Judgment N. V. DABHOLKAR, J. ( 1 ) THE appellant-ACCUSED was tried by the 5th Adhoc additional Sessions Judge, Ahmednagar, for offences punishable under Sections 302, 504, indian Penal Code. At the conclusion of sessions Case No. 109 of 2004, by judgment and order dated 30-11-2004, the learned sessions Judge held the appellant guilty on both the charges and sentenced him to suffer life imprisonment, pay fine of Rs. 2,000/-, in default, rigorous imprisonment for six months, on the first count, and only rigorous imprisonment for six months, on the second count. ( 2 ) THE prosecution story, in brief, can be stated as follows:- the deceased Anil was father of P. W. 5 shital and nephew of P. W. 2 Bajrang. On 21-04-2004, at about 2. 00 p. m. , the complainant bajrang was taking rest in the veranda of Datta temple. There is Gram Panchayat office in front of this temple. The deceased Anil, along with his daughter, Shital, then aged about 9-10 years, was sitting in the veranda in front of the gram Panchayat Office. At abut 2. 30 p. m. , the complainant heard shouts of Shital and he noticed that, there was a quarrel (verbal exchange) between the accused and deceased anil. Accused demanded the deceased to provide him liquor but deceased refused, saying that, he does not have money. Thereupon, the accused picked up stones lying near the veranda and hurled those in quick succession towards the deceased. Two stones hit the deceased in the chest and one in the abdomen. Accused tried to run away. However, he was apprehended by Popat and Ravi Gawhane, who were amongst the crowd gathered. Bajrang lodged a complaint with Ahmednagar Taluka police Station on the same day at 17. 05 hours i. e. within 2-'/2 hours from the incident. ( 3 ) THE prosecution has, in all, examined eleven witnesses. But, the complainant Bajrang (P. W. 2) and daughter of the deceased, namely, Shital (P. W. 5), are the star witnesses, since they are the eye-witnesses. Although P. W. 6 Aba deposed, as if he is an eye-witness, admission in his cross- examination that, Anil was lying on the ground, when he reached the location, shows that he cannot be eye-witness and he has reached the location immediately after the incident. P. W. 4 ananda, who was one more eye-witness, has turned hostile. Dr. Although P. W. 6 Aba deposed, as if he is an eye-witness, admission in his cross- examination that, Anil was lying on the ground, when he reached the location, shows that he cannot be eye-witness and he has reached the location immediately after the incident. P. W. 4 ananda, who was one more eye-witness, has turned hostile. Dr. Ashok (P. W. 10) had clinically examined P. W. 2 Bajrang and has issued injury certificate (Exh. 36 ). Dr. Shubhada Ranade (P. W. 11), had carried out the post mortem on deceased Anil. She had also examined accused and issued injury certificate (Exh. 40 ). As per the post mortem report (Exh. 39), dr. Smt. Ranade had noticed fracture of 2nd and 3rd ribs (left) at costochondral junction (internal damage corresponding to external injury, which is contusion over chest manubrium stemi of 5 cm. diameter ). The cause of death is opined to be cardio respiratory arrest due to shock and injury to right lung due to fracture to ribs and sterruem with haemothorax due to blunt trauma to chest. It is needless to refer to the details of nature of evidence rendered by other witnesses. It may be said that, Kantabai (P. W. 3) is the wife of complainant, who had reached the spot immediately after the incident and remaining witnesses are, either police witnesses or panchas, who have participated in the investigation. ( 4 ) HEARD Advocates Shri. Joydeep chatterji for appellant and A. P. P. Shri. S. D. Kaldate for the Respondent-State. As expected, initially, Advocate Shri. Chatterji assailed the evidence of two eye-witnesses i. e. P. W. 2 bajrang and P. W. 5 Shital. On going through the evidence of Bajrang (P. W. 2), we are unable to find any ground gained by the learned counsel before the trial court. Almost whole the cross-examination is full of suggestions denied by the witness and the replies, which are not denials, furnished the details not inconsistent with the evidence rendered in the chief examination. So far as Shital (P. W. 5) is concerned, no doubt, she is a child witness and evidence of a child witness is required to be accepted with caution. But, on going through her cross-examination, there is nothing to suggest, much less believe, that, Shital must be a tutored witness. Her evidence perfectly matches with the account of incident given by p. W. 2 Bajrang. But, on going through her cross-examination, there is nothing to suggest, much less believe, that, Shital must be a tutored witness. Her evidence perfectly matches with the account of incident given by p. W. 2 Bajrang. It is needless to say that, the evidence of P. W. 2 Bajrang should stand corroborated by the contents of the First information Report, which is account of the incident reduced to writing at the narration of bajrang, by the police, when the details of the incident were fresh in the memory of the complainant Bajrang and when there was minimal chance to concoct and add spice to the prosecution story. ( 5 ) SEEING that we are not inclined to accept his submissions regarding these two eye-witnesses being not creditworthy, advocate Shri. Chatterji has tried to persuade us to hold that the offence proved is not the one under section 302 of Indian Penal Code, but it is under section 304 (II) of I. P. C. i. e. culpable homicide not amounting to murder. Advocate Shri. Chatterji has taken us to the definition of culpable homicide, and also to section 300. On reference to section 300, it can be seen that, every culpable homicide described in the opening part of section 300 in all 4 clauses, is murder and only the cases referred to in the exceptions 1 to 5 to section 300, would be the cases, wherein, although death ensues, culpable homicide would not amount to murder. For considering this submission of advocate Shri. Chatterji, we may reproduce the prosecution case in brief. Victim Anil is sitting in the veranda in front of the Gram panchayat Office, accused reaches there and requests the victim to sponsor liquor for his consumption. Victim turns down the request, by saying that, he has no money. There is a verbal exchange in abusive language. The accused picks up stones. He is on the ground, victim is on the platform. Accused hurls stones at the victim from a distance of about 7 ft. to 15 ft. and two stones hit the victim in the chest, one in the abdomen and the victim dies on the spot. We are inclined to agree with the submission of Advocate Shri. Chatterji that the case may fall under clause 4thly' of section 300, and not under first three clauses. to 15 ft. and two stones hit the victim in the chest, one in the abdomen and the victim dies on the spot. We are inclined to agree with the submission of Advocate Shri. Chatterji that the case may fall under clause 4thly' of section 300, and not under first three clauses. Clause 4thly' reads thus: "4thly.- If the person committing the act knows that it 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 as aforesaid. " in the matter at hands, certainly it cannot be said that, the act of the accused was premeditated. He had picked up whatever object was available, i. e. stones and hurled the same at the victim. Advocate Shri. Chatterji would be justified in saying that clauses 1stly, 2ndly and 3rdly of section 300 would not be attracted by the present fact-situation. However, the death ensued in the factual circumstances as contained in clause 4thly of section 300, also amounts to murder. In fact, on taking into consideration the opening part of section 300, which reads; "except in the cases hereinafter excepted. . . . ". it is evident that, once death is ensued, it is for the accused to probabalize that the fact-situation of his case falls within one of the 5 exceptions to section 300, if he desires the court to hold him guilty for an offence punishable under section 304, ipc, either part I or part II, although charged with offence under section 302, IPC. We would be justified in taking such a view, in the light of observations of the Hon'ble the Supreme Court in the matter of Virsa Singh vs. State of Punjab, AIR 1958 SC 465 , and more particularly paragraphs 12 to 16 of the reported j udgment. Advocate Shri. Chatterji submitted that the case of the appellant squarely falls within exception 4 to section 300 of IPC. The same reads as follows: "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. The same reads as follows: "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 the provocation or commits the first assault. " in order that the case should be within the purview of exception 4, following ingredients are required to be probablized by the defence. (1) Death is caused by an incident without premeditation in a sudden fight, (2) in the heat of passion upon a sudden quarrel, and (3) Without the offender's having taken undue advantage or acted in a cruel or unusual manner. First two ingredients are separated by comma and there is conjunction 'and' to separate the first two clauses from third. On reading exception 4 as a whole, it must be said that the same requires generation of heat of passion during a sudden quarrel, culmination of quarrel into fight and not a premeditated fight. If death ensues as a result of such fight, that would come within purview of exception 4 and would enable the accused to claim that the case would fall only under section 304 (II) and not under section 302, IPC. ( 6 ) WITH the help of learned Counsel for the appellant and learned A. P. P. , we have scanned chief examination, as well as cross- examination, of P. W. 2 Bajrang and P. W. 3 kantabai and P. W. 5 Shital. We have gone through the complaint (Exh. 20 ). We have scanned the entire statement of the accused recorded under section 313 of the Code of criminal Procedure, 1973. There is not even a suggestion that, upon demand for money or liquor by the accused, and thereafter abusive verbal exchange, the victim Anil had taken any steps, or even made any gesture of assault. It appears that, feeling hurt by refusal, the accused picked up stones (3 stones together, which are said to weigh 1 kg. to 1- kg.) and hurled those at the chest of the victim. The distance being less than 15 feet, the deceased could not avoid, and the stones hit the deceased in his chest. It may be said that, element of 'sudden fight' is missing from the prosecution story. to 1- kg.) and hurled those at the chest of the victim. The distance being less than 15 feet, the deceased could not avoid, and the stones hit the deceased in his chest. It may be said that, element of 'sudden fight' is missing from the prosecution story. The defence has not been able to probabalize that, there was sudden fight between the accused and the victim. In the cross-examination, it is suggested that, the deceased suffered injuries as a result of fall. On reference to medical certificate about injuries suffered by the accused, Dr. Smt. Ranade had noticed subconjuctival haemorrage (Rt. eye ). The Medical Officer has not noticed any other signs of violence around the edges of eye pit. We are, therefore, not inclined to agree with the Medical Officer that, such injury is possible as a result of violence. But, even if it is presumed that, the accused suffered such injury in the violence, which aspect, Advocate chatterji had tried to utilise for exploring the possibility of a fight, the accused in his statement under section 313 of the Code of criminal Procedure, has narrated about the violence with P. W. 2 Bajrang, when he tried to prevent escape of the accused. The accused also admitted that, he was apprehended by ravindra and Popat on the spot. In response to question No. 32, he has said that, because he was beaten, he tried to run away, and in response to question no. 12, the accused had said that, he was beaten by Bajang. In any case, accused has nowhere claimed in the statement, that there was any assault from the victim. In the absence of 'fight' between the victim and the accused, we are afraid, the argument of Advocate Shri. Chatterji that, the case falls within purview of 4th exception to section 300 and, therefore, the offence is culpable homicide not amounting to murder, cannot be accepted. ( 7 ) ADVOCATE Shri. Chatterji has placed reliance on the recent judgment of Apex court in the matter of Shri. Vijay Kumar Vs. State, by Inspector of Police, Kanyakumari, 2005 0 AIR (SCW) 3067. ( 7 ) ADVOCATE Shri. Chatterji has placed reliance on the recent judgment of Apex court in the matter of Shri. Vijay Kumar Vs. State, by Inspector of Police, Kanyakumari, 2005 0 AIR (SCW) 3067. Having gone through the judgment, we can say that, the offence therein was held to be one under section 304 (II) in the peculiar facts and circumstances of that case and the same cannot be used as a ratio to be followed in the present matter. ( 8 ) THE appeal is, therefore, dismissed. Certified copy of this judgment should be furnished to the appellant-accused, free of costs, if necessary, through jail authorities, by the Registrar (Judicial) of this court. Appeal dismissed.