JUDGMENT - R.K. BATTA, J.:---The appellant was tried for the murder of Barsu Bhagat under section 302 of I.P.C. The prosecution had examined 9 witnesses in support of the charge including two eye-witnesses. Besides this, the prosecution had relied upon oral dying declaration of deceased Barsu Bhagat made to his brother P.W. 3 Shalik Bhagat and the recovery of sickle at the instance of the appellant. The trial Court therefore held the appellant guilty of the charge under section 302 of I.P.C. and sentenced the appellant to imprisonment for life. The appellant challenges his conviction and sentence in this appeal. 2. The prosecution case as revealed by Govinda P.W. 1, in brief, is that the accused, P.W. 1 Govinda and deceased Barsu, were living in the close neighbourhood of each other. The house of the P.W. 1 Govinda is said to be in between the house of appellant and deceased Barsu. The appellant suspected Govinda P.W. 1 and deceased Barsu for performing the black magic on his wife due to which she used to remained ill. The son of the appellant and son of Govinda P.W. 1 were studying in the same school and about 1½ years prior to the incident in question, the son of the appellant had shown knife to the son of Govinda P.W. 1. Thereafter accused/appellant came with an axe in his hand in front of the house of Govinda P.W. 1 and abused him. Govinda P.W. 1 reported the matter to the police. On 17-3-1992, Head Constable Pardhi had came to inquire into the said report and in the course of inquiry recorded statement of Barsu Bhagat deceased and Madhukar Kale. 3. On 25-3-1992 at about 7.30 a.m. appellant Pandurang came from the backside of deceased Barsu, caught his hand and gave blow of sickle by its blade on the left side neck of Barsu. The appellant then inflicted blows on the left hand and right leg of Barsu. Thereafter, appellant ran with sickle in his hand towards his field. 4. The stand of the appellant in the statement under section 313 of Criminal Procedure Code is of total denial of the incident in question, though he has stated therein that Govinda, Bhagat and Barsu both used to play black magic on his wife, as a result of which his wife was ill. 5. 4. The stand of the appellant in the statement under section 313 of Criminal Procedure Code is of total denial of the incident in question, though he has stated therein that Govinda, Bhagat and Barsu both used to play black magic on his wife, as a result of which his wife was ill. 5. Learned Advocate for the appellant took us through the evidence of eye witness P.W. 1 Govinda and P.W. 2 Datta Kamble and urged before us that the testimony of Govinda P.W. 1 can not be believed on account of the fact that Govinda was enimical with the appellant and besides that there is material suppression of facts by Govinda on the question as to whether sickle was with the appellant from the beginning of the incident or the same was brought later. Learned Advocate for the appellant could not however find any fault with the evidence of Datta P.W. 2 and he submitted that if the prosecution case is accepted then the case of the appellant would fall under Exception 4 of the section 300 of the Penal Code as a result of which offence in question would fall under section 304-II of I.P.C. In this respect it was firstly argued by the learned Advocate for the appellant that from the evidence of P.W. 1 Govinda it follows that the appellant had not came with the sickle and that the sickle was picked up by the appellant from the working place of Govinda P.W. 1. In the alternative it was suggested that if it is proved that sickle was brought by the appellant, from his house, after the start of the incident, namely scuffle, between the appellant and the deceased, then the case of the appellant would come under Exception 4 of section 300 of I.P.C. as the act of the appellant would then fall within the ambit of head of passion and the appellant did not act in any manner taking advantage of the situation nor acted in a cruel manner. It was also urged by the learned Advocate for the appellant that the Doctor P.W. 7 who conducted postmortem of the deceased, has nowhere stated that the injury which resulted in death was sufficient in the ordinary course of nature to cause death. It was also urged by the learned Advocate for the appellant that the Doctor P.W. 7 who conducted postmortem of the deceased, has nowhere stated that the injury which resulted in death was sufficient in the ordinary course of nature to cause death. According to the learned Advocate for the appellant, intention to cause death or fatal injury sufficient to cause death cannot be attributed to the appellant and at the most knowledge may be imputed to him on account of which the crime under question would again fall under section 304-II of I.P.C. 6. On the other hand learned A.P.P. submitted before us that the appellant had come with the sickle to start with, with a view to take revenge against the deceased Barsu who had given statement, against the appellant on the complaint filed by Govinda P.W. 1. According to him the evidence of P.W. 1 Datta Kamble does not leave room for any doubt that the sickle was with the appellant right from the beginning and the appellant gave a sickle blow on the neck of deceased Barsu from his back side as a result of which carotid artery which is large vessel was cut and the deceased died within 15 hours of the infliction of the said injury. In view of this, it was, therefore, urged that the injury in question which resulted in death was sufficient in ordinary course to cause death. In addition the learned A.P.P. also urged before us that there is evidence of oral dying declaration made by the deceased to his brother Shalik Bhagat P.W. 3 in which deceased Barsu Bhagat in unequivocal terms had informed him that he was assaulted by the appellant with sickle on account of his giving statement against the appellant. According to the learned A.P.P. there is no material on record to bring the case of the accused under Exception 4 of section 300 of the Penal Code, nor for altering the conviction to section 304-II of I.P.C. She, therefore, concluded by stating that the appeal should be dismissed. 7. We have gone through the record. The prosecution had examined two eye-witnesses of the incident namely P.W. 1 Govinda and Datta P.W. 2. We have already pointed out that the appellant suspected Govinda P.W. 1 and deceased Barsu were playing black magic on his wife, due to which she used to remain ill. 7. We have gone through the record. The prosecution had examined two eye-witnesses of the incident namely P.W. 1 Govinda and Datta P.W. 2. We have already pointed out that the appellant suspected Govinda P.W. 1 and deceased Barsu were playing black magic on his wife, due to which she used to remain ill. Govinda P.W. 1 has stated that there was some incident between his son and the son of the appellant, in as much as the son of appellant had shown knife to his son. Subsequently, the appellant has reported to have come with an axe in front of the house of Govinda P.W. 1 and abused him. Govinda P.W. 1 had lodged a complaint with the police and on 17-3-1992 Head Constable Pardhi came to make inquiry into the said report. During the course of the said inquiry, statement of deceased Barsu Bhagat was recorded. Reading of the evidence of Govinda P.W. 1 as a whole shows that initially the appellant Pandurang had asked the deceased Barsu as to why he had given evidence against him. Govinda P.W. 1 had admitted that he had stated this fact to the police. However, he denied that after the said questioning of Barsu by appellant, the appellant had immediately brought the sickle. The Investigating Officer P.W. 8 has however, confirmed, that Govinda P.W. 1 had in fact made a statement to him, that then immediately, he (Pandurang) brought the sickle. The sequence of events, further is that the appellant came with sickle from the backside of Barsu, caught his hand and gave blow of sickle by its blade on the left side of Barsu's neck. Datta P.W. 2 supports this version given by Govinda P.W. 1, when he stated that accused Pandurang came from backside of Barsu, caught his hand and gave two three blows on Barsu. According to him, the blows were given on left side of neck, left hand and right leg of Barsu. The fatal injury which resulted into death of Barsu Bhagat is said to be stab wound over left shoulder near base of neck on left lateral aspect 1" in length and 3.5 cms. in depth. Dr. Hemant P.W. 7 who conducted postmortem of the dead body also found on internal examination that carotid artery of left side was punctured and injured and there was massive bleeding surrounding the large vessel in the tissue outside. in depth. Dr. Hemant P.W. 7 who conducted postmortem of the dead body also found on internal examination that carotid artery of left side was punctured and injured and there was massive bleeding surrounding the large vessel in the tissue outside. According to Dr. Hemant cause of death was due to shock due to massive hemorrhage from carotid artery caused by the stab injury. It is no doubt true that the Doctor had not specifically stated nor he was questioned during his examination by A.P.P. as to the sufficiency of the said injury to cause death, but he categorically stated that the cause of death was due to massive hemorrhage of carotid artery caused by stab injury. The cutting of the carotid arteries (large blood vessel near the neck) is normally fatal and the same may result in death immediately. The injury in question in ordinary course of nature is thus sufficient to cause death. 8. The prosecution with the help of evidence of P.W. 1 Govinda and D.W. 2 Datta Kamble has been able to establish that the fatal injury was caused by appellant by inflicting sickle blow, on the neck of the deceased Barsu. The contention of learned Advocate for the appellant that the injury in question was not intended, does not get support from any material on record. Likewise his contention that the case of the appellant would fall under Exception 4 of section 300 of I.P.C. is also without any merit. In order to bring the case within exception, the burden is on the appellant-accused that the case is covered by exception. It is not necessary that the accused should always lead evidence to discharge the said burden, but the same can also be discharged on the basis of the evidence available on record. Even though, no attempt was made before the trial Court by the defence, to bring the case of the appellant within Exception 4 of section 300 of I.P.C., yet in the appeal such attempt has been made by learned Advocate for the appellant. His contention is that there was a scuffle between the appellant and the deceased and the injury in question was solely due to a blow given in the heat of passion and without in any manner taking undue advantage or acting in a cruel manner. His contention is that there was a scuffle between the appellant and the deceased and the injury in question was solely due to a blow given in the heat of passion and without in any manner taking undue advantage or acting in a cruel manner. There is in fact no material on record to suggest that there was any fight in between the appellant and Barsu. In fact the defence of the appellant, as can be seen from his statement under section 313, is total denial, of inflicting of any injury on the person of the deceased. However, from a single word in the testimony of Govinda P.W. 1, it is sought to be urged that there was scuffle between the appellant accused and the deceased. Govinda P.W. 1 had stated that the accused after scuffling with Barsu, ran on his person with sickle. No details of scuffle were elicited by the defence from Govinda P.W. 1 and at the most it could be said that the scuffle was in the nature of deceased trying to get out of clutches of the appellant who had caught hold of his hand. At any rate there is no material on record to suggest that there was sudden fight, since exception under section 4 of section 300 I.P.C. postulates sudden fight and not mere scuffle. The appellant had come with the sickle in the background of the fact that Barsu had given statement in a complaint lodged by Govinda P.W. 1 against the appellant. Even accepting that the appellant had questioned Barsu as to why he had given evidence against him and thereafter the appellant brought sickle, it is not a case which could be said to be covered by expression "heat of passion". There is no material on record to suggest that the appellant had brought the sickle from cycle repairing shop of Govinda P.W. 1. In fact the suggestion given to Govinda P.W. 1 was, that after the appellant had asked Barsu as to why he had given evidence against him, the appellant had gone home and brought sickle. While Govinda P.W. 1 accepted the fact that Pandurang had questioned Barsu as to why he had given evidence against him, but Govinda P.W. 1 denied to have stated that thereafter, the appellant had immediately brought sickle. While Govinda P.W. 1 accepted the fact that Pandurang had questioned Barsu as to why he had given evidence against him, but Govinda P.W. 1 denied to have stated that thereafter, the appellant had immediately brought sickle. Of course, the Investigating Officer, P.W. 8 as he has already pointed out that, had admitted that Govinda P.W. 1 had in fact stated before the police that after questioning by the appellant Pandurang, he had immediately brought the sickle. At any rate the bringing of sickle in the circumstances by the appellant, was an intentional act on the part of appellant with a view to take revenge against Barsu who had given statement in a complaint filed by Govinda. In our opinion, there is no material on record to suggest that case of the appellant falls under Exception 4 of section 300 of Cri.P.C. Accordingly, we do not find any merit in this submission of the learned Advocate for the appellant in this respect. 9. Learned Advocate for the appellant had also urged before us that it is a case of single blow, but the same is not correct, as beside the fatal injury on the neck, the appellant had further assaulted the deceased Barsu resulting in two other injuries. The learned Advocate for the appellant had also urged before us that intention to kill cannot be attributed to the appellant and it is only that knowledge can be attributed to him. We also do not find any merit in this submission of the learned Advocate for the appellant since the record shows that the appellant had brought the sickle with the intention to kill or cause such injury which is sufficient in the ordinary course of nature to cause death and in fact inflicted an injury with the sickle on the neck cutting carotid vein, (large vessel), as a result of which there was massive bleeding and hemorrhage due to which the deceased died within 15 hours of the infliction of injury. 10. The recovery of the sickle, at the instance of the appellant has been duly established through the testimony of P.W. 4 Bajirao Nalge as also the evidence of Investigating Officer P.W. 9 Segaonkar. The sickle was recovered from the place-bund and it was found buried in earth which means that the sickle was concealed. The authorship of concealment of sickle had, therefore, been duly established. The sickle was recovered from the place-bund and it was found buried in earth which means that the sickle was concealed. The authorship of concealment of sickle had, therefore, been duly established. Though the recovery of the sickle has been established through testimony of P.W. 4 Bajirao, yet the same was not got identified by the prosecution from the eye witnesses. Therefore we have not taken into consideration, for holding appellant guilty, the recovery of the sickle. We have also not taken into consideration the oral dying declaration which is stated to have been made by the deceased to P.W. 3 Shalik Bhagat. According to the injury report of Barsu, when he was initially examined at P.H.C. Arni, which is an admitted document, the deceased was brought at 10.00 a.m. and at that time the patient was semiconscious. P.W. 3 Shalik Bhagat has himself stated in his statement before the Court that after he was informed about the assault on his brother, he had gone to the hospital at Arni and at that time the deceased was unconscious, he tried to speak to him, but he did not reply. Doctors advised the deceased to be taken to the General Hospital, Yavatmal and for that purpose he had brought deceased in a rickshaw to the bus-station. According to P.W. 3 it is on the bus station that he made inquiries with the deceased and at that time he (deceased) told that the appellant beat him with sickle on account of his giving evidence. It seems to be very doubtful, whether such dying declaration was made by the deceased. Since, even according to the P.W. 3 the deceased was unconscious and according to the Medical Officer who examined him at 10.00 a.m., the deceased was semiconscious. In these circumstances we are not inclined to place much reliance on the alleged oral dying declaration of the deceased to P.W. 3 Shalik Bhagat. 11. Be that as it may, the prosecution has been able to establish the charge of murder against the appellant through the evidence of eye-witnesses P.W. 1 Govinda and P.W. 2 Datta Kamble, as also medical evidence on record. Accordingly, we are of the opinion that the appellant was rightly held guilty of the charge of murder under section 302 of I.P.C. The appeal is without any merit and is accordingly dismissed. Appeal dismissed. -----