JUDGMENT - BRAHME P.S., J.: - The appellant Madhukar Chatur has preferred this appeal against the judgment and order passed by Sessions Judge, Amravati in Sessions Trial No. 108/1994, whereunder he was convicted for offences punishable under sections 302 and 324 I.P.C. and was sentenced to suffer R.I. for life and fine of Rs. 200/- in default to undergo R.I. for one month and R.I. for one year. The substantive sentences were to run concurrently. 2. The incident which gave rise to this prosecution against the appellant took place on 13-8-1991 in the evening at 6.30 p.m. at village Virshi within Walgaon Police Station. The victim-Wamanrao Chatur was residing with his wife Chandrakalabai (P.W. 2) and sons Kailash (P.W. 1), Gautam (P.W. 4) and they were related to the appellant-Madhukar who was residing in the same locality. The appellant also had his agricultural land adjoining to land of deceased Wamanrao. Admittedly, there was dispute between them over the boundaries of agricultural land and in that regard a proceeding was pending in the Court of law. On the day of occurrence initially deceased Wamanrao was standing in front of the shop of one Meshram chitchatting with one Sadashiv (P.W. 6), wherein latter informed deceased Wamanrao that the appellant-Madhukar was a man of hot tempore and had lodged a report against him that time appellant Madhukar came there holding a cycle chain and at once tried to assault Wamanrao with it, but Kailash son of Wamanrao ran. Sadashio Raut and Rajendra Chatur intervened and saved Wamanrao from attack by Madhukar and then these persons too away Madhukar from there. It is the case of the prosecution that on the same night while Wamanrao, his wife Chandrakala and sons Kailash and Gautam were sitting in their courtyard, Madhukar came there and dragged Wamanrao holding his hands and at once assaulted Wamanrao inflicting blows by knife on his abdomen, chest as a result of which Wamarao fell down having sustained bleeding injuries and died instant death. It was Kailash who intervened when Madhukar dealt blows of knife on his abdomen twice and on the left side of his chest three blows were inflicted and ran away. It was Kailash who intervened when Madhukar dealt blows of knife on his abdomen twice and on the left side of his chest three blows were inflicted and ran away. Thereafter, Chandrakala and one Mahadeo tied the injuries of witness Kailash who then immediately came to the Police Station and lodged the report (Exhibit 34) at Police Station, Walgaon, where on the basis of that offence was registered at Cri. No. 170/1991. 3. During the course of investigation the Investigating Officer on visiting the place of occurrence prepared inquest panchanama, spot panchanama and seized the articles including blood mixed with earth, saree of witness Chandrakala having stains of blood, and referred the articles sealed for chemical analysis to the Chemical Analyser. The police also referred the witness Kailash to Medical Officer Dr. Rekha Gohod (P.W. 6) who examined witness Kailash for injuries and issued certificate vide Exhibit 45. She also examined one Rajendra Chatur (P.W. 4), for the injuries he sustained and issued certificate Exhibit 46. The dead body was sent to the hospital for carrying out autopsy. Dr. Ashok Lande (P.W. 9) who was then Medical Officer General Hospital Amravati conducted autopsy on the dead body of Wamanrao and prepared post-mortem note Exhibit 58 giving details of external as well as internal injuries, which he noticed, he also opined that the injuries were antemortem in nature and the external injury No. 1 corresponded to internal injury to lung and heart while external injury No. 2 was corresponding to internal injury to liver and in his opinion the cause of death was haemorragenic shock due to external Injuries Nos. 1 and 2. After completing investigation charge-sheet was filed in the Court of law. 4. The appellant was absconding since the date of offence. He was then arrested by police on 21-2-1993 and thereafter seized knife in pursuance of the statement made by him and then additional charge-sheet was filed. Then the learned J.M.F.C. Amravati committed the case to the Court of Sessions of Amravati. 5. The appellant pleaded not guilty to the charge (Exhibit 15) framed against him and claimed to be tried. His defence is that of total denial and also of false implication. Then the learned J.M.F.C. Amravati committed the case to the Court of Sessions of Amravati. 5. The appellant pleaded not guilty to the charge (Exhibit 15) framed against him and claimed to be tried. His defence is that of total denial and also of false implication. It was also suggested by defence to the prosecution witnesses that the appellant was assaulted by the deceased Wamanrao and his sons with the weapons like axe and knife and in that incident Wamanrao came to be injured with knife in the scuffle that took place while he was intervening. It was also suggested by the defence that when appellant was attacked by witness-Kailash and his brothers, deceased Wamanrao came to be assaulted in exercise of right of private defence by the appellant. The learned trial Court accepting the evidence of witness Kailash, Chandrakala and Gautam who gave direct eye-witness account of the incident of assault on Wamanrao by the appellant, medical evidence consisting of opinion expressed by the doctor about the injuries sustained by Wamanrao and witness-Kailash, came to the conclusion that Wamanrao was done to death by the appellant by assaulting him with the knife causing multiple injuries on vital part of his body and witness-Kailash was also assaulted by the appellant-Madhukar with knife with the intention to kill him and accordingly the appellant came to be convicted for offence under sections 302 and 307 I.P.C. and was accordingly sentenced as stated above. He was however, acquitted of the offence under section 325, in respect of injuries alleged to have been caused to witness-Rajendra and mostly for the reason that witness-Rajendra himself did not support the prosecution case as regards the assault on him by appellant-Madhukar. Hence the appeal. 6. We have heard Mr. Daga, learned Counsel for the appellant and Mr. Mirza, learned A.P.P. for the State. We have also gone through the material as well as evidence on record with the assistance of learned Counsel for the parties. Mr. Daga, learned Counsel only challenged the conviction of appellant for offence under section 302 I.P.C. He submitted that on the evidence on record, the first part of incident in which the quarrel took place lasted for ½ hour. He pointed out that though witness claimed that at that time. Wamanrao was assaulted with cycle chain, it is not established. Mr. Daga, learned Counsel only challenged the conviction of appellant for offence under section 302 I.P.C. He submitted that on the evidence on record, the first part of incident in which the quarrel took place lasted for ½ hour. He pointed out that though witness claimed that at that time. Wamanrao was assaulted with cycle chain, it is not established. So it was just a verbal and oral wrangle and though the appellant was armed with cycle chain he did not use it. Then followed the second part of incident at night when the appellant came to the place where Wamanrao and his family members including witness-Kailash and Gautam were seated and there was scuffle between them, in which ultimately blows came to be inflicted on the person of Wamanrao on his abdomen and chest causing injuries severe as they as a result of which he died on the spot. It was therefore, submitted by Mr. Daga that the appellant had no intention to cause death. The victim came to be assaulted on the spur of moment, when there was sudden quarrel and also while there was scuffle and in the heat of passion. He also submitted that at the time of first part of incident, that took place in the evening when the appellant went to the place where deceased Wamanrao and witness-Sadashio were chitchatting, no assault was made by the appellant. Admittedly the appellant was not that time carrying knife with him. He therefore, submitted that in the facts and circumstances the case would fall in Exception 4 of section 300 of I.P.C. and the appellant would be found guilty for offence of culpable homicide not amounting to murder as per section 304-I I.P.C. 7. Mr. Admittedly the appellant was not that time carrying knife with him. He therefore, submitted that in the facts and circumstances the case would fall in Exception 4 of section 300 of I.P.C. and the appellant would be found guilty for offence of culpable homicide not amounting to murder as per section 304-I I.P.C. 7. Mr. Mirza, learned A.P.P. on the other and submitted that the trial Court has considered this question as to what offence is made out and having regard to the circumstances attending the case, grievous nature of injuries sustained by the victim and the fact that the victim died instantaneously on the spot and that there being no sudden provocation on the part of the deceased, the case is not covered under Exception 4 of section 300 and as such the trial Court has rightly convicted the appellant for offence under section 302 of I.P.C. He also justified the conviction of appellant for offence under section 324 I.P.C. for causing injury to the witness Kailash. 8. As to the factum of homicidal death of deceased Wamanrao, having regard to the defence of the appellant and the medical evidence on record, in particular, the evidence of Dr. Ashok Lande with the post-mortem report Exhibit 58, it has to be said that the fact that Wamanrao died homicidal death is no more in dispute. That apart as per post-mortem note Exhibit 58, Wamanrao sustained two stab injuries, one above umbilicus and ½ below lower end of sternum and other vertically placed over lateral side of left side of chest over 5th rib and anterior axillary line and Dr. Lande on dissection of body on internal examination noticed, injury to left lung and injury was on the anterior aspect of left lobe, reaching to perichondrium, the injury to heart as noticed was a incised wound ½ c.m. x ¼ c.m. over lateral aspect of left ventricle of heart and injury to liver was incised wound over the anterior aspect of left lobe of liver. Dr. gave candid opinion that cause of death was hemorrhagic shop due to external Injuries Nos. 1 and 2 and external Injury No. 1 was corresponding to injury to lung and hart and the external injury No. 2 was corresponding to internal injury to liver and these injuries were in his opinion to cause instanteneus death. Dr. gave candid opinion that cause of death was hemorrhagic shop due to external Injuries Nos. 1 and 2 and external Injury No. 1 was corresponding to injury to lung and hart and the external injury No. 2 was corresponding to internal injury to liver and these injuries were in his opinion to cause instanteneus death. We have already pointed out that the tenor of cross-examination by which the defence tried to suggest that the deceased and his sons were having quarrel and in the scuffle when deceased intervened he sustained injuries and in that scuffle when appellant came to be attacked by these persons, when deceased intervene, he sustained injuries, when appellant tried to save himself by exercising right of private defence this certainly goes to show that defence has not disputed factum of injuries sustained by victim nor it is disputed that the victim by died of the injuries he sustained at the place of occurrence. Therefore, the deceased Wamanrao died homicidal death. 9. The learned Counsel for appellant as it was done at the trial criticised the evidence of witness-Kailash and Gautam who claimed to have witnessed the incident. No doubt true that the prosecution has heavily relied on the evidence of these two witnesses and also that of witness Chandrakala the wife of the deceased Wamanrao and one of the injured, witness-Rajendra. It is in this background, that the learned Counsel submitted that the witness-Rajendra did not support the prosecution. So far as witness Chandrakala is concerned, learned Counsel submitted that witness kailash has candidly admitted in his evidence that his mother i.e. Chandrakala came to the place of occurrence when his father Wamanrao fell down after he was assaulted. Therefore, her evidence is of no avail to the prosecution. It is therefore, submitted that in the background of this factual position, the prosecution case against the appellant hinges on evidence of witness-Kailash and Gautam. Both these witnesses being related to the victim, having regard to the fact that no independent witness has been examined by the prosecution and witness Sadashiv who was very much present at the time when first part of incident took place and he having not supported the prosecution, it is submitted that no reliance could be placed on the evidence of witness Kailash and Gautam. 10. 10. It is true that witness-Sadashiv (P.W. 5) was admittedly present at the time when the first part of the incident took place. It is the case of prosecution that victim was chitchatting with this witness-Sadashiv and at that time the appellant came there armed with cycle chain and rushed to assault the victim but then witness-Sadashiv, though stated that deceased Wamanrao, came to the shop of one Meshram, where he was standing and when some talk was going on between them, the appellant Madhukar came there and there was some altercation between him and Wamanrao, stated that it did not happen that while they were at the shop of Meshram Madhukar tried to assault Wamanrao. That was the reason why the learned A.P.P. then with permission of the Court declared him hostile. The state of his evidence goes to show that he has not supported the prosecution whole heartedly. But in his evidence he did state about his presence in front of the shop of Meshram and having chitchat with Wamanrao and also about the appellant-Madhukar having come there. It is pertinent to note that this witness-Sadashiv was cross-examined by defence, but then what ever he had stated in his examination-in-chief regarding the presence of Wamanrao and arrival of appellant-Madhukar, at the place in front of shop of Meshram where they were chitchatting, is not controverted, in our opinion, at least what ever the witness has stated in his examination-in-chief about the presence of the appellant-lends support to the prosecution case in respect of happening of the first part of the incident, where there was altercation between the appellant and Wamanrao. Therefore, there is no substance in the submission of Mr. Daga that the evidence of witness-Sadashiv can be of no avail outright for the prosecution. 11. It is true that prosecution has not examined Sahadeo Meshram who was present at the shop and in front of whose shop the first part of the incident of verbal wrangle or altercation took place. But then, there by no infirmity is brought out in the claim of witness-Kailash and-Gautam. That does not affect the credibility of the witness merely because the witnesses were related and interested even. It is not a Rule of law to discard the evidence of eye-witness merely on the ground that they are closed relations of the deceased. But then, there by no infirmity is brought out in the claim of witness-Kailash and-Gautam. That does not affect the credibility of the witness merely because the witnesses were related and interested even. It is not a Rule of law to discard the evidence of eye-witness merely on the ground that they are closed relations of the deceased. As regards the appreciation of evidence of close relatives of victim the Apex Court has observed in the case of (Anvaruddin and others v. Shakoor and others)1, reported in A.I.R. 1990 S.C. 1242 that- "Ordinarily close relatives of the deceased would not allow the real culprits to escape although the possibility of their implicating others with the real offenders needs to be kept in mind." Therefore, what rule of prudence requires is to scrutinize the evidence of such witnesses with due circumspection and if it is found that their evidence is carrying grain of truth and also corroborated by circumstantial evidence, there is reason to accept the same. 12. From the evidence of witness Kailash and Gautam we get first part of incident as it is narrated by us in earlier part of judgment. It is no doubt true that though the appellant went to the place where Sadashiv and Wamanrao were chitchatting, and having cycle chain with him, there is inconsistency as to the actual user of cycle chain for assaulting Wamanrao. Even medical evidence does not support the fact that the Wamanrao came to be assaulted with cycle chain and sustained injuries thereby. 13. The witness-Gautam (P.W. 3) has stated in his evidence that the accused Madhukar had came there with cycle chain and tried to assault his father, however, people intervened and then Madhukar went away. As against that Kailash claimed in his evidence that the appellant assaulted, his father with cycle chain. But that fact is not specifically stated by him in his report Exhibit 34. In that context Kailash has stated in the report that Madhukar came there by holding cycle chain in his hand and rushed on my person and that Rajendra Chatur and some other persons caught hold him and prevented him from assaulting his father. Therefore, there is no wrong for accepting the claim of witness-Kailash made in examination-in-chief about the actual assault with cycle chain on his father by the appellant. Therefore, there is no wrong for accepting the claim of witness-Kailash made in examination-in-chief about the actual assault with cycle chain on his father by the appellant. But that by itself is no reason to discard the rest of the claim made by witnesses as to assault on Wamanrao by the appellant with knife which took place in the latter part of the incident, so, accepting that in the first part there was no actual assault by the appellant on victim, it is certain that it was the appellant who picked up quarrel with the victim by going to the place where the victim and his son Kailash were chitchatting with witness-Sadashiv. There was only altercation between them. It may be insignificant so far it related to that part of incident, but that certainly goes to show that it was the appellant who was aggressor and it was he who initiated quarrel or invited quarrel by himself going to the place where deceased was. Happening of this incident according to us, in our opinion was the genesis for which assault on the victim by the appellant with the knife that took place in the second part of the incident. In our considered opinion this destroys the entire defence theory of putting entire blame of victim and witness-Kailash and his brothers for being instrumental to cause serious injuries to Wamanrao. 14. As regards the latter part of incident, witness Kailash has stated in his evidence that after the first incident he himself, his father-Wamanrao, his mother Chandrakala and his brothers Pramod and Gautam were sitting in the courtyard of their house, at that night. The appellant came there with knife in his hand and pulled his father on road and stabbed him giving blows inflicting injuries on his abdomen and chest. This version is corroborated by witness-Gautam by saying in his evidence that after half an hour the appellant Madhukar came with knife to the courtyard of their house where they were sitting and pulled his father on the road and dealt blows with knife and when his brother Kailash tried to intervene, he was assaulted giving blows on him. Rajendra Chatur (P.W. 4) was examined by the prosecution, but he did not support. Rajendra Chatur (P.W. 4) was examined by the prosecution, but he did not support. In his examination-in-chief, however he had stated that while he was returning from the field at about 7.00 p.m. scuffle was going on between Kailash, Wamanrao and Madhukar and some time thereafter Wamanrao died. The witness Chandrakala, stated in her evidence that on the day of incident at about 7.30 p.m. she herself, her husband and her sons Kailash, Gautam and Pramod were sitting in the Courtyard of their house, when her husband was saying that Madhukar used to pick up quarrel with him unnecessarily and that at that time, Madhukar came and assaulted her husband with knife when Kailash tried to intervene, he was also assaulted with knife. Witness Kailash in his cross-examination has stated that his mother came there after his father fell down on the ground. He also stated that his two brothers Pramod and Gautam came there when his father was lying on the ground. But then the fact remains that when Madhukar came there, this witness Chandrakala, Gautam and Kailash were sitting with deceased Wamanrao in their courtyard and appellant having come there with knife dragged Wamanrao to a distance on the road, and then assaulted with the knife. It is not that Wamanrao was taken away by Madhukar from his Courtyard to a distance far away from the courtyard, so that the witnesses-Chandrakala and Gautam who were sitting in the courtyard, could not have noticed the assault on the Wamanrao by the appellant. Therefore, even though these witnesses Chandrakala and Gautam had reached the place of actual assault, after Wamanrao fell down on the ground after having sustained injuries, in all probability they must have atleast witnessed the factum of assault on Wamanrao. Therefore, there is no substance in the submission of learned Counsel for the defence that the evidence of witness-Chandrakala and Gautam on the point of assault by appellant on Wamanrao with knife is of no avail. It is significant to note that the fact that these two witnesses Chandrakala and Gautam were present in the Courtyard where initially deceased Wamanrao was sitting is not at all disputed. As such the claim of these witness that Madhukar assaulted Wamanrao with knife is found to be equally truthful. It is significant to note that the fact that these two witnesses Chandrakala and Gautam were present in the Courtyard where initially deceased Wamanrao was sitting is not at all disputed. As such the claim of these witness that Madhukar assaulted Wamanrao with knife is found to be equally truthful. It was suggested by defence to witness Kailash that accused assaulted his father with cycle chain and therefore, the witness Kailash and his brothers and his father got annoyed and assaulted Madhukar by axe and knife. It is also suggested by the defence to witness Kailash that accused Madhukar sustained injury on his head and that the knife which was in his hand caused injuries to his father. The witness Kailash has denied the suggestions stoutly, but the suggestions given by defence to these witnesses do suggest the presence of these witnesses as well as that of witness Gautam and Chandrakala, at the time when Wamanrao sustained injuries. 15. So far as witness Kailash is concerned, as the evidence stands, he also sustain injuries on his person and the Medical Officer Dr. Rekha Gohod (P.W. 6) who examined him has stated in clear words in her evidence about the factum of injuries sustained by him as noted by her in certificate-Exhibit 45 issued by her. It is not disputed that witness Kailash sustained injuries on his person as noticed by doctor. His presence at the time of assault is not disputed even on the showing by the defence as suggested. It is established that witness Kailash sustained injuries, at the time when Wamanrao came to be assaulted actually when Kailash intervened to save his father. Therefore, witness-Kailash being a person injured, his evidence of having witnessed the assault on his father, has to be accepted as natural and true. He being injured person in all probability he is bound to give evidence, disclosing the real assailant of his father. In the nature of things he will not allow the real culprit to escape or scot free. Therefore, there is no reason for witness Kailash to implicate the appellant falsely. His evidence is further corroborated by medical evidence about which there is no dispute. 16. In the nature of things he will not allow the real culprit to escape or scot free. Therefore, there is no reason for witness Kailash to implicate the appellant falsely. His evidence is further corroborated by medical evidence about which there is no dispute. 16. Having regard to the evidence of witness-Kailash, Chandrakala, Gautam, coupled with the medical evidence and the circumstances attending the case and with the sequence of the occurrence of assault followed by initial trivial incident of altercations which provided motive for the appellant to assault the victim, it is established by the prosecution beyond reasonable doubt that the appellant has assaulted victim Wamanrao with the knife and caused serious injury by inflicting blows on his vital part of the body namely abdomen and chest. Therefore, the appellant is responsible for homicidal death of Wamanrao. 17. On the evidence on record, particularly from the evidence of witness, Kailash, coupled with the medical evidence, it is also established that Kailash was assaulted by Madhukar with knife and sustained multiple injuries on his person. The trial Court has rightly found the appellant guilty for offence under section 324 I.P.C. for having caused injuries to Kailash with knife. Therefore, so far as conviction of the appellant for the offence under section 324 I.P.C. and sentence thereof is concerned, we do not think that any interference is called for. 18. The trial Court has rightly found the appellant guilty for offence under section 324 I.P.C. for having caused injuries to Kailash with knife. Therefore, so far as conviction of the appellant for the offence under section 324 I.P.C. and sentence thereof is concerned, we do not think that any interference is called for. 18. The trial Court has found that the appellant having committed murder of Wamanrao, committed offence under section 302 I.P.C. and therefore, the appellant came to be convicted for offence under section 302 I.P.C. while dealing with the submissions of the learned Counsel for the appellant in earlier part of the judgment, we have stated that the Counsel for the appellant has very seriously challenged the conviction of the appellant for offence of committing murder under section 302 I.P.C. The learned Counsel giving much emphasis on the fact that initial quarrel lasted for half an hour and that time actually no assault was made by the appellant on the victim though he was holding cycle chain and then in the latter part of the incident, though the appellant went to the courtyard of victim and dragged him on the road and then assaulted with the knife inflicting injuries on his person, in all probabilities this has occurred on the spur of moment as a result of sudden quarried and the victim came to be assaulted in heat of passion and that the appellant has not acted in cruel manner since after the deceased fell down, on suffering injuries, the appellant ran away from the place. It is submitted that had he continued assaulting victim even after he fell down, it could have been said that the appellant had intention to commit murder. The learned Counsel therefore, justified his submission to scale down the offence to section 304-I I.P.C. 19. Mr. Mirza, learned A.P.P. on the other hand submitted that having regard to the circumstances attending the case, grievous nature of injuries sustained by the victim and the fact that the victim died instantaneously and then there being no sudden provocation on the part of the deceased, the case is not covered under Exception 4 of section 300 I.P.C. 20. Mr. Daga, learned Counsel for the appellant placed reliance on the decision of Apex Court in A.I.R. 2002 S.C. 1168 (Sukhbir Singh v. State of Haryana)2, to substantiate his submission. Mr. Daga, learned Counsel for the appellant placed reliance on the decision of Apex Court in A.I.R. 2002 S.C. 1168 (Sukhbir Singh v. State of Haryana)2, to substantiate his submission. In that case while considering the appeal against conviction recorded by the High Court on facts it was found that the occurrence of altercations took place when the accused therein got mud splashes on account of sweeping of street by the son of deceased and in the quarrel that ensued, the deceased gave slaps to the accused for no fault of his and the quarrel appeared to be sudden on account of heat of passion and there was no previous enmity between the parties and the accused went home and arrived in the company of others on the spot for a fight without telling them his intention to commit ultimate crime of murder and as such time gap between quarrel and the fight was few minutes only and after the injuries were inflicted and the injured had fallen down, the accused was not shown to have inflicted any other injury upon the person of deceased, when he was in a helpless position, it could be said that in the heat of passion upon sudden quarrel followed by a fight the accused who was armed with Bhala, caused injuries at random and thus did not act in a cruel or unusual manner. In the circumstances, the Apex Court observed that it could be said that the accused committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon sudden quarrel and did not act in a cruel manner and his case is covered by Exception 4 section 300 I.P.C. which is punishable under section 304(I) I.P.C. It is needless to say that the Apex Court on the basis of facts and circumstances of the case, has found that the accused therein committed offence of culpable homicide not amounting to murder. The accused initially was not armed with any weapon, after initial quarrel the accused then went to his house and returned within few minutes bringing with weapons with which he assaulted ultimately the deceased. The accused initially was not armed with any weapon, after initial quarrel the accused then went to his house and returned within few minutes bringing with weapons with which he assaulted ultimately the deceased. It was also found that there was no previous enmity and when the first part of the incident took place, it was the deceased who gave slaps to the accused for no fault of his and as such the quarrel ensued, was sudden on account of heat of passion, and the accused then caused injuries with Bhala at random and therefore, it was found that the accused did not act in cruel or unusual manner. In view of that situation and factual position, the case was covered by Exception 4 of section 300 I.P.C. 21. But having regard to the facts and circumstances of the case before hand and also the manner in which the incident took place, it is very difficult to hold that the case of the appellant is covered in Exception 4 of section 300 I.P.C. Admittedly, there was long-standing enmity between the appellant and deceased though they were related to each other and they were residing neighbourhood and they had agricultural lands adjoining to each other. As regards the dispute over boundaries of the agricultural land already a proceeding is going on pending in the Civil Court. In the first part of the incident, that took place around 6.30 though the quarrel was sudden, it was invited by the appellant. The factual position admitted in this regard was that it was the appellant who went towards the shop of one Meshram where deceased Wamanrao and witness Sadashiv were chitchatting. It is true that there was oral wrangle between them, and though that quarrel lasted for about ½ hour, nothing untoward took place. That was much more so, though appellant was carrying cycle chain with him. We have found that though the appellant did not actually assault the victim with the cycle chain, it is borne on the evidence on record that the appellant did rush towards victim with the intention to assault him with the cycle chain to some extent when persons including Kailash who were there intervened, there was scuffle, when all efforts to save deceased from being assaulted at the hands of the appellant were made. Therefore, there was no actual assault in that incident as depicted by witnesses in their evidence, the stance of the appellant was to assault the victim. What is more striking is the fact that the entire incident was an the initiation of the appellant without there being any provocation by the victim. 22. Even in respect of latter part of the incident, again at night when victim was sitting with his relations in the courtyard of his house, the appellant at once rushed towards him and he was armed with knife and after having dragged deceased from there to the road, he inflicted blows with the knife on vital part of his body. The result of the assault was that the victim suffered from severe injuries on his chest and abdomen to such extent that there was corresponding internal damage and as the Medical Officer has described it in his evidence, the injuries were fatal and sufficient in the ordinary course of nature to cause death. It is crystal clear that even in this latter part of the incident there was no provocation by the victim. Having regard to the fact that the letter part of the incident has taken place at night, after gap of about an hour, by no stretch of imagination it can be said that the said incident followed in quick succession or in a course of same incident of initial quarrel. There is nothing on record brought by the defence to show that the appellant having arrived on the scene of offence, there was any altercations between him and victim, much less to say that there was even slightest provocation by the victim to the appellant. In fact the victim was sitting alongwith his family members in the courtyard of his house, so the assault, in the latter part of the incident, was not a result of quarrel and or provocation on the part of the deceased. As the evidence stands, which we have accepted, it was all one sided, for the reason that, the appellant of his own rushed to the place where the deceased was sitting and he at once dragged the deceased on the road by holding hands and then dealt blows with knife on his chest and abdomen. 23. As the evidence stands, which we have accepted, it was all one sided, for the reason that, the appellant of his own rushed to the place where the deceased was sitting and he at once dragged the deceased on the road by holding hands and then dealt blows with knife on his chest and abdomen. 23. It is no where brought in the evidence that whatever assault was made by the appellant was at random, and in the state of scuffle between the appellant and deceased. It is no doubt true that witness Kailash was there, but certainly after the appellant inflicted blows. We are also aware of the fact that witness stated that there was scuffle. But it is certainly that the scuffle was because of the intervention of the witness Kailash after having seen his father being assaulted with knife by the appellant. It is a matter of record that when Kailash intervened, naturally to save his father, and the appellant proceeded to assault him and in that process Kailash also sustained multiple injuries. It is not the case of defence that Kailash and his father Wamanrao were armed with any weapon. In earlier part of the judgment while considering the submission of defence, wherein victim, his relations including Gautam, were armed with sticks and knife and they assaulted the appellant, it was found that there is no iota of evidence nor it was justified on the basis of facts and circumstances of the case that they were armed with the weapon. No injury has been sustained by the appellant. That was the reason why we have discarded the theory of the defence of assault arising out of and in exercise of right of private defence. In this background, when the appellant at once dealt blow specifically on stomach and the chest, when there was no intervention by any one and without there being any provocation by the deceased, it is obvious that the appellant who appeared on the scene armed with the weapon intended to use the weapon, namely the knife to cause injury to the victim. It is needless to say that when the appellant has at once assaulted on the vital part of the body with knife and deceased died on the spot, it is obvious that the intention of the appellant was to commit murder. 24. It is needless to say that when the appellant has at once assaulted on the vital part of the body with knife and deceased died on the spot, it is obvious that the intention of the appellant was to commit murder. 24. It is true that after the deceased fell down after having sustained two blows with knife at the hands of the appellant, the appellant did not make further assault. Learned Counsel for the appellant making much of this factual aspect of the matter, submitted that the appellant has thereby not acted in cruel and unusual manner and on the basis of that he tried to seek protection under Exception 4 of section 300 I.P.C. We do not think that in the background of this factual position when the appellant at once inflicted two blows in succession on vital part of the body, there is hardly any scope to infer that the appellant did not act in a cruel manner merely because he did not inflict any further blow when the deceased fell down. The concept of offender having not acted in cruel and unusual manner is relevant to consider for cases falling under Exception 4 of section 300 I.P.C., when the victim is assaulted when there being provocation by him and the assault is in the heat of passion without there being intention to cause particular injury. In the heat of passion when the victim is assaulted inflicting blows on vital part of his body as a result of which the victim falls and dies instantaneous death it would be fallacious to say that offender has not acted in cruel and unusual manner, because he did not inflict further blow on the victim after latter was fallen down. Therefore, it is difficult for us to agree with the submission of learned Counsel to scale down the offence to that punishable under section 304(I) I.P.C. 25. In this context Mr. Mirza, learned A.P.P. has rightly placed reliance on decision of Apex Court in 2003 Cri.L.J. 57 (Hukumdchand v. State of Haryana)3, in that case on evidence it was found that the accused was called to the place of occurrence went there armed with Farsa (deadly weapon) with it heat deceased on his head and the blow was severe and sufficient to cause death. The injuries suffered by deceased was not received by chance, while the accused and the deceased grappled with each other. The Apex Court on these facts held that the fact that the accused were not armed with Farsa indicated his intention to use it and cause death and therefore, the offence was murder and not the culpable homicide not amounting to murder. In that case the defence raised by the accused party was that the complainant party was aggressor, but no serious injury was shown to be received by the accused party. Further defence was raised by the accused, that the deceased received the fatal blow from his own error. The theory of self defence raised by the accused was rejected and not acceptable. In the case before hand in our opinion the factual position is more or less the same as that was before the Apex Court. In earlier part of judgment, we have dealt with the defence theory of right of private defence as also the deceased having sustained injury with weapons with which the witness including Kailash were alleged to have armed with. We have rejected the defence of the accused. Admittedly the appellant did not sustain any injury. It is not elicited through the evidence by the defence that either the deceased or the witnesses were armed with any weapon much less the knife at the time of either of the part of the incident. The fact finding position in the case before hand as stated earlier clinchingly goes to show that it was the appellant who was all the while aggressor in the sense he had initiated the quarrel. Then to crown this all, it is found that the appellant after having gone to his house, returned to the courtyard of the victim after considerable gap of time and at once inflicted blows with the knife on his chest and abdomen, it was not a case of at random assault, in the process of scuffle. Therefore, as held by the Apex Court, in the case before hand, case would be that of murder punishable under section 302 I.P.C. 26. Therefore, as held by the Apex Court, in the case before hand, case would be that of murder punishable under section 302 I.P.C. 26. In our own assessment, the appellant is guilty of offence of murder and the trial Court has therefore, rightful convicted him for offence under section 302 I.P.C. Therefore, we do not find any reason to interfere with the conviction and sentence awarded by the trial Court under section 302 I.P.C. The appeal merits no consideration at all. The appeal deserves to be dismissed. Hence the order. ORDER The appeal is dismissed. Appeal dismissed. -----