evidence of P.W. 1 Smt. Brij Rani coupled with medical evidence and corroborative evidence of P.W. 2 Ram Singh and P.W. 3 Dayalu, it is fully established beyond reasonable doubt that the deceased Kuldeep was stabbed to death by the accused Sanjay on the alleged date, time and place.

Lastly, it was submitted by learned Counsel for the appellant that the offence punishable under section 302 I.P.C. is not made out in this case and even if the prosecution version and the evidence produced in support thereof is accepted to be true on its face value, the case would not travel beyond section 304, Part (I) or (II) I.P.C., as there was no intention on the part of the accused to cause the death of deceased and since only one blow was given to the deceased, hence second Clause of section 299 I.P.C. will be applicable in this case. It was also submitted by the learned Counsel that the appellant is entitled to get benefit of Exception 4 to section 300 I.P.C., as the accused had caused injury to the deceased without premeditation in sudden fight in heat of passion without taking undue advantage or acting in a cruel or unusual manner.

The learned A.G.A. on the other hand contended that the injury caused by the accused was sufficient in the ordinary course of nature to cause death and hence, the case is squarely covered by third Clause of section 300 I.P.C. It was further submitted by learned AGA that the accused is not entitled to get benefit of Exception 4 to section 300 IPC, as there was no fight in this case and the accused taking undue advantage and without any justification caused instantaneous death of deceased and hence the offence of murder punishable under'' section 302 I.P.C. is clearly made out in this case.

Having given our thoughtful consideration to the rival submissions, we are not impressed with aforesaid contention of the learned Counsel for the appellantaccused. For bringing in operation of Exception 4 to section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. A sudden fight implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. A fight suddenly takes place, to which both parties are more or less to be blamed. A fight is a combat between two or more persons with or without weapons. In instant case, there was no fight at all, what to say of sudden fight. When the deceased Kuldeep and his mother Smt. Brij Rani were going to their house after purchasing vegetables, the accused Sanjay met them in the market and began to hurl abuses to Kuldeep and when he and his mother asked the accused not to abuse, he immediately stabbed chhuri in the chest of deceased, thereby causing his instantaneous death. In this case, no fight had taken place between the deceased and the accused. No provocation was given by the deceased and it was the accused himself who after hurling abuses to the deceased, pierced a chhuri in his chest with great force, thereby causing spendle shaped stab wound 3 cm x 1.5 cm x chest cavity deep. It has come in evidence that the deceased was disabled person. The accused without any justification and taking undue advantage, caused the death of deceased by stabbing him in the chest. Hence Exception 4 to section 300 IPC is not attracted in this case.

The question of applicability of Exception 4 to section 300 IPC has been considered by Hon''ble Apex Court recently in the case of Galivenkataiah v. State of A.P., 2008 (60) ACC 370 (SC) = 2007 (60) AIC 40 (SC). The following observations made in para 16 of the judgment are worth mentioning:

"The fourth Exception to section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men''s sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight: (c) without the offender 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 or 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".

Keeping in view aforesaid observations made by Hon''ble Apex Court and having regard to the facts of this case, we are of the considered view, that the appellantaccused Sanjay is not entitled to get benefit of Exception 4 to section 300 IPC, as all the ingredients mentioned in Exception 4 are not found in this case.

Now the question arises as to what offence is made out in this case. Section 299 I.P.C. defines culpable homicide as under:

"299 Culpable Homicide.Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Murder is defined under section 300 I.P.C. which reads thus:

300 MurderExcept in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

Secondly................

ThirdlyIf it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

Fourthly................

Illustration ''C'' to section 300 IPC is also relevant in this regard, which is as under:

(c) A intentionally gives Z a swordcut or club wound sufficient to cause the death of a man in the ordinary course of nature, Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z''s death." 32. The postmortem report (Ext. Ka 2) shows that antemortem injury caused to the deceased Kuldeep was spendle shaped stab wound 3 cm x 1.5 cm x chest cavity deep on left side anterior chest with inverted and sharp cut margins. On dissection of the wound, left pleura, lung and base of ventricle were found sharp cut. In internal examination, there was sharp cut in 7th rib on lift side. Dr. Dinesh Singh (P.W.6), who conducted autopsy on the dead body, has opined that ante mortem injury on the person of deceased was sufficient to cause death. No crossexamination has been made from this witness on this point. There is no reason to disbelieve the statement of Dr. Dinesh Singh. Although the accused might not have intended to cause the death of deceased, but he certainly had intended to cause bodily injury to the deceased and since the bodily injury caused by the accused was sufficient in ordinary course of nature to cause death, hence in our considered view, the case is squarely covered by third Clause of section 300 I.P.C. and second clause to section 299 I.P.C. is not applicable in this case, as blow by chhuri was given by the accused with great force, thereby causing instantaneous death of the deceased. In this regard, we would like to refer the case of Jai Prakash v. State (Delhi Administration), 1993 (30) ACC 755 (SC) = (1991) 2 SCC 32. In that case also, only one blow by kripan was given by the accused, which caused instantaneous death of the deceased. The doctor had opined that the injury was sufficient to cause death in the ordinary course of nature. Applying third clause of section 300 I.P.C., the conviction of the accused under section 302 I.P.C. was upheld by Hon''ble Apex Court. It is held in para 10 of the judgment that it is fallacious to contend that when death is caused by a single blow, clause thirdly of section 300 I.P.C. is not attracted. Reference has been made to the case of Virsa Singh v. State of Punjab, AIR 1958 SC 465 which has been followed in many other cases. Therefore, having regard to the law laid down in aforesaid cases, in our opinion the learned Trial Court has not committed any illegality in convicting the appellantaccused under section 302 I.P.C. Therefore, no interference is required in the order of conviction of the appellantaccused.

However, the learned Trial Court has committed illegality in passing the sentence, as no fine has been imposed, whereas it is mandatory to impose fine in addition to the substantive sentence of imprisonment for the offence punishable under section 392 I.P.C., as the language used in section 302 I.P.C. is, "and shall also be liable to fine". Where the expression used by the legislature in the sections for which conviction is recorded is "and shall also be liable to fine", the Court is under obligation to impose fine also in addition to the substantive sentence of imprisonment. No discretion is left to the Court to levy or not to levy fine and imposition of both imprisonment and fine is imperative in such case, as held by Hon''ble Apex Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India and others, AIR 1999 SC 2881 in which reference has been made to the case of Rajasthan Pharmaceuticals Laboratory, Bangalore v. State of Karnataka, (1981) 1 SCC 645.

In view of the foregoing discussion, the appeal has to be dismissed, as the learned Trial Court has not committed any error of law or fact in convicting the appellantaccused. Since the State of U.P. has not preferred any appeal for enhancement of sentence, hence we are not inclined to enhance the sentence by imposing fine.

Consequently, the appeal is dismissed. The appellantaccused Sanjay is undergoing sentence in jail. He shall be kept there to serve out the remaining sentence.

The office is directed to return the Trial Court record expeditiously along with a copy of this judgment for necessary action.