JUDGMENT 1. - The above two appeals arise from the judgment and order dated, June 29, 1994 passed by the learned Sessions Judge, Baran in Sessions Case No. 62/93, whereby the appellant Nagendra Kumar was convicted under Section 302 IPC and the appellant Arvind Kumar under Section 302/34 IPC and both sentenced to suffer imprisonment for life and to pay a fine of Rs. 100/-. In default of payment of fine, to undergo further rigorous imprisonment for one month. The appellant Arvind Kumar was further convicted under Section 4/25 of the Arms Act and sentenced to one year rigorous imprisonment. The substantive sentences of Arvind Kumar were ordered to run concurrently. 2. The appellants were tried for an incident which had occurred at about 8.30 p.m. on 17.793 in Chaumukha Bazar near the temple of 'Sanwala Ji'. The charge against the appellant Nagendra Kumar was that he inflicted a blow with a dagger (Katar) on the abdomen of the deceased Dharmendra Sankhia with an intention to commit his murder. He was also charged under Section 4/25 of the Arms Act for possessing dagger (Katar) without a licence. The charge against the appellant Arvind Kumar was that he caught hands of the deceased Dharmendra and thus, facilitated in causing a below on his abdomen by the appellant, Nagendra Kumar. He too, wacharged under Section 4/25 of the Arms Act for possessing dagger without a valid licence. 3. After the incident, the injured Dharmendra was immediately taken to Government Hospital, Baran where he was admitted at 8.40 p.m. A report of the incident was made by P.W. 3-Rejendra Kumar at 11.30 p.m. in the same night at Police Station, Kotwali, Baran. The prosecution case as unfolded from the report is that the appellant, Nagendra Kumar accompanied by his two associates inflicted a solitary blow with a `Katar' on the abdomen of Dharmendra Sankhla, the younger brother of the informant at about 8.30 p.m. on 11.7.93 near the hospital of Dr. Chandsi and the temple of `Sanwala Ji'. As per report, the incident was witnessed by Naveen Jain, Anil Khatri, Rajendra Bhoomalia and the informant Rajendra Sankhla who intervened and rescued the injured. 4. PW 13-Dr. Chandsi and the temple of `Sanwala Ji'. As per report, the incident was witnessed by Naveen Jain, Anil Khatri, Rajendra Bhoomalia and the informant Rajendra Sankhla who intervened and rescued the injured. 4. PW 13-Dr. Rajendra Kumar Soni examined the injured Dharmendra Sankhla at 10.50 p.m. on 11.7.93 and he found to following injury on his person- "Stab wound (incised) 3x1 cmx deep to the abdominal cavity on left hypochondriacs of the abdominal wail meeting clavicular region just below coastal margin. The duration of the injury was 1 to 4 hours." Immediately after admission in the hospital, injured Dharmendra Sankhla was taken in the operation room where he was operated by Dr. Arjun Singh Rajawat (PW 14). The operation continued from 9 p.m. to 12 p.m. The internal condition of the abdomen has been narrated as per portion C to D of operation - note (Ex.P. 10) as per under : "under General anesthesia, on abdomen opened by left paramedian incision. As soon the abdomen opened, a lot of blood and fluid came out from the wound. On exploration, there was oblique tear on the fendum of the stomach measuring nearly 4" in length and it was deep in the cavity of the stomach, clamps applied on both sides and wound tear closed in two layers with silk. On further exploration, (here was no injury to lever, spline, gut and mesentery. Peritonial cavity wiped out and wound closed in layers after putting corrigutated drain tube. Three units of blood given in O.T." 5. Injured Dharmendra Sankhla succumbed to his injuries at 7.45 a.m. on 12.7.93. PW 10-Dr. Rajmal Chittora, Medical Jurist, Government Hospital, Baran, conducted autopsy on his dead body at 9.20 a.m. and found following injuries (i) stitched wound 3 cm over left hypochondrium region. (ii) Stitched wound 21 cm long vertical left parimedian region. (iii) Corrugated rubber tube coming from injury No.1. On dissection of the body, the doctor found internal organs, namely, pleura, lungs, pericardium and heart normal. He also found stitched wound over fendus measuring 4" in length. 150-200 cc fluid was present in stomach when stomach opened. Foul smell was there. Small intestine distended. In the opinion of the Doctor, the cause of death was due to visceral injury to stomach and shock. The injury to stomach was opined to be sufficient to cause death in the ordinary course of nature. 150-200 cc fluid was present in stomach when stomach opened. Foul smell was there. Small intestine distended. In the opinion of the Doctor, the cause of death was due to visceral injury to stomach and shock. The injury to stomach was opined to be sufficient to cause death in the ordinary course of nature. The post-mortem report is Ex.P. 8 and it was proved by Dr. Rajmal Chittora. 6. During trial, prosecution examined 20 witnesses which include eye-witnesses, PW 3-Rajendra Kumar, PW 4-Nand Kishore, PW 5-Suresh Chand, PW 6-Anil Khatri, PW 9--Rajendra Bhomalia and PW 12-Chandra Shekhar. The learned trial Judge, placing reliance on the evidence of eye-witnesses and other corroborative evidence, convicted sentenced-the appellants as aforesaid. 7. Mr. Manoj Choudhary, learned counsel appearing for the appellant Nagendra Kumar, after attempting to argue the case on merits, decided not to challenge the finding of guilt recorded against his client by the lower Court in view of over-whelming evidence on record for proving his guilt. The main thrust of his argument is with regard to the nature of offence committed by the appellant and the sentence to be awarded for this. The learned counsel contended that the quarrel took place all of a sudden without premeditation on the spur of the moment and even accepting that the case of the prosecution is established, the facts on record indicate that the appellant-Nagendra Kumar did not intend to cause death of the deceased Dharmendra Sankhla. It was further contended that appellant was having no previous enmity or malice with the deceased and he did not expect to meet the deceased at the time and place of the incident and that the case of the appellant is squarely covered by exception 4 of Section 300 IPC. Learned counsel also contended that at the time of the incident, he appellant was hardly a boy of 19 years and as per version of the prosecution he inflicted a solitary blow with no attempt to repeat any further blow to the deceased.Shri S.R. Bajwa, learned counsel appearing for the appellant Arvind Kumar seriously urged for his acquittal from all the charges, contending that his name does not find place in First Information Report (FIR), which was lodged by the brother of the deceased who claim to be an eye-witness of the incident. Further elaborating, Mr. Further elaborating, Mr. Bajwa contended that un disputably the appellant Arvind was known to the informant, Rajendra Sankhla and that prosecution has led evidence to the effect. that some quarrel had taken place between the deceased and the appellant, Arvind Kumar few days prior to the incident, in that situation, the informant would not have missed naming him in the FIR. Learned counsel further contended that as per the prosecution case the appellant-Arvind Kumar did not cause any injury to the deceased and that the charge against him was to the effect that he caught injured Dharmendra Sankhla and by doing so, he facilitated causing of the injury by the appellant -Nagendra Kumar, but none of the prosecution witnesses has stated this fact and the only evidence led by the prosecution to connect him is that he provided the weapon `Katar' for which there was no charge. 8. Learned Public Prosecutor, assisted by the learned counsel for the complainant, on the other hand, vehemently contended that the sole injury caused to the deceased has been opined by the Doctor to be sufficient to cause death in the ordinary course of nature and the said injury was deliberately and intentionally caused by the appellant, Nagendra Kumar. It was, therefore, contended that clause third of Section 300 IPC is squarely attracted, so far appellant Nagendra Kumar is concerned, he was rightly convicted under Section 302 IPC. For the appellant, Arvind Kumar, it was contended that his complicity with the appellant Nagendra Kumar at the time of incident and the fact of providing knife `Katar' to him for causing injury to the deceased is fully established by the evidence of eye-witnesses. 9. We have carefully gone through the impugned judgment under challenge before us and the evidence on record to appreciate the above submissions made by the learned counsel on both the sides. 10. So far -merit of the case is concerned, after going through the entire materials on the record, including statements of the eye-witnesses and other corroborative evidence in the shape of FIR and medical evidence, we are satisfied that the learned trial Judge committed no error in holding that the appellant Nagendra Kumar inflicted a\solitary blow with a dagger to the deceased Dharmendra Sankhla and we are in agreement with the trial Court on this score. The half hearted argument made by the learned counsel, Shri Manoj Choudhary that FIR in the present case has been lodged after inordinate delay and that investigation in the case is nor fair, has no merit to stand. The incident took place at or about 8.30 p.m. in the night and immediately after the incident Dharmendra Sankhla was shifted to the hospital in a precarious injured condition. The injury on his stomach required immediate operation and he was taken in the operation room where operation was performed in the same night. For the operation blood was arranged and the informant Rajendra also gave his blood which was taken in the same night. The report's vas made at 11.30 p.m. on the same night. The facts disclose that the anxiety of tall the persons was to provide immediate medical aid to the injured Dharmendra Sankhla in order to save his life. In these circumstances, it cannot be said that the report was delayed one. The explanation given by the informant for lodging the report at 11.30 is satisfactory one and it was rightly accepted by the trial Court. So far unfair investigation is concerned, learned counsel could not point out any substantial material or evidence in support of this argument. The name of the appellant Nagendra Kumar, as author of the sole injury to the deceased, finds place in the FIR and all the eye-witnesses are consistent that he had caused the said injury to the deceased. After going through the entire evidence, for our own satisfaction, we agree with the finding of the trial Court that appellant Nagendra Kumar caused the sole knife injury to the deceased. 11. The next crucial question, seriously contested before us, is what offence is committed by the appellant, Nagendra Kumar ? In other words, whether the offence falls under Section 302 IPC as held by the trial Court or 'Under Section 304 IPC as contended by his learned counsel. 12. 11. The next crucial question, seriously contested before us, is what offence is committed by the appellant, Nagendra Kumar ? In other words, whether the offence falls under Section 302 IPC as held by the trial Court or 'Under Section 304 IPC as contended by his learned counsel. 12. The distinction between `murder' and `culpable homicide not amounting to murder', has been subject matter of long legal debates and it always vexes the courts as and when such question is raised for judicial consideration.In State of Andhra Pradesh v. Rayavarapu Punnayya and another (1977) 1 SCR 601 , the Apex Court of the country has logically laid down as to how this problem should be approached and it is held thus: "From the above conspectus, it emerges that whenever a Court is confronted with the question whether the offence is `murder' or `culpable homicide not amounting to murder' on the facts of the case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, lends to the second stage for considering whether that act of the accused amounts to `culpable homicide' as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of this four clauses of the definition of murder contained in Section 300. If the answer to this question is in the negative, the offence would be `culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, 1. (1977) I SCR601. respectively on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in Section 300, the offence would still be `culpable homicide not amounting to murder' punishable under the First Part of Section 304 of Penal Code. The above are only broad guidelines and not cast-iron imperatives. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in Section 300, the offence would still be `culpable homicide not amounting to murder' punishable under the First Part of Section 304 of Penal Code. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes, the facts are so inter-twined and the second and the third stage so telescoped into each other, that it may not be convenient to give separate treatment to the matters involved in the second and third stages." 13. Under the scheme of the Indian Penal Code (IPC), culpable homicide is genus and murder, its specie. Every `murder' is `culpable homicide' but not vice versa. Section 299 defines that whoever caused 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 would cause death, commits the offence of culpable homicide. Under Section 300 culpable homicide is murder when the accused cause death by doing an act with the intention of causing death or causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act would cause death. If the accused intentionally caused bodily injury which is found to be sufficient in the ordinary course of nature to cause death, attracts clause third of Section 300 IPC. If the accused knows that the act he caused is so imminently dangerous that it must, in all probability cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury, it would attract clause forth. A death covered by any of the four clauses of Section 300 would be murder unless it is brought in any of exceptions. In a given case, even if the case does not fall in any of exceptions, still if the ingredients of Clause (1) to (4) of Section 300 are not satisfied, then too, it would be culpable homicide not amounting to murder punishable under Section 300 either Part-I or Part-II. It is always the duty of the prosecution to prove the offence of murder. 14. It is always the duty of the prosecution to prove the offence of murder. 14. Exception (4) of Section 300 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 having taken urdue advantage or acted in a cruel or unusual manner. Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault." To invoke this Exception, four requirements have to be satisfied, namely, (1) it was a sudden fight (ii) there was no pre-meditation (iii) the act was done in a heat of passion and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not always relevant nor is it relevant who offered provocation or started the assault. The number of wounds caused during occurrence is also not a decisive factor, but what is important is that the occurrence must have been sudden and in-premeditated and offender must have acted in a it of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment, picks up the weapon, which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided, he has not acted cruelly (See Surendra Kumar v. Union Territory, Chandigarh Para 6 AIR 1989 SC 1094 . 15. In Radha Kishan v. State of Haryana, AIR 1987 SC 768 , it was observed as under:- "The appellant, in our opinion, should have been convicted under Section 304 Part-I instead of under Section 302 IPC. The circumstances make it clear that the appellant would not have intentionally shot Darya with a view to kill him or even with a view to cause an injury which would be sufficient in the ordinary course of nature to cause death. For nearly three days the appellant was moving closely with Darya and if he had wanted to kill him, he would have done so on the night of the 5th or 6th of December in a lonely place in the forest area. For nearly three days the appellant was moving closely with Darya and if he had wanted to kill him, he would have done so on the night of the 5th or 6th of December in a lonely place in the forest area. Further more, there is evidence that the appellant, Amar Singh and Darya were engaged in some heated argument when they passed the land of PW 2 a few minutes before the occurrence. It is also in evidence that the appellant and Amar Singh were found to have consumed liquor when they were apprehended. They had confessed to PW 2 and other that in their inebriated condition they did not know what had happened. No doubt they tried to run away from the scene but it must be more on account of fear than on account of any guilty mind. We, therefore, feel that the circumstances warrant the conclusion that the appellant must have shot Darya either on account of some grave and-sudden provocation or in the course of sudden quarrel attracting Exception 1 or Exception 4 to Section 300 IPC." 16. In Balbir Singh v. State of Punjab (1995 Suppl. SCC 472 , the accused inflicted single head' injury by a `Kripan' but, no attempt was made to give another blow. There was no premeditation and the injury caused on the head of the deceased was not found to have been caused intentionally. It was held that the offence falls under Section 304, Part-I and not under Section 302 IPC. 17. In back-ground of the legal position enumerated above, let us examine the factual aspect leading to the incident and the manner in which it had taken place in order to determine whether the offence committed by the appellant - Nagendra Kumar is under Section 302 or 304 Part I IPC. The FIR of the incident was made by PW 3-Rajendra Kumar, real brother of the deceased, but it lacks the necessary facts on the above points. PW 3-Rajendra Kumar, however in his statement in the Court has deposed that he was standing near the shop of Anil Khatri along with Anil Khatri, Rajendra Bhomalia and Naveen Jain when they heard the noise of quarrel which was going on between the appellant - Nagendra Kumar and his two associates with his brother Dharmendra Sankhla. PW 3-Rajendra Kumar, however in his statement in the Court has deposed that he was standing near the shop of Anil Khatri along with Anil Khatri, Rajendra Bhomalia and Naveen Jain when they heard the noise of quarrel which was going on between the appellant - Nagendra Kumar and his two associates with his brother Dharmendra Sankhla. PW 4-Nawal Kishore Sharma has also stated about the quarrel between appellants and the deceased near the shop of Chintu Halwai. PW 5-Suresh Chand has stated that a quarrel between the accused and the deceased preceded with the infliction of solitary blow by the appellant - Nagendra Kumar. Similar is the statement of Anil Khatri, who admits in cross-examination that he heard the noise ' of quarrel between the accused and the deceased which was going on for 2-3 minutes prior to the fight: PW 9 Rajendra Bhomalia has made similar statement that an altercation was going on between the appellants and the deceased Dharmendra Sankhla prior to the fight and that he was unable to tell the cause of incident. PW 10-Chandra Shekhar, is the last eye-witness examined by the prosecution. He has described the incident that on 11.7.93, after seeing movie on television, he came but to have a walk. He was asked but the wife of Shyam Ji (2) AIR 1989 SC 1094 (3) AIR 1987 SC 768 (4) (1995) Suppl. SCC 472. Sharma to bring milk of two rupees and when he was going to purchase milk, the appellant Nagendra Kumar met him and he also accompanied him. When they came to the shop of Babu Lal Jain, they found Dharmendra Sankhla there. Dharmendra Sankhla, seeing Nagendra Kumar, called him to come near and rebuked him telling as to why he was staring towards him. Nagendri told him that he too was staring towards him., Then, there was a light scuffle between them and Dharmendra gave a slap to Nagendra. On his intervention, they were separated and Nagendra Kumar went with him for purchasing milk. After purchasing the milk, when they were returning, Nagendra Kumar stopped near the house of Dwarka Bal. The gate of the house was closed and he called Arvind who was in the house. When Arvind came out, he told him about the above incident. Thereupon, Arvind stated that they would see Dharmendra today. Then, both of them went towards `Chaumukha' and he followed them. The gate of the house was closed and he called Arvind who was in the house. When Arvind came out, he told him about the above incident. Thereupon, Arvind stated that they would see Dharmendra today. Then, both of them went towards `Chaumukha' and he followed them. He stopped at the shop of Danmal to take beetle while Nagendra Kumar and Arvind went towards the shop of Chand Ji. From opposite direction, Dharmendra Kumar was coming and when they came across to each other, Nagendra abused him. Thereupon the deceased Dharmendra Kumar caught collar of Nagendra and gave on slap, and Nagendra gave a blow with a `dagger' which struck on stomach of Dharmendra. The `dagger' was given by Arvind. Thereafter, both ran away. 18. Admittedly, there was no prior enimity between the appellant and deceased- Dharmendra Sankhla. Even on the established facts of the prosecution case, it is clear that the incident took place all of a sudden without premeditation on an insignificant cause and in the course of the sudden quarrel, the appellant, Nagendra Kumar gave a solitary blow with `Katar' no attempt for another blow. Taking into consideration the totality of the facts and the circumstances in which the incident occurred, it can be safely said that the appellant did not intend to murder the deceased, though, unfortunately, the solitary blow proved fatal and caused death. In the circumstance, we are also of the confirmed opinion that the present case is squarely covered by Exception-4 of Section 300 IPC and conviction of the appellant Nagendra Kumar can be under Section 304 Part-I IPC instead of 302 IPC. It is true that the injury sustained by the deceased was severe in nature but for the application of Exception-4, the offence against the appellant would have been under Section 302 IPC. 19. So far the appellant Arvind Kumar is concerned, we find it difficult to maintain his conviction either under Section 302 or 304 with the aid of Section 34 IPC for more than one reason. Firstly, his name does not find place in the FIR which was lodged by none else than the real brother of the deceased. The appellant Arvind Kumar was known well to him. It also appears that the informant - Rajendra Kumar had grievance against him for an incident which had taken place a week prior to the incident of the present case. The appellant Arvind Kumar was known well to him. It also appears that the informant - Rajendra Kumar had grievance against him for an incident which had taken place a week prior to the incident of the present case. In that situation, his name would not have been left out in the FIR, if, in fact, he had participated in the incident. The explanation that Rajendra Kumar was mentally agitated due to his brother's serious condition, and for this reason he omitted to name the appellant Arvind Kumar in the FIR is not acceptable. Then, the charge framed against him was that he caught the deceased Dharmendra Sankhla, and by this set he facilitated infliction of blow by Nagendra Kumar on the stomach of Dharmendra, but the evidence led by the prosecution is there to the effect that he provided the weapon i.e. `Katar' to Nagendra Kumar for inflicting injury to Dharmendra Sankhla and thus, he facilitated the commission of the offence for which there is no charge against him. Otherwise also, on the facts and in the circumstances of the case, we are not convinced that appellant Arvind Kumar shared common intention with appellant Nagendra Kumar for causing the solitary blow with a `Katar' in the incident which occurred on the spur of the moment. He deserves to be given the benefit of doubt for the injury sustained by the deceased. However, his conviction under Section 4/25 of Arms Act is maintained. 20. In the result, the appeal partly succeeds. The order of conviction and sentence passed under Section 302 IPC against the appellant. Nagendra Kumar is set aside. Instead, he is convicted under Section 304 Part I IPC and directed to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 10,000/-. In default of payment of fine, he shall undergo further rigorous imprisonment for six months. The amount of fine, if realised shall be paid to the legal heirs of the deceased Dharmendra Sankhla. The appellant, Arvind Kumar is acquitted of the charge under Section 302 read with Section 34 IPC. His conviction under Section 4/25 Arms Act is maintained for which he is sentenced to the period of imprisonment already undergone by him. He is in jail and shall be released if not wanted in any other case.Appeal partly Allowed. *******