R. N. Aggarwal ( 1 ) KRISHAN Kumar, the appellant herein, was triedin the court of an Additional Sessions Judge on the charge of murderingashok Kumar. The learned Additional Sessions Judge held the accused guilty and sentenced him to rigorous imprisonment for life. Against hisconviction and sentence the accused has come in appeal. ( 2 ) THE deceased, the appellant, and the two alleged eye witnesses,namely, P. W. 3ravinder Singh and P. W. 4 Rajesh Vaid alias Dabba residedin Sector 12, R. K. Puram. The deceased and Ravinder Singh were neighboursthe house number of Ravinder Singh is 842 and that of the deceasedwas 843. The appellant and Rajesh Vaid resided in the same locality. Theywere students and friends. ( 3 ) ON 13/01/1979 at about 6 p. m. P. W. 3 met the deceased atthe bus stop of D. T. C. near Sangam Cinema. The deceased wanted toaccompany P. W. 3 but P. W. 3 told him that he was not going to his house but was going to the goggle shop beyond Sangam Cinema. The deceased toldp. W. 3 that he would accompany him wherever he may be going. ( 4 ) THE house of Krishan Kumar appellant is near the said bus stop. The deceased told Ravinder Singh that he was going to the house ofkrishan Kumar and he should wait for him. According to P. W. 3 the deceased went to the house of Krishan Kumar and from the road side shoutedfor him saying abey KRISHAN NICHE AA . The deceased again shoutedfor the appellant saying "tuje SUNAI NAHIN DAITA MEIN TUMENICHE BULA RAHA HOON, NICHE AA". ( 5 ) KRISHAN Kumar felt offended against the manner in which thedeceased had called him from the road side. Krishan Kumar accompaniedby P. W. 4 came down and protested to the deceased over the manner he hadcalled for him and said that he should maintain his dignity in the mohalla. The deceased retorted that he had hardly any respect in the Mohalla. Onthat both the deceased and the appellant quarrelled and exchanged a fewblows. P. Ws 3 and 4 intervened and separated them. The deceased retorted that he had hardly any respect in the Mohalla. Onthat both the deceased and the appellant quarrelled and exchanged a fewblows. P. Ws 3 and 4 intervened and separated them. ( 6 ) ACCORDING to P. W. 3 he moved a little ahead and on looking backhe saw Ashok Kumar and Krishan Kumar quarrelling and both fell in adrain; thereafter, the accused went away and he saw the deceased puttinghis hand on his back and on his enquiry the deceased told him that he hadbeen stabbed with a chhuri by Krishan Kumar. (We may notice here thatp. W. 3 in the first report had stated that after he and P. W. 4 had separatedthe deceased and the appellant he and the deceased moved away and in themeanwhile the appellant went upstairs and came with an Open knife in hishand and stabbed Ashok Kumar ). ( 7 ) P. W. 3 removed Ashok Kumar to Safdarjung hospital where hewas admitted at 6. 15 p. m. He was examined by Dr. Hariharan who found aclean incised wound 1 i" long x 3/4" wide on the left lateral aspect of thelower aspect of the back of chest. ( 8 ) DR. R. P. Kothari (P. W. I) examined Ashok Kumar at 7. p. m. andadvised that the patient should be admitted in the Emergency Ward for anoperation. Dr. Kothari performed the operation but Ashok Kumar died onthe 14/01/1979 at 1. 05 a. m. Dr. Dogra performed the autopsy on thedead body of Ashok and found the following injuries : "1. Incised wound 2 x 0. 8 c. m. obliquely placed 19 c. m. below theleft axilla in mid-axillary line 16. 5 c. m. away from the mid-lineon left lateral aspect of chest in 8th inter-costal space. 2. Incised wound on left side back of chest 2. 5 x 1. 5 c. m. spindleshaped, not stitched, 12. 5 c. m. below and in line of the inferiorangle of the scapula in the 10th intercostal space 8 c. m. lateral tomid-line. "the doctor gave the opinion that injuries 1 and 2 were sufficient to causedeath in the ordinary course of nature and the said injuries could be causedby a sharp edged weapon. 5 c. m. below and in line of the inferiorangle of the scapula in the 10th intercostal space 8 c. m. lateral tomid-line. "the doctor gave the opinion that injuries 1 and 2 were sufficient to causedeath in the ordinary course of nature and the said injuries could be causedby a sharp edged weapon. ( 9 ) CONSTABLE Ramesh Ghander (P. W. 7) was on duty at Safdarjunghospital and he informed the police post R. K. Puram about the admission ofashok in the hospital in an injured condition. P. W. 8 constable Mohan Singhmade an entry in the daily diary regarding the report made by P. W. 7 andsent a copy of it to Sub-Inspector Ubraj Singh who was on patrol duty in thearea. P. W. 19 Ubraj Singh on receipt of the report went to the hospital andmade an application to the doctor to find out if Ashok Kumar was fit tomake statement. The doctor reported that the patient was not fit for, makingstatement. Public Witness 19 recorded the statement Ex. PW3/a of Ravincer Singhand with his endorsement Ex. Public Witness 17/a sent the rukka Ex. Public Witness 3/a to thepolice Station for formal registration of the case. The formal report wasrecorded at the police station at 7. 30 p. m. ( 10 ) ON 20/01/1979 Krishan Kumar surrendered himself inthe court of Shri Tandon, Metropolitan Magistrate and he was taken intocustody. On information given by the accused a woollen jersey was recovered from under the water tank on the roof of the house. P. W. I 9 found afew blood stains on the front side of the jersey and he seized the jersey andsent it for examination to the Forensic Science Laboratory. The stains werefound to be of human blood but the blood group could not be found out. The Trial Judge has not believed the recovery and, therefore, we will leaveit out of consideration. ( 11 ) THE accused in his statement at the trial except admitting thathe knew Rajesh Vaid denied the prosecution case in toto. The accusedstated that on the date of the occurrence he was not in Delhi and had gone tohis uncle in village Hond, Tehsil Bhiwani, Haryana and he returned fromthat place on 20/01/1979 when he was informed by his father that hewas wanted by the police on which he surrendered himself in court. The accusedstated that on the date of the occurrence he was not in Delhi and had gone tohis uncle in village Hond, Tehsil Bhiwani, Haryana and he returned fromthat place on 20/01/1979 when he was informed by his father that hewas wanted by the police on which he surrendered himself in court. Theaccused in support of the plea of alibi examined Radhey Shyam. (D. W. 2 ). ( 12 ) WE have examined the plea of alibi taken by the accused and wehave no hesitation in holding that it has no truth in it. Actually, even thelearned counsel for the appellant did not address any argument on the pleaof alibi. ( 13 ) THE case for the prosecution mainly rests on the testimony ofp. Ws 3 and 4 and the dying declaration made by the deceased before Dr. Hariharan and constable Ramesh Ghander. The presence of P. Ws 3 and 4at the spot of the occurrence during the occurrence cannot be doubted at all. P. Ws 3 and 4 fully supported the prosecution case upto the stage where P. Ws3 and 4 intervened and separated the deceased and the appellant; P. Ws 3 and4 have not told the whole truth and tried to favour the accused. ( 14 ) P. W. 3 gave evidence that after he and Rajesh had intervenedand separated Ashok and Krishan he moved away a little and on lookingback he saw Ashok and Krishan quarrelling and both of them fell in thedrain, and thereafter the accused went away and he saw Ashok Kumarplacing his hand on his back and that when he went near Ashok Kumar hetold him that he had been stabbed with a chhuri by Krishan Kumar. ( 15 ) WE have earlier noticed that P. W. 3 in his statement before thepolice had stated that after he and Rajesh intervened and separated Ashokand Krishan, he and Ashok moved away and Krishan went upstairs andcame back with an open chhuri in his hand and he stabbed Ashok. ( 16 ) P. W. 3 has not stuck to the above version in his deposition in thecourt. P. W. 3 in codrt docs not state to have seen the accused coming with anopen chhuri in his hand and giving a blow with it to Ashok. P. Wj3 insteadhas stated that he was told by Ashok that Krishan Kumar had stabbed himwith a chhuri. P. W. 3 in codrt docs not state to have seen the accused coming with anopen chhuri in his hand and giving a blow with it to Ashok. P. Wj3 insteadhas stated that he was told by Ashok that Krishan Kumar had stabbed himwith a chhuri. The above is an improvement and cannot be relied upon. We are of the view that P. W. 3 in court has intentionally gone back on thestatement made before the police regarding his having seen the accused givingthe knife blow to the deceased. This he has obviously done to favour theaccused. ( 17 ) P. W. 4 gave evidence that after he and Ravinder had intervenedand separated the deceased and the accused, he went away to his house. This part of the statement of P. W. 4 is not true and has been made to helpthe accused. P. W. 4 was declared hostile and was cross-examined by thepublic Prosecutor. He was confronted with his statement made before thepolice where he had stated that he saw Krishan Kumar coming down thestairs with an open knife in his hand and thereafter immediately he gave aknife blow in the left waist below the arm of Ashok Kumar. Inspite of thefact that Rajesh was declared hostile we are of the view that his testimonyregarding the first part of the occurrence can be accepted without any hesitation. ( 18 ) WE shall next deal with the dying declaration said to have beenmade by the deceased before P. W. 12 Dr. Hariharan and constable Rameshchander. The occurrence took place at about 6 p m. The deceased wasremoved to Safdarjung hospital by P. W 3 and the medico-legal report Ex. PW 12/a shows that Ashok Kumar was admitted in the hospital at 6. 15 p. m. P. W. 12 who prepared the above medico legal report gave evidence thatashok had told him that he had been stabbed by Krishan resident of Quarter540, Sector 12. P. W. 7 constable Ramesh Ghander was on duty at thesafdarjung hospital and according to P. W. 7 the above dying declaration wasmade by Ashok to the doctor in his presence. P. W 7 infarmed on telephonethe policepost, R. K. Puram regarding the admission of Ashok Kumar in thehospital in an injured condition. P. W 8 who had received the telephonicmessage made an entry Ex. P. W 7 infarmed on telephonethe policepost, R. K. Puram regarding the admission of Ashok Kumar in thehospital in an injured condition. P. W 8 who had received the telephonicmessage made an entry Ex. Public Witness 8/a in the daily diary regarding the reportreceived from P. W. 7. The time of the receipt of the report given in theentry Ex. Public Witness 8/a is 6 25 p. m. The entry records that the constable onduty had informed that Krishan resident of house No. 540 Sector 12 hadcaused the knife injuries. ( 19 ) P. W. 7 gave evidence that Ashok had told the doctor in hispresence that he was stabbed by Krishan resident of 540 Sector 12 R. K. Puram and he had conveyed the said information on telephone to the policepost R. K. Puram. P. W. 8 corroborates the above statement of P. W. 7. ( 20 ) WE have carefully perused the statements of P. Ws-7 and 12 andwe find no reason to disbelieve their testimony that Ashok had in the hospitaltold the doctor that the was injured by Krishan, resident of Quarter 540r. K. Puram. Nothing has been brought out in the cross-examination ofp. W. 12 that he had any motive to make a false statement against the accused. ( 21 ) THE occurrence took place at 6 p. m. , the deceased was admittedin the hospital at 6. 15 p. m. P. W. 7 informed the police post R. K. Puram ofthe admission of Ashok at 6. 25 pm. There was no time lag between theoccurrence and the report Ex. Public Witness 8/a within which any false story could beinvented. ( 22 ) PW. 19 Sub-Inspector Ubraj Singh on receipt of the report ofthe occurrence had gone to Safdarjung hospital where he had recorded thestatement Ex. Public Witness 3/a of Ravinder Singh. The said statement was recordedround-about 7 p. m. P. W. 3 in the first report had named Krishan Kumar asthe assailant of Ashok. Again, there was hardly any time lapse between theoccurrence and the first report within which any version could be cooked up. The naming of the accused as the assailant in the first report strongly corroboratesthe dying declaration. ( 23 ) ON a careful perusal of the record we have no hesitation inagreeing with the Additional Sessions Judge that it was the accused who hadcommitted the crime. The naming of the accused as the assailant in the first report strongly corroboratesthe dying declaration. ( 23 ) ON a careful perusal of the record we have no hesitation inagreeing with the Additional Sessions Judge that it was the accused who hadcommitted the crime. ( 24 ) THE crucial question that arises for determination is what offencehas been committed by the accused. There can be no manner of doubt thatthe occurrence took place without premeditation on a sudden quarrel in asudden fight and in the heat of passion. The evidence is that the deceasedwas an unemployed youth. P. W. 19 has given evidence that the deceasedashok was a ruffian type and his photograph was hung up at the police postboard. The Investigating Officer admitted that photographs of only thosepersons are displayed at the police station and the police post who are previous convicts or whose names appear in register b . P. W. 6 Krishan Mehtaan uncle of the deceased in cross-examination deposed that he knew that thephoto of Ashok Kumar deceased was displayed outside the police station R. K. Puram. ( 25 ) WE have no evidence regarding the kind of friendship the accusedhad with the deceased and what was the purpose of the visit of the deceasedto the house of the accused on that fateful evening. ( 26 ) BOTH P. Ws. 3 and 4 have testified that the accused had protestedto the deceased on the manner of his calling for him and on that there was aquarrel between the accused and the deceased and they exchanged blows. There is no clear evidence on the record as to how the accused came topossess the knife. No doubt, P. W. 3 had in the first report stated that theaccused had gone upstairs and brought the knife but in court he had notstuck to this version. A first information report by itself is not substantiveevidence. It can only be used to corroborate or contradict the maker of it. The benefit of doubt in this respect must go to the accused. ( 27 ) ONE of the essential ingredients for the applicability of Exception4 to Section 300 of the Indian Penal Code is that the offender must not havetaken undue advantage or acted in a cruel or unusual manner. The benefit of doubt in this respect must go to the accused. ( 27 ) ONE of the essential ingredients for the applicability of Exception4 to Section 300 of the Indian Penal Code is that the offender must not havetaken undue advantage or acted in a cruel or unusual manner. On the factsand in the circumstances of this case we are inclined to hold that the accused had not taken any undue advantage or acted in a cruel or unusualmanner. ( 28 ) IN the above view we hold that Exception 4 to Section 300 of theindian Penal Code would be applicable and the accused would be guilty of culpable homicide not amounting to murder. We would, accordingly, setaside the conviction of the appellant under Section 302 of the Indian Penalcode and instead convict him under First part of Section 304 of the Indianpenal Code and sentence him to rigorous imprisonment for 5 years and to afine of Rs. 500. 00 and in default of payment of fine to undergo rigorous imprisonment for 6 months. The appeal is allowed to the extent indicatedabove.