S. D. PANDIT ( 1 class=pno> N> 1 ) RAM Singh son of Ved Ram resident of House No. J-1439, Jahangirpuri, Delhi, stands convicted by an Additional Sessions Judge of Delhi in Sessions case No. 104 of 1986 for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life. ( 2 ) VICTIM Gopal Singh is the brother of first informant Shyam Singh. Victim gopal Singh was residing in House No. J-1434 whereas first informant Shyam Singh is residing in House No. J-1435. Appellant Ram Singh is their neighbour and he was residing in house No. J-1439 alongwith two brothers, sisters and other relations. The incident in question has taken place on the night between 27. 11. 1985 and 28. 11. 1985. Public Witness/. 1 Om Shankar is the tenant of deceased Gopal Singh. On that night Public Witness/1 Om Shankar wanted to go out of Delhi by train in the night. Gopal Singh had, therefore, borrowed a three-wheeler auto rickshaw from a friend of his and had parked the same at about 10. 00 pm. in front of his house. He had brought the said three-wheeler auto rickshaw in order to reach Public Witness/1 Om Shankarat New Delhi railway station. A few minutes after the three-wheeler auto rickshaw was parked by Gopal Singh in front of his house appellantam Singh came there and started the auto rikshaw in order to take it away. On hearing the sound of starting of the auto rickshaw Gopal Singh came out of the house and told appellant Ram Singh that he should not take it away as he had brought the same in order to reach Om Shankar at New Delhi railway station as he was to catch a train. But, appellant Ram Singh insisted that he would take away the said three-wheeler for some time and be would bring it back but Gopal Singh was not permitting him to do so. Due to this some fight and struggle took place between appellant Ram Singh and deceased Gopal Singh. Thereafter, appellant s two brothers Mahinder Singh and Rajinder Singh joined appellant and all the three had a scufle with Gopal Singh. Due to this some fight and struggle took place between appellant Ram Singh and deceased Gopal Singh. Thereafter, appellant s two brothers Mahinder Singh and Rajinder Singh joined appellant and all the three had a scufle with Gopal Singh. On seeing this Public Witness/1 Om Shankar and Public Witness/ 2 Shyam Singh, who were witnessing the incident from their galleries (Chhaja), came down and found that Gopal Singh was caught by Mahinder Singh and Rajindersingh and Ram Singh took out a knife from his pocket and gave blows to Gopal Singh. He had also threatened Shyam Singh and Om Shankar that if they intervened they would also be killed. Therefore, both Om Shankar and Shyam Singh, Public Witness/1 and Public Witness/ 2 respectively, did not intervene. As a result of the blows inflicted on him Gopal Singh fell down and, thereafter appellant and his two brothers Mahinder Singh and Rajinder Singh left him and went away. ( 3 ) AFTER the appellant and his two brothers, Mahinder Singh and Rajinder had left, Public Witness/1 Om Shankar and Public Witness/2 Shyam Singh came forward and found Gopal. Singh lying in a pool of blood with injuries on his person. Om Shankar advised Shyam Singh to goto the police station and lodge a complaint. Public Witness/7 Constable Rajbir Singh, Public Witness/15asi Sukhbir Singh, Police H. C. Santokh Singh, who had gone to the e Block, Jahangirpuri, in order to attend an earlier call, were coming back to the police station and on the way they met Public Witness/2 Shyam Singh. The police officials came to the spot and found Gopal Singh lying there in injured condition. They had also found appellant Ram Singh and his two brothers in the police out-post and they had some injuries. They took injured Gopal Singh, appellant and histwo brothers to Hindu Rao Hospital alongwith Public Witness/2 Shyam Singh. ( 4 ) PUBLIC Witness/7 Dr. V. K: Goel who was on emergency duty found Gopal Singh bleeding profusely and he had also noticed six injuries on his person on the front side and as he was profusely bleeding he did not carry any further detailed examination but admitted him in the Emergency Ward and also sent for the Surgeon on duty. He had also examined appellant and his two brothers. He had found two injuries on the appellant and one injury on each of his two brothers. He had also examined appellant and his two brothers. He had found two injuries on the appellant and one injury on each of his two brothers. He treated the said injuries on the persons of appellant and histwo brothers without admitting them in the hospital. ( 5 ) AFTER Gopal Singh and the original three accused were taken to the hospital Public Witness/15asi Sukhbirsingh recorded the first information report of Public Witness/2 Shyam Singh and forwarded the same to the Police Station Jahangirpuri. On the strength of that first information report the crime was registered as Crime No. 958/85. Public Witness/15 ASI Sukhbir Singh then sent all the three accused, i. e. the appellant and histwo brothers Mahinder Singh and Rajinder Singh to the Police Station and himself returned to the place of incident alongwith Shyam Singh. He prepared the panchnama of the scene of offence and also recorded the statement of Public Witness/1 Om Shankar. At the time of preparing the panchnama he had collected blood stained earth and sample earth from the place of incident and then he went to the police station. When he questioned the appellant the appellant made a statement leading to the discovery of the knife used by him and at his instance the knife was recovered from his house. ( 6 ) AFTER Gopal Singh was admitted in the hospital he was operated upon and even though all the medical efforts were made to save him he succumbed to the injuries sustained by him on 1. 12. 1985. Thereafter, inquest was prepared and the dead body was forwarded for carrying out the post mortem. Post-mortem on the body of deceased Gopal Singh was carried out by Public Witness/9 Dr. L. T. Ramani. ( 7 ) GOPAL Singh was admitted in the hospital in the night between 27-28. 11. 1985 and was examined by Dr. V. K. Goel. The clothes which were on the person of Gopal Singh had blood stains as well as cut marks and the Doctor on duty had sealed them in a packet and handed over the same to the police. After the recovery of the knife the said knife was shown to Dr. V. K. Goel and he had found that the injuries on the reason of deceased Gopal Singh were possible by the said knife. After the recovery of the knife the said knife was shown to Dr. V. K. Goel and he had found that the injuries on the reason of deceased Gopal Singh were possible by the said knife. The said knife and the clothes which were on the person of Gopal Singh at the time of his admission in the hospital were forwarded to the Central Forensic Science Laboratory, Delhi and on analysis it was found that the knife was having the blood of the same blood group b which was found on the clothes of the deceased. After completion of necessary investigtion appellant and his two brothers were charge-sheeted by the police of Jahangirpuri police station. ( 8 ) CHARGE was framed against the appellant and his two brothers for the offence punishable under Section 302 read with Section 34 of Indian Penal Code by the learned Additional Sessions Judge and as all the three accused had pleaded not guilty to the charge the learned Additional Sessions Judge proceeded with the trial. ( 9 ) IN order to prove its case the prosecution had examined in all 18 witnesses. Out of them Public Witness/1 Om Shankar and Public Witness/2 Shyam Singh are eye witnesses. The trial court believed the evidence of these eye witnesses and also found that their evidence was corroborated by medical and other circumstantial evidence on record. However, he found that there was no evidence to hold that original accused Nos 1 and 3, viz. Mahinder Singh and Rajinder Singh were sharing the common intention alongwith the present appellant to kill deceased Gopal Singh beyond reasonable doubt. He, therefore, gave benefit of doubt to both accused Nos. 1 and3,viz. Mahinder Singh and Rajinder Singh and held accused No. 2 Ram Singh, appellant before us, guilty of the offence punishable under Section 302 of the Indian Penal Code and sentenced him as stated earlier. ( 10 ) IT is urged on behalf of the appellant that both Public Witness/1 and Public Witness/2 Shyam Singh have not at all explained the injuries sustained by the appellant Ram Singh as well as his two brothers Mahinder Singh and Rajinder Singh and. therefore, in these circumstances, their evidence ought not to have been accepted. ( 10 ) IT is urged on behalf of the appellant that both Public Witness/1 and Public Witness/2 Shyam Singh have not at all explained the injuries sustained by the appellant Ram Singh as well as his two brothers Mahinder Singh and Rajinder Singh and. therefore, in these circumstances, their evidence ought not to have been accepted. He further contended that it has come in the cross-examination of both of them that there are number of houses around the place of incident and in spite of this no independent witness has come forth to support and corroborate the version of these two witnesses. He also contended that the appellant and his two brothers had first gone to the police post and there the appellant had lodged a complaint about he and his two brothers having been assaulted by deceased Gopal Singh and his brothers but no cognizance of the said complaint was taken and no investigation was carried out in respect of that claim of the appellant and, therefore, in these circumstances, the prosecution case could not be believed and accepted beyond reasonable doubt. Thus, in these circumstances, learned counsel for the appellant urged before us that the appellant should be given benefit of doubt and acquitted of the offence for which he is found guilty. In the alternative he contended before us that the incident in question had taken place all of a sudden and without any premediation and the act committed by the appellant could at the most fall within the purview of Section 304 Part II and, therefore, he could at the most be held guilty of the offence punishable under Section 304 Part II. ( 11 ) AS against this learned counsel forthe State Shri N. K. Handa contended that there is no reason to discard the evidence of the two eye witnesses and the offence for which the appellant is found guilty is squarely proved against him and there are no circumstances to either give him benefit of doubt or to hold that he has committed a lesser offence under Section 304, Indian Penal Code. ( 12 ) IF the evidence of Public Witness/1 Om Shankar and Public Witness/2 Shyam singh is considered then it would be quite clear that on that fateful night between 27-28. 11. 1985 deceased Gopal Singh had brought a three wheeler auto rickshaw to his house at abut 10. ( 12 ) IF the evidence of Public Witness/1 Om Shankar and Public Witness/2 Shyam singh is considered then it would be quite clear that on that fateful night between 27-28. 11. 1985 deceased Gopal Singh had brought a three wheeler auto rickshaw to his house at abut 10. 00 pm. He had brought that auto rickshaw as he wanted to reach Om Shankar, Public Witness/1, at the New Delhi railway station. After he had parked the said three wheeler auto rickshaw in front of his house he had gone and, thereafter, the present appellant came out of his house and started the said rickshaw and, therefore, on hearing the sound of the auto rickshaw-deceased Gopal Singh came out of his house and went in front of the rickshaw and then quarrel between the two took place. If the cross-examination of both these witnesses is taken into consideration then it would be quite clear that that part of their evidence is not at all challenged or disputed in the cross-examination. There is also no suggestion to them that that auto rickshaw was not brought by deceased Gopal Singh and that the said rickshaw was brought by appellant Ram Singh as has been claimed by appellant in his statement under Section 313, There is not even a suggestion to the Investigating Officer that the said auto rickshaw was not brought by Gopal Singh but that it was brought by appellant Ram Singh. The prosecution had examined the owner of the said rickshaw Public Witness/11 Vijay Kumar. No doubt he turned hostile as he happened to be the next door neighbour of the appellant and his brother and he is also the tenant of the sister of the appellant, as has been revealed by him in the examination-in-chief. It is very pertinent to note that there is no suggestion in his cross-examination that the said auto rickshaw was. in fact, taken from him on that night by appellant Ram Singh. Therefore, in these circumstances, the mere vague claim made by the appellant in his statement under Section 313 that the said auto rickshaw was brought by him could not be believed and accepted. Thus, it is quite obvious that the said auto rickshaw was brought by deceased Gopal Singh in order to reach Public Witness/1 Om Shankar at New Delhi railway station on night between 27-28. 11. 1985. Thus, it is quite obvious that the said auto rickshaw was brought by deceased Gopal Singh in order to reach Public Witness/1 Om Shankar at New Delhi railway station on night between 27-28. 11. 1985. ( 13 ) FROM the evidence of Public Witness/7 Constable Raj Singh, Public Witness/15 ASI Sukhbir singh as well as Public Witness/1 Om Shankar and Public Witness/2 Shyam Singh it is quite clear that Gopal Singh was admitted on that night in Hindu Rao Hospital with injuries on his person. But at that time he was not fully conscious and was not in a position to make a statement. But, subsequently, his statement has been recorded by Public Witness/15 ASI Sukhbirsinghon28. 11. 1985whichisproducedatex. 15c. Admittedly, Gopal Singh has died on 1. 12. 1985 on account of injuries sustained by him on the night between 27-28. 11. 1985. Therefore, the statement made by him comes within the purview of Section 32 of the Evidence Act as a dying declaration. It is settled law that merely because the said statement is recorded by the police officer it could not be discarded or thrown away. If the said statement at Exhibit 15-C is read then it would be quite clear that the said statement corroborates the testimony of the two eye witnesses. ( 14 ) GOPAL Singh in injured condition was rushed to Hindu Rao Hospital and he was initially examined by Public Witness/7a Dr. V. K. Goel. If the evidence of Dr. V. K. Goel is seen then it would be quite clear that at that time Gopal Singh was profusely bleeding. After finding six injuries on the person of Gopal Singh which were profusely bleeding he transferred him to Emergency Ward and called for surgeon. Therefore, Dr. V. K. Goel, Public Witness/7a had not thoroughly examined him but subsequently in the ward he was examined by one Dr. Raj Kumar and Dr. Raj Kumar had recorded the injuries found by him at Exhibit 18a. The said injuries, noted by him in the case summary, are brought on record through Public Witness/18 V. K. Sharma, Record Clerk of Hindu Rao Hospital. Dr. Raj Kumar had left the job and as per the deposition of V. K. Sharma, Public Witness/18 the whereabouts of the said Dr. Raj Kumar were not known. The said injuries, noted by him in the case summary, are brought on record through Public Witness/18 V. K. Sharma, Record Clerk of Hindu Rao Hospital. Dr. Raj Kumar had left the job and as per the deposition of V. K. Sharma, Public Witness/18 the whereabouts of the said Dr. Raj Kumar were not known. Public Witness/18 V. K. Sharma had deposed that he was very well knowing the handwriting as well as the signature of Dr. Raj Kumar and had seen him writing and signing on many occasions. That evidence of V. K. Sharma is not at all challenged or disputed in his cross-examination and the case summary at Ex. 18a shows that Dr. Raj Kumar had found 12 incised wounds on the person of Gopal Singh. Admittedly, Gopal Singh had succumbed to the injuries sustained by him on 1. 12. 1985 and, thereafter, post-mortem on his dead body was carried out by Public Witness/9 Dr. L. T. Ramani. At the time of post-mortem Dr. L. T. Ramani had found in all 20 injuries on his person and he has described them as under: 1. Small abrasions partly healed but scattered on the right side of forehead and on the frontal area. 2. Laceration 1/2 inch x 1/4 inch x scalp dead on the right parital eminoaes. 3, Laceration 3/4" x 2/10" x 2/10" on the left parital area. 4. Laceration 1" x 1/4" x scalp dead over vertex region. Margins of all these laceration were irregular and wounds showed early healing. 5. Stitched wounds 3/4" long on the right side front of chest 1 - 1/2" above the right nipple. Injury was present transversly. 6. Stitched wound 1" long transversely placed lateral to the right nipple. 7. Stitched wound 1" long on the right side chest wall transversely present in the mid auxiliary line 5" below the armpit. 8. Stitched wound 1-1/4" long transverse on the middle of sternum with an abrasions of 2" x 2" area around it. 9. Stitched wound 6" long vertically placed between xiphid and umblicus (operational injury ). 10. Operational drainage wound on the right limber area of abdomen. 11. Abrasions partly healed up on the right shoulder size 2" x 1". 12. Incised wound 1" x 1/2" x muscle deep on the back of left thigh lower part. 13. Incised would 1"x1/2"x muscle deep on the back of left leg. 14. 10. Operational drainage wound on the right limber area of abdomen. 11. Abrasions partly healed up on the right shoulder size 2" x 1". 12. Incised wound 1" x 1/2" x muscle deep on the back of left thigh lower part. 13. Incised would 1"x1/2"x muscle deep on the back of left leg. 14. Incised wound 112" x 1 /4" x muscle deep on the back of left forearm, distal hand. 15. Stitched wound 1" long vertical on the front of the left thigh lower third medial aspect. 16. Linear abrasion 2" long transversely placed on the left coastal margin. Injury was partly healed with brown scab. 17. Stitched wound 2" long on the right index finger along the axis of the finger. 18. Partly healed up abrasions scattered on the right wrist, forearm and dorsal of hand. 19. Stitched wound 1" long vertical on the outer aspect of right knee. 20. Superficial incised wound 1-1/2" long x 1/2" x skin deep vertically present on the outer aspect of right ankle. If the above description of the 20 injuries is seen then it would be quite clear that out of those 20 injuries four are linear abberations; three are lacerations and one is surgical draining wound. Thus, the 12 injuries found by Dr. L. T. Ramani are corresponding to the 12 injuries noted by Dr. Raj Kumar in Ex. 18a. The linear abbration are quite possible on account of the struggle which had taken place as well as because of the fall on the ground because of the injuries. The existence of 12 incised wounds on the person of Gopal Singh gives the necessary support and corroboration to the version of the two eye witnesses Public Witness/1 Om Shankar and Public Witness/ 2 Shyam Singh. ( 15 ) THE evidence of Public Witness/1 Om Shankar and Public Witness/15 ASI Sukhbir Singh clearly shows that appellant made a statement leading to the discovery of the dagger. Dagger recovered at the instance of the appellant was having bloodstains. The said dagger was sent to C. F. S. L. and the report of the C. F. S. L. at Ex. Public Witness. 13/e shows that the said dagger was having the blood of the blood group of the deceased. Dagger recovered at the instance of the appellant was having bloodstains. The said dagger was sent to C. F. S. L. and the report of the C. F. S. L. at Ex. Public Witness. 13/e shows that the said dagger was having the blood of the blood group of the deceased. This evidence of dagger recovered at the instance of the appellant having the blood stains of the deceased gives support and corroboration to the evidence of two eye witnesses, viz. Public Witness/1 Om Shankar and Public Witness/2 Shyam Singh. ( 16 ) LEARNED counsel for the appellant vehemently urged before us that both the eye witnesses have not at all explained the injuries on the person of the appellant as well as his two brothers who were acquitted. But, if the cross-examination of these witnesses is seen then it would be quite clear that there is no specific cross- examination of these witnesses regarding the injuries on the person of the accused. Apart from it, Public Witness/1 Om Shankar has clearly stated that there was marra-marri maar-peet between the accused and the deceased after the accused had refused to leave the auto rickshaw and not to take it away. Even if the dying declaration of the deceased at Ex. 15c is seen then it would be quite clearthat in the said dying declaration deceased Gopal Singh has admitted of having assaulted the appellant and his brothers when they were attacking him and in the said statement he had also admitted that he had caused some injuries to them. The injuries which were found on the person of the appellant and his two brothers are described by Dr. V. K. Goel, Public Witness/7a as under: RAM Singh, Mohinder Singh and Rajinder Singh were having injuries for which they were given proper treatment. Ram Singh ws having a CLW 2" long on the forehead just above the hairline left side and was also having a abrasion 2" x 2" near the left knee joint. By CLW I mean he was having clean lacerated wound. Mohinder - Singh was also having a clean lacerated wound 2" long on the forehead left side. Rajinder Singh was having haemotoma around the right eye and was having bub conjuctival haemorrhage. All these injuries on three persons were caused by blunt object. By CLW I mean he was having clean lacerated wound. Mohinder - Singh was also having a clean lacerated wound 2" long on the forehead left side. Rajinder Singh was having haemotoma around the right eye and was having bub conjuctival haemorrhage. All these injuries on three persons were caused by blunt object. Rajinder Kumar was referred to surgeon and his injuries were kept under observation whereas Ram Singh and Mohinder Singh were given treatment by me and were discharged. They were directed to attend the surgicalopd for further treatment. "if the above description of the injuries as given by Public Witness/7a Dr. V. K. Goel is considered it would be quite clear that the injuries sustained by the appellant and his two brothers, Mahinder Singh and Rajinder Singh, were not incised wounds and they were not also of serious nature or grievous hurts. We have already mentioned above that Public Witness/1 Om Shankar and deceased Gopal Singh have clearly stated that there was marra-marri and in the said marra-marri injuries were caused to the appellant and his two brothers. In the case of Bhuvan Vs. State of Maharashtra { air 1974 SC 21 } (he following principles are laid down: "there is no hard and fast rule that simply because the prosecution witnesses did not explain the injuries on the person of the accused their entire evidence should be dismissed. "the same view is taken in the recent decision of State of U. P. Vs. Mukund Singh and Ors. {1994[1] JT 109} by laying down the following principle: "merely on the ground that the prosecution witnesses have not explained the injuries on the accused the High Court ought not to have rejected the evidence outright. " ( 17 ) THEREFORE, in the above circumstances, we are unable to hold that the evidence of two eye witnesses should be rejected as they have not given detailed explanation regarding the injuries on the person of the appellant and his two brothers. Presence of injuries on the person of the appellant and his two brothers further supports the prosecution case, as has been held by the Supreme Court in the case of Bhagwan Dass Vs. State of Rajasthan [ air 1974 SC 1699 ]. Presence of injuries on the person of the appellant and his two brothers further supports the prosecution case, as has been held by the Supreme Court in the case of Bhagwan Dass Vs. State of Rajasthan [ air 1974 SC 1699 ]. ( 18 ) THE other ground of attack by learned for the appellant in support of his contention that the evidence of these two eye witnesses should not be accepted is the non-examination of any independent witness. No doubt it has been asked in the cross-examination of both the eye witnesses about the existence of many houses around the place of incident and both the witnesses have clearly admitted that there are many houses around the place of incident, but it must be remembered that the incident in question has taken place late at night; i. e. after 10. 15 pm. It was also cool winter. Therefore, if the time of incident and winter season are taken into consideration the higher probablity would be of non-availability of any independent witness around the place of occurrence as people must have gone to sleep. Apart from this; it has not been brought out in the cross-examination of the Investigating Officer that he had recorded the statement of certain neighbours about the incident in question. The question of non examining independent person arises only in case the Investigating Officer had recorded thestatement of a witness under Section 161 and such a witness is withheld. As there is no material on record to show that any independent witnesses were available at the time of incident and that the statements of any such witnesses were recorded by the Investigating Officer, so there is no question of drawing adverse inference against the prosecution. It must be also further mentioned that in these days the neighbours are very reluctant to come forward to give evidence in support of the prosecution case. It is general experience that the witnesses in the neighbourhood try to withdraw themselves as far away as possible and not to come forward to give evidence because they feel that even the commission of the criminal offence is a private issue between the assailant and the victim and they do not owe any social duty to help the cause of justice. This tendency of the citizens is aptly described by the apex Court in the case of Appa Bhai and another Vs. This tendency of the citizens is aptly described by the apex Court in the case of Appa Bhai and another Vs. State of Gujarat[ air 1988 SC 696 ] by laying down the following principles: "it is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place atthe bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. 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 spectrum or the prosecution versionand then seach for the nugget of truth with due regard to probability if any, suggeste by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witness at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. " ( 19 ) THEREFORE, in view of all the above considerations we do not have any reason to discard the testimony of the two eye witnesses for holding that the appellant had assaulted deceased Gopal Singh and when he had attacked Gopal Singh he was helped by his two brothers viz. Mahinder Singh and Rajinder Singh. ( 20 ) WE have already described the 20 injuries which were found by Dr. L. T. Ramani at the time of conducting the post-mortem on the body of deceased Gopal Singh. Dr. L. T. Ramani had clearly stated that all the injuries found by him were antimortem and injuries Nos. Mahinder Singh and Rajinder Singh. ( 20 ) WE have already described the 20 injuries which were found by Dr. L. T. Ramani at the time of conducting the post-mortem on the body of deceased Gopal Singh. Dr. L. T. Ramani had clearly stated that all the injuries found by him were antimortem and injuries Nos. 1 to4and 11 were caused by blunt weapon and all the other injuries were caused by a sharp weapon. He has further deposed that injuries at serial Nos. 7 and 8 were individually sufficient to cause death in the ordinary course of nature. He had found that the injury No. 7 had also resulted in cut injury to the liver. The evidence of Dr. L. T. Ramani is not at all challenged or disputed in his cross- examination. The death of deceased Gopal Singh was due to shock on account of injuries sustained by him. therefore, in these circumstances, it is quite obvious that deceased Gopal Singh had met with homicidal death at the hands of the appellant. ( 21 ) THOUGH the Trial Court has accepted the evidence of both the eye witnesses and the prosecution case that original accused No. 1 Mahinder Singh and accused No. 3 Rajinder Singh had caught hold of Gopal Singh and thereafter appellant had given knife blows on him but he has come to an erroneous conclusion that the original accused Nos. 1 and 3 were not guilty of the offence punishable under Section 302 of the Indian Penal Code read with Section 34 but, unfortunately, no appeal against the order of their acquittal is preferred by the State. As the original accused Nos. 1 and 3 are acquitted, it has been urged by the learned counsel for the appellant that in the circumstances of the case appellant ought not to have been held guilty for the offence punishable under Section 302 of the Indian Penal Code. According to him the case of the appellant falls within the four comers of Sectrion 300 Exception 4. According J, to him the incident in question had taken place all of a sudden and there was no pre- determined attack on the deceased and, therefore, the appellant could not be held guilty of culpable homicide amounting to murder. In support of that contention he has cited before us the case of Surinder Kumar Vs. According J, to him the incident in question had taken place all of a sudden and there was no pre- determined attack on the deceased and, therefore, the appellant could not be held guilty of culpable homicide amounting to murder. In support of that contention he has cited before us the case of Surinder Kumar Vs. Union Territory of Chandigarh [ air 1989 SC 1094 ]. In order to consider and appreciate his contention, it is necessary to see the provisions of Exception 4 to Section 300 of the Indian Penal Code, which reads as under: "exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender s having taken undue advantage or acted in a cruel or unusual manner. Explanation.- It is immaterial in such cases which party offers provocation or commits the first assault. " ( 22 ) IN the instant case, as already noted above, there were 12 incised wounds on the person of deceased Gopal Singh. Asper the evidence of both the eye witnesses Gopal Singh was caught hold of by the two brothers of the appellant and, thereafter, the appellant had inflicted those 12 incised wounds on him. This act of causing 12 incised wounds after he was caught hold of by his two brothers would definitely amount to taking undue advantage and acting in a very cruel manner. It must be further mentioned here that the appellant himself had gone and tried to take away the auto rickshaw of the deceased and when he was prevented from doing so the incident in question had occurred. In view of the dying declaration of deceased as well as the evidence of Public Witness/7a, Dr. Goel, it is quite clear that there were two injuries on the person of the present appellant and one injury each on the two brothers of the appellant. But all those injuries were minor injuries and they were caused by the deceased in exercise of his right of private defence of property and person. Therefore, it could not be said that the deceased had given provocation to the appellant by his act. But all those injuries were minor injuries and they were caused by the deceased in exercise of his right of private defence of property and person. Therefore, it could not be said that the deceased had given provocation to the appellant by his act. The conduct of the accused of inflicting 12 incised wounds on the deceased after deceased was caught hold of by his two brothers would definitely amount to a cruel act and an act of taking undue advantage. Therefore, in view of the circumstances of the case before us we are of the opinion that the act committed by the appellant does not fall within the purview of Exception 4 to Section 300 of the Indian Penal Code. Therefore, on the facts the case cited by the learned counsel for the appellant Surinder Kumar Vs. Union Territory of Chandigarh (Supra), is not applicable. ( 23 ) THUS, we hold that the trial court has rightly held the appellant guilty of the offence punishable under Section 302 of2the Indian Penal Code and, consequently, the appeal preferred by him deserves to be dismissed by confirming the order of conviction as well as sentence. ( 24 ) THUS, the appeal is dismissed. The order of conviction and sentence passed against the appellant is confirmed. Appellant be informed accordingly through the jail authorities.