Vikrambhai Kalidas Solanki vs State Of Gujarat

B.N. Karia, J

The appellant, who is a convict, has preferred this Criminal Appeal under Section 374 of the Criminal Procedure Code, 1973 ('Cr.P.C.' for short) against the impugned judgment and order 29th December 2012 passed in Sessions Case No. 12 of 2012 by the learned Addl. Sessions Judge, Kalol, Dist: Gandhinagar for an offence punishable under Section 302 of the Indian Penal Code ('IPC' for short) to undergo rigorous imprisonment for life and to pay fine of Rs. 5000/-; and in default thereof to undergo further rigorous imprisonment of one year and for the offence punishable under Section 135 of the Bombay Police Act, to pay fine of Rs. 100/-; and in default thereof, to undergo further rigorous imprisonment of three days.

Short facts of the present case are stated as under:-

2.1. That, on 28th July 2011, Bharatbhai Jethabhai Parmar, lodged a complaint, alleging that his brother deceased Mineshkumar Jethabhai went to Lovely Chowk at around 9.45 o'clock in the night for the purpose of taking Pan, at that time, Vikrambhai Solanki (accused) came there and started quarreling with his brother saying that as to why he was helping in the love marriage of his sister, and therefore, when the deceased told that she herself was intervened in love marriage, and he had not played any role in the said marriage. Thereafter, the accused gave a knife blow on the left side of his stomach and during that scuffle, immediately, the complainant intercepted, wherein, complainant also received an injury on his hand and thereafter, the accused left the place of offence. Then Jagdishbhai called the Ambulance, but the deceased succumbed to injuries in the hospital and later on, a complaint was lodged. After recording the complaint, police started investigation and after completing investigation, filed charge sheet against the accused person under Section 302 IPC and 135 of the Bombay Police Act.

2.2. The police papers were provided to the accused; as required under Section 207 Cr.P.C. The learned Additional Chief Judicial Magistrate, Kalol passed an order committing the case to the Court of Sessions as envisaged under Section 209 Cr.P.C.

2.3. Learned Additional Sessions Judge framed charge against the accused vide Exh. 3 and plea was recorded vide Exh. 4, wherein, the offence was denied by the accused. Hence, the case proceeded accordingly and following witnesses were examined by the prosecution.

2.4. Learned Addl. Sessions Judge also considered the following documentary evidences, while determining the prosecution case:-

2.5. After completing evidence of the prosecution, statement of the accused under Section 313 of the Cr.P.C. was recorded by the court. The accused denied the charges levelled against him and refused to examine the witnesses in support of his case.

2.6. Learned Addl. Sessions Judge, after hearing learned advocates for the respective parties and considering the evidence on record, was pleased to pass an order dated 29.12.2012 convicting the accused, as stated above.

3 . Heard learned counsel Mr. Dharmesh P. Nanavati for the appellant and learned A.P.P. Mr. Rakesh Patel for the respondent - State.

4 . It was submitted by learned counsel for the appellant that the order passed by learned Addl. Sessions Judge, Kalol, convicting the accused is prima facie and apparently erroneous and illegal, being contrary to the evidence on record. That, the learned trial Court has erred in considering the deposition of the complainant wherein the complainant stated that he is brother of the deceased and thus, he is an interested witness. Not only that, he never stated any version at the time of filing of FIR that when incident took place, he had intercepted and helped his brother and his brother fell down. Thus, it is clear that the complainant has developed a story in his deposition as well as in his cross-examination. That, the panch witnesses have not supported story of the prosecution. Even they have stated that at the time of incident, they were not present and while preparing panchnama, the panch witnesses had no idea as to for which offence, the police was drawing panchnama. That, neither it was the case of prosecution before the trial, nor is it established in the trial that the offence punishable under Section 302 IPC is established, as the most important aspect is lacking under Section 300 IPC. That, there was no motive or premeditation to commit the crime. That, from the evidence produced on record, it can be seen that it was a sudden quarrel which took place between the parties and without any intention, the deceased was assaulted, and therefore, it is a homicidal death not amounting to murder punishable under Section 302 IPC. That, the prosecution has not proved motive behind the assault. While relying upon a judgment, reported in 1992 Criminal Law Journal 1283, learned advocate for the appellant, in the alternative, has submitted that the appellant may be held liable under Section 304 Part 2 of IPC and not under Section 302 IPC, and therefore, the impugned judgment and order is bad in law. That, the learned trial Court has committed an error in considering the deposition of the eye witness namely Jagdishbhai (Ex. 24), wherein, this witness has stated that he saw this incident at a distance of 50 feet at night, and therefore, he has not clearly seen the offence, but with a view to support the story of prosecution case, he deposed before the court, otherwise the said witness has no personal knowledge of the said incident and there are so many contradictions in the deposition of the said witness. Ultimately, it was requested by learned advocate for the appellant to allow this Appeal.

5 . Present appeal is opposed by Mr. Rakesh Patel, learned Additional Public Prosecutor appearing for the State. He submitted that the prosecution has successfully proved its case beyond reasonable doubt. He further submitted that witnesses examined by the prosecution have supported the case of the prosecution. He further submitted that the judgment and order of conviction and sentence passed by the trial Court is on appreciation of evidence and same cannot be said to be perverse as no error has been committed by the trial Court and same is not required to be interfered by this Court. That, prosecution has examined witness Jagdishbhai Gopalbhai Vaghela vide Ex. 24, who was an eye witness present at the place of offence. Thereafter, Bharatbhai Jethabhai Parmar (P.W. 2) lodged a complaint, which is produced vide Ex. 21 before the Sessions Court. That, the clothes as well as knife used in the offence by the accused were identified by him in his deposition. That, prosecution witness Meghaben Manishkumar was present in the Civil Hospital, Ahmedabad at the time of an offence and she was informed by her brother-in-law regarding the incident. That, Dr. Jagdishbhai Nanjibhai Tank (Ex. 6) who was on duty on 28th July 2011, has started post mortem of the deceased Minesh Jethalal Parmar at 9.10 pm and has described the injuries sustained by deceased. As per the opinion issued by him on account of injury with a knife injuries sustained by the deceased was possible. The accused/appellant was also examined by this witness. In the history given before this witness, while assaulting deceased Menju (Minesh), he had sustained a sharp injury on his right palm as well as abrasion to his left leg. Injury certificate of the accused was produced vide Ex. 12. That, FSL report was produced by witness-Nemichand Rambharose Agrawal (Ex. 48) and as per opinion, his blood group was "AB". That, serological report was produced vide Ex. 49. That, a map of the place of offence was not possible to be prepared as per deposition of the PW-11-Ratansinh Raol (Ex. 52). That, wording of the incident were written by prosecution witness Joitaji Motiji Thakor, who was examined vide Ex. 56, while getting information on 28th July 2011, one person was assaulted by a knife, near Lovely chawk, Nr BVM Fatak at Kalol. Thereafter, further investigation started by PSI Mr. R.S. Patel, who was examined vide Ex. 62. He has described the fact of his having interrogated the offence in his deposition before the Court. A weapon was recovered by him and physical condition of the accused was also taken into consideration by preparing panchnama as well as panchnama of the place of offence. As the accused has also sustained some injuries, a yadi was prepared and he was sent for medical treatment, and thereafter, he was arrested and photographs of the place of offence were also collected. Statement of material witnesses were recorded by this witness and after securing necessary evidence against the accused, he had filed the charge-sheet. That, prosecution has clearly proved its case beyond reasonable doubt against the accused. Hence, it was requested by learned APP for the respondent-State to dismiss the Appeal.

6 . After examining the matter carefully and hearing learned advocates for the respective parties, if we examine the complaint lodged by Bharatbhai Jethabhai Parmar on 28th July 2011, wherein, he has stated that he himself and his family members, after taking dinner were sitting at home, his brother named Minesh went at Lovely Chawk, after sometime. Thereafter, complainant himself also went at the same place, at that time, his brother Minesh was also present. At the same time, at about 9.45 pm, Shri Vikram Kalidas Solanki who was staying in the common chali of the complainant came there and told his brother that he was intervening in the love marriage of his sister namely Tini. He was annoyed on his brother Minesh, and therefore, Minesh informed him that he was not mediator in the love marriage of his sister Tini alias Malti and she herself had got married. Thus, the said Vikram Kalidas Solanki got annoyed and took out knife from his pocket and assaulted on the stomach of his brother. He immediately also gave a second blow with the knife. His brother tried to save himself by raising his hands, however received injuries on his left hand palm. When the complainant intervened, the said Vikram left the place of offence. Shri Jagdishbhai Gopalbhai Vaghela, who was staying in Ramji Bhagat Chali also tried to prevent the accused, namely Vikram, but he could not stop him and left the place of offence. The condition of complainant's brother was not well as he was profusely bleeding. Jagdishbhai Vaghela immediately called 108 ambulance, but since the ambulance was not available at that time, a rickshaw was hired by his brother and he was shifted to Shraddha hospital at Kalol. During medical treatment, as per the statement of the complainant, his brother was expired. Dead body of his brother was taken to Civil Hospital at Kalol. At the time of offence, he himself and Jagdishbhai Vaghela were present and they have witnessed the incident. It appears that Bharatbhai Jethabhai Parmar was examined by the prosecution as prosecution witness No. 2 before the Court. He has reiterated the story made out in the complaint saying that on 28th July 2011, when he himself and other family members, after taking dinner, were sitting in the home including his brother Minesh, his brother Minesh went towards Lovely chawk. After 10 minutes, complainant himself also visited lovely chawk. At about 9.45 p.m., accused Vikram Kalidas Solanki came there and inquired as to why he was intervening in the love marriage of his sister Tini. To this query, his brother replied that he was not intervening in the love marriage of his sister Tini alias Malti, but she herself was interested to get married. The accused, thereafter, getting annoyed with this reply, took out a knife from his pocket and assaulted on the left portion of his stomach. While assaulting second time with the said knife, his brother raised his left hand, and therefore, he received second injury on his left hand when complainant tried to intervene in the incident, the accused Vikram fled away from the incident site. This witness has further stated that Jagdishbhai Gopalbhai Vaghela, who was staying in Ramji Bhagat Chali also intervened and tried to prevent the accused, but he could not stop himself. Profound bleeding was found from the body of his brother. Jagdishbhai Vaghela called the Ambulance van, but when it was not available, he hired an auto rickshaw, his brother was shifted to Shraddha hospital for medical treatment. This witness has further stated in his examination-in-chief that during the medical treatment, his brother-Minesh expired, and therefore, his dead body was shifted to Civil Hospital at Kalol. This witness has further stated in his evidence that he himself and Jagdishbhai have witnessed the incident. He has further stated that this incident took place at Lovely Chawk, near the house of Jashodaben and adjacent to the wall of Manoj Bhajiyawala. He has further stated that a complaint of this offence was given by him at Kalol City Police Station. When original complaint was shown to this witness, he has stated that it was given by him. He has identified his signature, which is produced vide Ex. 21. He has also identified clothes worn by his brother-Minesh at the time of incident ie., shirt, banian, burmudo, underwear etc., Before the court, he also identified knife which was used in the offence by the accused before the Court as well as accused. In his cross-examination, he has also stated that after recording of the complaint, it was read over to him. He has also stated in the complaint that this incident took place nearby Lovely Chawk as well as nearby the house of Jashodaben. He has further stated in his cross-examination that at about 11.55 pm, on the day of incident, he lodged a complaint before Civil Hospital at Kalol. At the time of lodging complaint, his father, uncle and other five persons were present. He denied that Vinodbhai Ranchhodbhai Solanki was known to him and he went to call him on the next day of incident as well as Manishkumar Kantilal Parmar was not known to him. Dead body of his brother, after performing post mortem, was handed over to the family members on the next date at about 10.00 o'clock in the morning and funeral ceremony was performed on the same day in the afternoon. He has further stated that on 29th July 2011, for inquiry, Police called him near the house of Jashodaben. Nobody was present at the time of such inquiry made by the Police after 2.00 p.m. It appears from cross-examination of this witness that nothing favourable in defence was available to the defence side and this complainant has supported averments made by him in his complaint made before the police.

7 . Another witness Jagdishbhai Gopalbhai Vaghela (P.W. 3) was examined by prosecution vide Ex. 24. he has projected himself as an eye witness of the incident. As per his evidence before the Court, on 28th July 2011, this incident took place when was sitting at Lovely chawk, nearby the shop of Mohan Bhajiyavala, after taking dinner. At about 10.00 p.m., deceased Minesh shouted nearby the house of one Patel, adjoining to Ambica Paan Centre, which is opposite to the shop of Mohan Bhajiya. One person gave blow of knife or gupti. This incident was seen by him from a distance of 50 feet. Thereafter, the said person, who assaulted deceased Minesh ran away from the place. Injury was found by him on the middle part of stomach and eyes. This witness rushed at the place of incident and other persons also gathered there and made efforts to call Ambulance. But, it was not responded immediately and condition of the injured was grievous. Minesh was shifted to Shraddha Hospital for his treatment. Thereafter, he was informed that Minesh has expired. That, accused Vikram got suddenly annoyed and took out a knife from his pocket and assaulted on the middle part of stomach and thereby injured Minesh. At that time, he tried to stop the accused by raising his left hand, but his left hand got injured. This witness was unable to identify accused before the Court. In his cross-examination, he has admitted that in presence of family members of the complainant and other persons, a complaint was given. He has also admitted that at the place of incident, other shops are there and there was movement on the road. This witness has no idea about the exchange of words between the accused and deceased. A statement was recorded at about 11.00 p.m. on the very same day of the incident. Around 15 persons were gathered at the time of offence. From the entire evidence of this witness, it transpires that he has not seen the face of the accused at the time of committing the crime.

8 . Wife of the deceased-P.W. No. 6-Meghaben Manishkumar Parmar has been examined by prosecution vide Ex. 35. She has stated that on receiving information that her husband was admitted in the Civil Hospital at Ahmedabad, she visited the hospital on 28th July 2011 and found that her husband Minesh was serious and thereafter, she visited her matrimonial home. She was then informed by her brother-in-law that Minesh was expired. She was also informed that on account of being a mediator in the love marriage of the sister of accused, keeping grudge, the accused had assaulted him with knife.

9 . Dr. Jagdishbhai Nanjibhai Tank-PW No. 1 has performed post mortem of the deceased on 29th July 2011. In his deposition vide Ex. 6, he has stated about injuries sustained by the deceased on his stomach and other parts of the body. Post mortem note was prepared by this witness, which is produced vide Ex. 7. While showing muddamal article No. 9 Knife, he opined that due to this weapon, injuries caused to the deceased were possible and these injuries were sufficient enough to cause death. This witness has further examined accused also on 28th July 2011. While inquiring, the accused in his hospital, it was stated that while he was blowing with a knife to Menju alias Minesh, he has sustained injuries. Two injuries were found by this witness. He has also opined that if he would have gone with knife to give blow it to deceased and if back side thereof would be inserted to the accused, then these injuries were possible. While in the history given before the Doctor, it is stated that while blowing knife at Menju @ Minesh, he has sustained two injuries. In his cross-examination, this witness has denied that on account of injuries sustained by the deceased, these injuries were not sufficient to cause death of a healthy person. He has admitted that if a person having habit of drinking liquor, and was suffering from liver disease and if such a person sustains such an injury, as sustained by the deceased, such injury would cause death of that person. He has further accepted that the accused had also received medical treatment on the same day. He has also admitted that in a quarrel between two persons, if any person would try to intervene to save other person by raising his hands, the injuries received by the accused would be possible. He has denied, while showing him muddamal article No. 1 knife, that if any person would be injured with the same knife, such injury would not cause death.

10 . As per death certificate Ex. 8, cause of death of the deceased Mineshkumar Jethalal Parmar was hemorrhagic and neurogenic shock due to vital organ (Liver) injury and colon injury due to stabbing. The evidence of this main witness supports case of the prosecution that on account of injury sustained by deceased Minesh on 28th July 2011 by the muddamal article-1-Knife, it was sufficient to cause his death.

Prosecution witness No. 4-panch witness-Govindbhai Babulal Vaghela (Ex. 25) alongwith other panch witness Dhanjibhai have consented to be panch witness of the panchnama drawn to recover clothes of the accused, namely, Vikram Solanki. That, the clothes worn by accused were described by this witness. He has also further stated that on the right hand finger, a bandage was found in a bleeding condition. Pent and shirt of the accused were recovered by the Police. This witness has further stated that a knife was used by the accused in the offence and it was sharpen and 9.5" long one inch in width with blood and it was also recovered by the Police. A detailed panchnama was prepared by the police in presence of this witness and panch No. 2 and has put his signature in presence of the Police Officer. This panchnama was produced vide Ex. 26. He has further stated that accused Vikram Kalidas Solanki was present before the Court. Muddamal article No. 1 Knife was also shown to this witness, which was the same knife as recovered while preparing the panchnama. The clothes were identified by this witness in his chief examination. In his cross-examination, he has stated that the accused himself gave his name and bandage was tied to his right hand. This panchnama was drawn in presence of both the panchas and after writing the panchnama, it was read over to them, and thereafter, they put their signatures. As the police called him during the day time, however in the panchnama, the time shown is in the night hours and no complaint was made by him to the officer. There is no reason to disbelieve the evidence given by this witness before the Court.

Panchnama Ex. 26 was duly proved by the prosecution and other panch witness-PW No. 5-Sanjaybhai Chhanabhai Parmar was examined vide Ex. 31 before the Court. As per his evidence, he was called by Police on 29th July 2019 at Lovely chawk along with another panch Shri Pravinji Babuji Thakor, resident of Kalol. Both of them have consented to be panch witnesses of the panchnama. At the place of offence, officer of the FSL Shri Mansuri was present. At the place of offence, five pieces of cotton thread were collected and on brushing the land, red spots were found and were collected by putting a cotton thread in a small plastic tin and keeping a slip with signature of the witnesses, and the said small tin was sealed and panchnama was prepared. This witness has identified his signature alongwith Pravinji Babuji. This panchnama is produced vide Ex. 32. He has also identified his signature and signature of panch No. 2 Pravinji Babuji on a slip. In his cross-examination, he has admitted that the place of incident was about half a kilometer away from his resident. While he was visiting Lovely Pan Centre, he was called by the Police to be a panch witness. No further information was given by the police to this witness in respect of panchnama of the place of offence. After completing the panchnama, it was read over to this witness. No other fruitful or favourable deposition is found from his cross-examination by the defence.

From the record, it appears that vide Ex. 37, prosecution has examined PW-7-Manoj Kantilal Parmar, who happens to be panch witness of the place of offence. As per his evidence, on 29th July 2011, he was called as a panch witness by the Police along with Panch Vindokumar Solanki at lovely chawk, nearby the house of Jashodaben. At the place of the offence, he found blood spots. The surrounding area of house of Jashodaben and boundaries were described by him in his chief examination. He himself and other panch witness had put their signatures in the panchnama Ex. 38. Defence has made cross-examination of this witness. He has admitted that no time of starting panchnama was written by him. Around 15 persons were gathered at the place of offence, when the panchnama was prepared alongwith Bharatkumar Jethalal. He has denied that details of panchnama were written by Shri Bharat Jethalal and on his instructions, he has put his signature. During the preparation of panchnama, no inquiry was made by the Police. Measurement tape was secured by the police. He has denied that panchnama was prepared by the Police in his presence and on account of friendship with the complainant, on his instructions, this panchnama was prepared and he has put his signature in the Police Station. From the deposition of this witness, it appears that the panchnama of the place of offence (Ex. 38) was prepared in presence of this witness and other panch witness named Vinod Solanki.

P.W.-8 Janmahammad Fakirbhai Mansuri, Scientific officer of FSL, Gandhinagar was examined vide Ex. 39. On telephonic message received by this witness from the control room, he visited the place of offence on 29th July 2011. Where he found some red spots. He drew the earth of red spots to ascertain human blood and the blood group. It was suggested by him to the Investigating officer to send the article weapon, clothes of the deceased and samples of threads for analysis to the FSL. A report thereof with his signature was prepared by him and was produced vide Ex. 41.

In his cross-examination, he has admitted that samples were collected after 16 hours of the offence.

Another PW-9-Govindji Babuji Vaghela has produced receipt of articles collected from the police vide Ex. 44 for analysis and analysis report was produced vide Exh. 45. That, as per his statement, total three articles/parcels "C", "D" and "I" were received for analysis. Analysis was made by this witness on 1st October 2011 and report was prepared on 20th October 2011 under his signature, which was produced vide Ex. 46. In his cross-examination, he has denied that no analysis was made by him, but the employees working under his control have prepared a false report.

16 . Prosecution has produced serological report Ex. 49 and blood group of the deceased and accused were found to be "B" and "AB" respectively. On other articles collected for analysis, it appears that blood group "B" was found and it was of human body. It was typographical error treating the blood group "B" in article "K". From all the articles, blood group "B" was found, which was of the deceased.

17 . Vardhi of the incident was noted by PW-13-Joitaji Motiji Thakor. He was in-charge of PSO in the Police Control Room, Gandhinagar. He was informed that one boy was assaulted with knife at Lovely Chawk nearby BVM Fatak at Kalol, thereafter, he was also informed at about 12.45 hours by Dr. Jagdish Tank of the Civil Hospital, Kalol that Minesh, aged about 30 years, resident of Ambedkar Nagar, Kalol was expired on account of injuries caused to him with a knife at Lovely Chawk, eastern area and dead body was brought in Civil Hospital, Kalol for performing post mortem.

Mr. Rakeshkumar Sumanbhai Patel, P.W. No. 14, who was Investigating Officer of the offence has been examined by prosecution vide Exh. 62. The procedure of investigation was narrated by him in his Chief-examination. In the cross-examination, he has not supported on any point of the defence put to him.

From the entire evidence of prosecution, it is clearly proved that at the time of offence, deceased Minesh was assaulted by the accused with a knife. Injuries sustained by the deceased were tallied by the Doctor in his evidence. The said witness has also supported the prosecution case through his evidence. Notification Ex. GG issued by the District Magistrate dated 19.07.2011 clearly proves restriction to keep any weapon including sharp cutting weapon in the specified area covering the area of incident.

20 . In order to bring home the case within Exception 4 of Section 300 IPC, the following conditions enumerated therein must be satisfied.

(i) The act must be committed without premeditation in a sudden fight in the heat of passion;

(ii) Upon a sudden quarrel;

(iii) Without the offenders having taken undue advantage; and

(iv) the accused had not acted in a cruel or unusual manner.

Arguments advanced by learned advocate for the appellant/accused, in alternate to bring this case under Exception 4 of Section 300 IPC, cannot be accepted. The Hon'ble Supreme Court in case of Sridhar Bhuyan v. State of Orissa, reported in MANU/SC/0594/2004 : (2004) 11 SCC 395 has observed as under:

"7. 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.

8 . The Fourth Exception of 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 self-control, 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'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 light of the above discussion, we have to consider whether the offence in the present case falls under Exception 4 of Section 300 IPC or not.

Complainant-Bharatbhai Jethabhai Parmar has clearly supported the prosecution case, identified the accused with a knife and his blowing the knife at deceased-Minesh. In his presence, incident took place. Panch witnesses have also supported the case of prosecution. Doctor has also stated in his evidence that injuries caused to the deceased were grievous in nature and were ante-mortem. Injuries were sufficient to cause death with a weapon knife. He has also examined the accused and in a history before the doctor by the accused, while assaulting the deceased-Minesh, he had also sustained certain injuries.

There is no sudden fight in the heat of passion or without premeditation. There is no sudden quarrel with the deceased and it cannot be said that the appellant/accused had not reacted in a quarrel or unusual manner. With a sharpen knife, the appellant/accused has given a blow on the middle part of the body of deceased Minesh. Thus, it was an act committed by the accused with a premeditation to commit the murder of Minesh. Accused was under impression that deceased was the mediator in getting love marriage of his sister Tini alias Malti. With this grievance, he made inquiry to the deceased. On receiving answer from him, he made available a knife from his pocket and assaulted on deceased by blowing on vital part of his body. Keeping knife in his pocket, with grievance of his sister love marriage, establish clear intention of the accused to commit murder.

24 . Under the circumstances, arguments advanced by learned advocate for the appellant/accused cannot be accepted, and hence, this Appeal is hereby dismissed.

The impugned judgment and order 29th December 2012 passed in Sessions Case No. 12 of 2012 by the learned Addl. Sessions Judge, Kalol, Dist: Gandhinagar convicting the appellant is hereby confirmed.