JUDGMENT MR. A.L.DAVE, J. -- Present appeal challenges the judgement and order rendered by Sessions Court, Jamnagar in Sessions Case No.155 of 2002 on 31st March 2004. The appellants came to be tried by the Trial Court and came to be convicted for offences punishable under Section 302 read with Section 34 of Indian Penal Code (IPC), Section 324 read with Section 34, Section 323 read with Section 34 and Section 323 read with Section 114 of the IPC and under Section 135 of the Bombay Police Act. Both of them were sentenced to suffer imprisonment for life and to pay a fine of Rs.1,000/- each, in default, to undergo simple imprisonment for one year for the offence punishable under Section 302 read with Section 34 of IPC. For the offence punishable under Section 324 read with Section 34 of IPC, they were ordered to undergo rigorous imprisonment for two months and to pay a fine of Rs.500/- each, in default, to undergo simple imprisonment for six months. For the offence punishable under Section 323 read with Section 34 of IPC, they were ordered to undergo rigorous imprisonment for three months and to pay a fine of Rs.100/- each, in default, to undergo simple imprisonment for one month, and for the offence punishable under Section 135 of the Bombay Police Act read with Section 114 of IPC, they were ordered to undergo rigorous imprisonment for six months and to pay a fine of Rs.250/-each, in default, to undergo simple imprisonment for two months. For the offence punishable under Section 323 read with Section 114 of the IPC, they came to be acquitted. All the sentences were ordered to run concurrently. Benefit of set off was made available to the accused-convict. (1.1) During pendency of appeal, appellant No.2 - Rameshbhai Jivrajbhai expired on 11th August 2007 while in jail. None of his heirs or legal representatives have uptill now approached this Court or learned advocate for the appellants for pursuing the appeal. Under the circumstances, the appeal by appellant No.2 - Rameshbhai Jivrajbhai got abated under an order passed by this Court dated 31st March 2009. 2. The prosecution case in brief, is that appellant No.1 committed murder of Bipinbhai Babulal Rathod on 10th June 2002 at about 10:30 p.m. near Modern Garage in Green Market area of Jamnagar by causing fatal injury to the deceased with a knife. 2. The prosecution case in brief, is that appellant No.1 committed murder of Bipinbhai Babulal Rathod on 10th June 2002 at about 10:30 p.m. near Modern Garage in Green Market area of Jamnagar by causing fatal injury to the deceased with a knife. 2.1 As per the prosecution case, appellant No.1 - Jitendrabhai Jivrajbhai had borrowed Rs.1,000/-from victim Bipinbhai. On Bipinbhai demanding the money, it is alleged that appellant inflicted a knife blow in the abdomen of the victim. When he was in the course of inflicting second blow, victim tried to ward it off and in doing so, he suffered injury on his hand. It is also the case of the prosecution that, during this transaction, original accused No.2 - Rameshbhai Jivrajbhai had caught hold of the victim and that, he had also given a bite on the right cheek of the victim and thereafter, they went away. The victim engaged an auto-rickshaw and went to the hospital and gave history to the doctor. He was given requisite treatment by the doctor after recording the history in the case papers. Being a medico-legal case, information was passed over to the police, on basis of which the police arrived at the hospital and recorded the FIR of the victim, on basis of which the offence was registered. Executive Magistrate was informed for recording the dying declaration and the Executive Magistrate, after arriving at the hospital, recorded the dying declaration of the victim as well. (2.2) As per the prosecution case, the incident was witnessed by two eye-witnesses. 3. The investigating agency, after due investigation, found sufficient material against the present appellant and deceased convict Rameshbhai Jivrajbhai and therefore, filed chargesheet in the Court of the Chief Judicial Magistrate, Jamnagar, who in turn committed the case to the Court of Sessions and Sessions Case No.155 of 2002 came to be registered. (3.1) Charge was framed against both the accused at exh.8, to which both of them pleaded not guilty and came to be tried. 4. The Trial Court, after recording the evidence, found that the prosecution was successful in proving the case against the appellants and therefore, recorded conviction and passed sentence as narrated in the earlier part of this judgement. 5. We have heard learned advocate Mr. Vasavada appearing for learned advocate Mr. Thakkar for the appellant and learned Additional Public Prosecutor Mr. Maulik Nanavati for the respondent State. 6. 5. We have heard learned advocate Mr. Vasavada appearing for learned advocate Mr. Thakkar for the appellant and learned Additional Public Prosecutor Mr. Maulik Nanavati for the respondent State. 6. Learned advocate Mr. Vasavada for the appellant submitted that the prosecution has examined two eye-witnesses to the incident and none of them support the prosecution case. The case mainly depends on dying declarations made by the victim in form of history to the doctor, FIR and the dying declaration before the Executive Magistrate. The prosecution has also examined witnesses before whom the deceased is claimed to have made an oral dying declaration. Mr. Vasavada submitted that the versions emerging from these various dying declarations are self-contradictory and self-inconsistent. The dying declarations, therefore, could not have been relied upon by the Trial Court. (6.1) By way of an alternative submission, Mr. Vasavada submitted that, here is a case where the offence has occurred suddenly and without premeditation. There was a quarrel resulting into loss of self-control and the appellant inflicted knife blow. He submitted that only one knife blow is given in the lower abdomen of the deceased by the appellant which has proved to be fatal. The case, therefore, would attract provisions contained in Exception 4 to Section 300 of IPC, making the offence punishable under Section 304 Part II of IPC and not Section 302 of IPC. Mr. Vasavada, therefore, submitted that the appeal may be allowed accordingly. (6.2) Mr. Vasavada submitted further that the appellant has been in jail for a period of about seven years and seven months, considering his social background, he may be sentenced with imprisonment for the period which he has already undergone. It is submitted that during the pendency of the proceedings, he has lost his father, two brothers and mother. 7. Learned Additional Public Prosecutor Mr. Nanavati opposed this appeal. According to him, though the eye-witnesses have not supported the prosecution case, the dying declarations are all consistent with each other and they clearly implicate the appellant. Mr. Nanavati submitted that the dying declarations cannot be doubted either on test of truthfulness or its genuineness considering the evidence of the Executive Magistrate. Mr. Nanavati submitted further that it would be a misnomer to say that it is a case of single blow. Mr. Nanavati submitted that the dying declarations cannot be doubted either on test of truthfulness or its genuineness considering the evidence of the Executive Magistrate. Mr. Nanavati submitted further that it would be a misnomer to say that it is a case of single blow. It is clearly revealed from the evidence that the appellant inflicted one blow in the lower abdomen of the victim, and then, wielded the second blow, at that point of time, the victim attempted to ward off the second blow and partially succeeded in warding off the same by taking the blow on his hand, result of which was that he suffered injuries on his hand. Mr. Nanavati submitted that although the fatal injury is one, if the nature of injury is seen, it is caused with a great force. The injury has gone deep into abdominal cavity and has ruptured the large intestine, resulting into profuse bleeding and death of the victim. (7.1) Mr. Nanavati submitted that Exception 4 to Section 300 of IPC would not be attracted in the present case, as is argued on behalf of the appellant. He submitted that there is no evidence to show that there was any fight at the relevant time except at one place where the deceased in his dying declaration has stated that there was a fight, but the same victim at other place has not referred to any fight. Mr. Nanavati submitted that, that apart, when the fatal blow was given, there is no quarrel prior to it and as such, Exception 4 to Section 300 would not be attracted. He submitted that, at best, what can be attributed to the victim is that he demanded his dues from the appellant and the appellant, in absence of any other provocative act on part of the victim, committed the assault with knife and inflicted the blow. Mr. Nanavati submitted that, therefore, the alternative argument of altering the conviction from murder to culpable homicide not amounting to murder also may not be accepted, and the appeal may be dismissed. 8. We have examined the record and proceedings in context of rival sides submissions. 9. The prosecution has examined Jignaben Mukeshbhai, at exh.43 and Aslam Salimbhai, at exh.58 as eye-witnesses. Both these witnesses have not supported the prosecution and have been declared hostile to the prosecution. 8. We have examined the record and proceedings in context of rival sides submissions. 9. The prosecution has examined Jignaben Mukeshbhai, at exh.43 and Aslam Salimbhai, at exh.58 as eye-witnesses. Both these witnesses have not supported the prosecution and have been declared hostile to the prosecution. Jignaben happens to be niece of the appellant, whereas Aslambhai is working in a garage and was passing by the place of incident when the incident occurred. (9.1) The resultant effect is that the direct evidence in form of depositions of these eye-witnesses does not help the prosecution in any manner. 10. In addition to such direct evidence, the prosecution has also adduced evidence in form of dying declarations. There are various dying declarations. The first is an oral dying declaration before Maganbhai Kanjibhai Kotval, exh.59, who was on duty head constable at the hospital at the relevant time and he states that Bipinbhai Babulal, the victim told him that he had suffered injuries in a fight near Grain Market, Custom Office at about 11:00 p.m. He does not claim that the deceased disclosed name of the assailant. All that emerges from his deposition is that, according to the deceased, he suffered injuries in a fight. (10.1) Then, there is evidence of Dr. Krinal Mori, exh.75, who had treated the victim and had recorded the history given to him by the victim. In his deposition, he states that the deceased told him that he is inflicted a knife blow at about 11:00 p.m., near Grain Market on abdomen and hand. The deceased also told him that Jitendra Chauhan had inflicted this injury and had also given a bite on his cheek. According to this witness, he had recorded the history in the medical case papers, exh.76. A look at exh.76 indicates that the history was given by the patient himself to Dr. Krinal Mori. It is recorded thus: “History of assault. Stab injury by person named Jitendra Chauhan at 11.00 a.m. At Green Market today.” Exh.78 speaks of history of assault, stab injury over left lower abdomen and human bite over right cheek and stab with chakoo about 6 inches long and 1.5 inches width into left lower abdomen. (10.2) The next important witness is Dr. Gulabbhai Solanki, examined at exh.69. Stab injury by person named Jitendra Chauhan at 11.00 a.m. At Green Market today.” Exh.78 speaks of history of assault, stab injury over left lower abdomen and human bite over right cheek and stab with chakoo about 6 inches long and 1.5 inches width into left lower abdomen. (10.2) The next important witness is Dr. Gulabbhai Solanki, examined at exh.69. He has also recorded the history given by the victim which reveals that Jitendra gave the knife blow and Ramesh caught hold of the victim. 11. The Executive Magistrate, Mr. Pankaj Ichchhashanker Bhatt is examined at exh.29. In the dying declaration before him, the deceased has stated that he had demanded Rs.1,000/-from Jitendra Jivraj Chauhan, his friend, which was due from him and in response thereto, Ramesh caught hold of him and Jitendra inflicted knife blow. While Jitendra was inflicting second blow, the victim tried to ward it off and suffered injuries on his hand. The accused Ramesh gave him a bite on the cheek. This dying declaration is at exh.32. From the evidence of the Executive Magistrate, Mr. Pankaj Bhatt, it is clear that he had obtained opinion of the doctor before and after recording the dying declaration. The Executive Magistrate has, in his deposition, himself also stated that the deceased Bipinbhai was oriented and gave the statement in a satisfactory manner. Thus, the Executive Magistrate himself also verified and satisfied himself about the conscious and good state of mind of the declarant before recording the dying declaration apart from obtaining certificate from the doctor. 12. The FIR is recorded by P.S.I. Mr. Sakariya and witness Rameshchandra Tapubhai Nakhva, at exh.83 his scribe. He says that the FIR was written by him as dictated by Mr. Sakariya on basis of what was stated by Bipinbhai Babulal. He says that doctor's endorsement was also obtained about the first informant victim Bipinbhai Babulal being conscious. The same was obtained at the end of the FIR also. In that FIR, exh.84, it is stated that when he was passing by Modern Garage at about 11:00 p.m. on the day of incident, present appellant and his brother Ramesh met him. He, therefore, demanded Rs.1,000/-which was due from him. As a result, there was an altercation and Jitendra drew out a knife from his waist-band and inflicted a blow on the lower abdomen of the first informant. He, therefore, demanded Rs.1,000/-which was due from him. As a result, there was an altercation and Jitendra drew out a knife from his waist-band and inflicted a blow on the lower abdomen of the first informant. He stated that the appellant inflicted second blow, but he warded off the same with his left hand and in course of transaction, he suffered injuries on his left hand. Ramesh had caught hold of him. When the victim raised shouts, Jignaben Mukeshbhai came there to his rescue. Thereafter, both accused persons went away and he (the victim) went to the hospital for treatment. 13. From the above dying declarations, it is clear that all of them are consistent in the main, that is, alleging giving of blow by the appellant on the lower abdomen, the appellant inflicting second blow on the victim and the victim suffering injuries on his hand while trying to ward it off, second accused Ramesh catching hold of the victim and giving a bite blow on his cheek. It is, of course, true that in oral dying declaration before the police constable, the victim is claimed to have stated that he suffered injuries in a fight. But in rest of the dying declarations, the entire sequence of episode is described where there is no indication of any fight. Similarly, in dying declaration before Dr. Krinal Mori, the bite injury is attributed to the appellant - Jitendra Chauhan. However, upon perusal of the medical papers exh.76, we do not find any history recorded by the doctor, as given by the deceased to this effect. 14.The dying declaration recorded by the Executive Magistrate is recorded after following all requisite precautions and procedures. There is no reason to doubt its genuineness. So far as the truthfulness is concerned, it is consistent with other dying declarations and therefore, in our opinion, the prosecution can be said to have established involvement of the appellant in the offence, to the extent of having caused the fatal injury, injury on the hand of the deceased. The Trial Court was, therefore, right in holding that involvement of the appellant is duly proved. 15. Now comes the question whether the appellant can be said to have rightly convicted for the offence of murder. In this regard, heavy reliance is placed on Exception 4 to Section 300 of IPC. The Trial Court was, therefore, right in holding that involvement of the appellant is duly proved. 15. Now comes the question whether the appellant can be said to have rightly convicted for the offence of murder. In this regard, heavy reliance is placed on Exception 4 to Section 300 of IPC. The Exception 4 runs 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 undue advantage or acted in a cruel or unusual manner.” When a defence is raised that the case would fall under Exception 4 to Section 300 of IPC, it is the duty of the defence to show that the ingredients of the said Exception are established. 16. Upon reading Exception 4 to Section 300 of IPC, it is clear that five ingredients are required to make a case fall under the Exception. First is that the murder was committed without premeditation. Second requirement is that the murder was committed without premeditation in a sudden fight. Third requirement is that the action was in heat of passion. Fourth requirement is that the entire episode occurred upon a sudden quarrel, and last but not the least, it is required to be shown that the offender did not take any undue advantage or did not act in a cruel or unusual manner. 17. It has been vehemently contended that, as per all the dying declarations, except the FIR, the deceased and the appellant met at the place of incident by co-incidence, and on the victim demanding money, the appellant inflicted knife blow. However, in the FIR, it is indicated that the victim was called at the place of incident and when he demanded money, the appellant inflicted knife blow. Taking a liberal view of the matter, by ignoring the words stated in the FIR and accepting the words not stated in the rest of the dying declarations, even if it is inferred that the victim and the accused persons met at the place of incident by coincidence, what has transpired at the place of incident is that the deceased demanded money from the appellant which were due to him from the appellant. The appellant straightaway inflicted a knife blow, followed by second blow which the deceased could ward off and suffered injuries on his hand. At best, it can be said that there was no premeditation, but there is no evidence of any fight having taken place between the victim and the accused. The victim demands money and the appellant inflicts the blow. The reference to fight in the oral dying declaration before police constable cannot be attributed much importance in face of the remaining more descriptive dying declarations flowing from the mouth of the deceased himself and recorded in his own language, and therefore, the ingredients in form of sudden fight is missing on the record. Similarly, the question whether the accused acted in heat of passion if examined, finds no support from the evidence for the reason that the situation did not provide any platform or reason or ground for the appellant to be gripped in the heat of passion. The victim simply demanded his dues and by way of immediate reaction, a blow is given without any further fight or altercation. Similarly, for sudden quarrel, except in the FIR, there is no reference to any altercation and therefore, that element also cannot be read in the evidence. The defence has not, therefore, been able to show presence of element of sudden fight, heat of passion or sudden quarrel, as a result, it cannot be said that the case would attract Exception 4 to Section 300 of IPC. 18. It was argued that the appellant did not have any intention to commit murder of the victim and in support of it, it was argued that only one blow is given. This argument cannot be considered as an argument borne out from the record. The evidence clearly indicates that the appellant inflicted two knife blows, one fell on the lower abdomen, the other also would have fallen on other part of the body, but the deceased tried to ward it off and in doing so, he suffered injuries on his left hand. Had the deceased not tried to ward off the second blow, it certainly would have fallen on the victim. Bearing an intention is a mental process. It can be deduced from the conduct of the party. In the instant case, the appellant has given one blow on the lower abdomen with a knife. Had the deceased not tried to ward off the second blow, it certainly would have fallen on the victim. Bearing an intention is a mental process. It can be deduced from the conduct of the party. In the instant case, the appellant has given one blow on the lower abdomen with a knife. The size of the blade of knife is 6” x 1.5”. It has been inflicted with such a force that the knife went deep into the abdominal cavity, resulting into profuse bleeding and ultimate death of the victim. It was a hook blow which was given, as can be seen from the medical evidence which would carry much force and momentum. The second blow was also inflicted and in it warding off, the victim suffered injuries on his left hand, which is described in the post mortem notes thus: “4 cm stitched wound is present on left side of lower abdomen. After removal of the stitches, the wound gaping is 2 cm and wound is incised and margin. Angle is sharp cut. Peritoneal cavity deep. Direction of wound is upward and backward.” In column 23 of the post-mortem note, corresponding injuries are described thus: “[1] 3 cm long stitched wound seen on outer part of large intestine (sigmoid colon). [2] 6 cm long stitched wound seen mesentery attached with large intestine (sigmoid colon).” The post-mortem note describes injury on hand thus: “Small multiple cut wound seen on first web space of left hand.” (18.1) Thus, it is clear that the abdominal injuries have been inflicted with such force that the knife travelled deep into the cavity and caused damage to important organs. The appellant did not stop at that and inflicted another blow, which the deceased warded off. Had that not been done, it would have landed in the abdomen and would have caused another serious injury. This conduct on part of the appellant would only reflect his intention to cause death of the victim. The appellant wanted to ensure that if first blow does not yield result, the second blow would ensure the result. It is, therefore, not possible for us to accept the argument that there was no intention to cause death of the deceased. 19. The resultant effect of the foregoing discussion is that the appellant inflicted knife blows with intention to cause death of the deceased, which amounts to murder. It is, therefore, not possible for us to accept the argument that there was no intention to cause death of the deceased. 19. The resultant effect of the foregoing discussion is that the appellant inflicted knife blows with intention to cause death of the deceased, which amounts to murder. Exception 4 to Section 300 of IPC would not be attracted as the ingredients are not emerging from record. The appellant in his statement under Section 313 of the Cr.P.C., has taken no such plea, but has pleaded false involvement and innocence. 20. Learned advocate Mr. Vasavada for the appellant relied on the decision in the case of Thankachan v. State of Kerala, IAC (2005)1 158 to support his submission that as there was no intention on part of the appellant to cause death, the case would fall under Section 304 Part II of IPC and not under Section 302 of IPC. However, as discussed above, the site of injury, the force with which the injuries are caused, etc., would rule out that the appellant may have any other intention but to cause death and therefore, the judgement will be of no help to the appellant. 21. In the result, the appeal must fail. Stands dismissed. (SBS) Appeal dismissed.