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Madhya Pradesh High Court · body

2012 DIGILAW 1250 (MP)

Kedar v. State of M. P.

2012-12-04

G.D.SAXENA, S.K.GANGELE

body2012
JUDGMENT Saxena, J. -- 1. This appeal has been preferred by the accused-appellant having being aggrieved by a judgment dated 2nd June, 2005 of conviction and sentence delivered in Sessions Trial No.28/2005 by the Special Sessions Judge Shivpuri, convicting the accused for commission of murder of Smt. Vaijanti, wife of Kallu, which is an offence punishable under section 302 of IPC and sentenced him to undergo life imprisonment with a fine of Rs.5,000/- and in default of payment of fine to serve out additional six months’ simple imprisonment. However, by the same verdict, the accused stood acquitted of the charge framed for committing an offence under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity “the Act”). 2. The facts, in short, just for the decision of the case are that on 28th October, 2004 at around 12:05 p.m., complainant Vaijanti, a resident of village Rajapur accompanied with his son Ram Singh (PW6) reported the incident to the police that on the same day at around 11:30 a.m., she with other lady labourers, namely, Girija, Ginna, Sevabai, Prembai, who were engaged on daily wages, were loading the Murram (crumbling trap-stones) from the quarry on the tractor-trolley of one Bhagwan Singh, at that moment, accused Kedar Lodhi also came there. During process of the work, he passed vulgar remarks at the complainant. As she resisted from making such remarks, the accused assaulted her by the rion-rod and thereby caused injuries on head, neck and left shoulder. The incident was seen by the above lady labour-workers. Injured Smt. Vaijanti along with her son reached the Police Station Mayapur and lodged the FIR against the accused. On her report, the offence under section 307 of IPC along with other section 3(2)(v) of the Act, since the prosecutrix belonged to Scheduled Caste, was registered against the accused. The investigation was set into motion by a Sub-Divisional Officer (Police) Pichhore. During the course of her referral to the Government Hospital Pichhore, she succumbed to injuries. So, the offence under section 302 of IPC was added. The accused was arrested and on his production, a weapon of crime was seized. After investigation, the charge-sheet was filed before the criminal Court, having jurisdiction. During the course of her referral to the Government Hospital Pichhore, she succumbed to injuries. So, the offence under section 302 of IPC was added. The accused was arrested and on his production, a weapon of crime was seized. After investigation, the charge-sheet was filed before the criminal Court, having jurisdiction. On committal, the Sessions trial commenced and after recording the evidence, the present accused-appellant was convicted and sentenced for the commission of the alleged offence, hence, this appeal. 3. The contention of the learned counsel appearing for the appellant is that the judgment under appeal is against the law and procedure and therefore same is liable to be set aside. It is submitted that to prove the guilt against the accused the prosecution examined eye-witnesses, namely, Girijabai (PW1), Smt. Sevabai (PW2), Prembai (PW3), Ginnabai (PW4), Munshi (PW5), Keval (PW6), Dinanath Pal (PW7), Dr. P.K. Khare (PW8), Barelal (PW9) and Vikrant Murav (PW10), SDO (Police) Pichhore. It is submitted that the statements of above witnesses do not tally with the medical evidence and the time of death and the prosecution by the evidence of these witnesses could not be able to prove its case beyond reasonable doubts. Apart from above, all prosecution witnesses were having inimical terms with the accused-appellant and there is a considerable delay in recording the case diary statements by the I.O. It is also submitted that the eye-witnesses were either related or interested witnesses. It is further submitted that there are material contradictions and omissions in between ocular evidence of the eye-witnesses and medical evidence on the point of injuries on the body of injured. The prosecution, therefore, utterly failed to bring home charge against the accused-appellant. On the aforesaid submissions, it is prayed that by allowing the appeal, judgment under challenge may be set aside and the appellant be acquitted of the charges framed by the trial Court. 4. Per contra, the learned Public Prosecutor appearing on behalf of the respondent-State contended that the prosecution succeeded to prove the guilt against the accused by adducing evidence of eye-witnesses, dying declaration in the shape of FIR which was lodged by the deceased herself just after incident at the police station. The medical evidence also supports the ocular evidence. The doctor performed autopsy on the body of deceased found the lacerated wound on occipital and temporal bone with fractures which became fatal for her death. The medical evidence also supports the ocular evidence. The doctor performed autopsy on the body of deceased found the lacerated wound on occipital and temporal bone with fractures which became fatal for her death. The doctor opined that the cause of death is coma as a result of head injury and therefore the death of injured was homicidal in nature. Thus, as per learned Public Prosecutor, the ocular evidence is well supported by the medical evidence vis-a-vis recovery of the weapon, i.e., iron tire liver stained with human blood group “B” recovered from possession of the accused Kedar, after his arrest. Other incriminating articles seized from the spot and from body of deceased were sent to Regional Forensic Science Laboratory for their chemical examination. The report of the Chemical Examiner/Forensic Science Expert also confirmed presence of the human-blood stains on the weapon and other incriminating articles. It is, thus, argued that the prosecution by adducing evidence successfully proved the guilt of the accused and as such the learned trial Judge rightly convicted and sentenced the appellant. Accordingly, it is prayed that by dismissing the appeal, the conviction and sentence of the accused be upheld. 5. The question for consideration in this appeal is whether the ingredients of offence of murder are proved by the testimonies of eye-witnesses, medical evidence and recovery of the weapon used in crime including the motive behind the incident and/or whether the learned trial Judge has committed an illegality in placing reliance on the said materials before reaching on such conclusion. 6. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor for the respondent-State. Also perused the record of the trial Court and the law applicable to the present case. 7. To prove the guilt against the accused, the prosecution examined five eye-witnesses, namely, Girijabai (PW1), Smt. Sevabai (PW2), Prembai (PW3), Ginnabai (PW4), Munshi (PW5), Keval (PW6), Dinanath Pal (PW7), Head Constable posted in the Police Station Mayapur, who subscribed the FIR lodged by the deceased, just after incident and before her death, Dr. P.K. Khare (PW8), who performed autopsy on the dead body of Smt. Vaijantibai, Barelal (PW9) and the Investigating Officer, namely, Vikrant Murav (PW10) SDO(P) Pichhore, District Shivpuri. 8. P.K. Khare (PW8), who performed autopsy on the dead body of Smt. Vaijantibai, Barelal (PW9) and the Investigating Officer, namely, Vikrant Murav (PW10) SDO(P) Pichhore, District Shivpuri. 8. Dinanath Pal (PW7), Head Constable posted in Police Station Mayapur deposed that on 28th October 2004, Smt. Vaijantibai in an injured state along with her son Ram Singh and Kewal Kotwar of village came to the police station and lodged the report against Kedar, son of Jagat Singh Lodhi. He registered the report at Crime No.158/2004 for offence under section 307 of IPC as well as section 3(2)(v) of the Act. The report was read over to the injured Smt. Vaijantibai and thereafter she put her thumb impressions on the said report marked as Ex.P-6. After lodging the FIR, he referred the injured for her medical examination and treatment to the Community Health Centre, Pichhore. Then, he sent the copy of the FIR to the concerning criminal Court on the same day. On 29th October 2004, Constable No.919, namely, Ravikant of Police Station Mayapur produced the report (Ex.P-7) relating to death of complainant Vaijantibai, thereafter he recorded Marg Report vide Ex.P-8 and lodged Marg No.12/2004. The case diary for further investigation was handed over to SDO(P) Pichhore. On the same day, he seized the blood stained clothes of the deceased in a sealed cover from the hospital vide seizure memo Ex.P-9. In cross-examination, he admitted that distance of the spot from Police Station Mayapur is 10 kms. and she was shifted from spot to police station in a tractor-trolley. After lodging the FIR, the complainant, who was alive at that time was shifted to Community Health Centre, Pichhore, 20 kms., away from the police station. He confirmed that the FIR was lodged at the instructions of the injured/complainant and she was not unconscious at the time of lodging the report. 9. Munshi (PW5) deposed that after incident, he went to the spot and saw that his aunt Smt. Vaijanti was lying injured there. Witnesses on the spot informed that accused caused injuries on the body of his aunt Smt. Vaijanti. He shifted his injured aunt Smt. Vaijanti and other ladies in a tractor-trolley, which was driven by Shyam Bihari of the village. Thereafter, his aunt Smt. Vaijanti was brought to Police Station Mayapur, where she lodged an oral report. Witnesses on the spot informed that accused caused injuries on the body of his aunt Smt. Vaijanti. He shifted his injured aunt Smt. Vaijanti and other ladies in a tractor-trolley, which was driven by Shyam Bihari of the village. Thereafter, his aunt Smt. Vaijanti was brought to Police Station Mayapur, where she lodged an oral report. From police station to Community Health Centre, on the way, she succumbed to injuries. 10. The FIR in verbatim as lodged by the injured complainant Smt. Vaijantibai and written by a witness Dinanath Pal (PW7) in Hindi (translated in English) is as follows : “On 28th October 2004 at about 12:30 p.m. on Pathariya quarry, she and Girja, Ginna, Seva, Bhagwan Singh, were loading Murram (crumbling trap-stones) in a trolley while working as daily wage labourers. In nearby place, accused Kedar Singh, driver of tractor-trolley was there for loading Murram (crumbling trap-stones) from said quarry. Meanwhile, accused made a ridiculous remarks against her. As she objected, the accused drew the iron-rod (tire liver) from his tractor and caused injuries thereby on head, neck, left shoulder. When aforesaid Girija, Sevabai, Ginna, Prembai and Munshi intervened to save her, accused fled away from the spot. Hence, she lodged the complaint against accused for legal action.” 11. Having carefully considered the narration of the facts of FIR coupled with the evidence on record, we find that the complainant was conscious and fit to lodge the report and was oriented about the time, place and persons who were present before her and therefore if she dies subsequent to making the complaint/report to the police, her such statement can be treated as dying declaration being first information report. It may further be important to note here that where the main evidence consists of statement made by the deceased which is directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of section 32 of the Indian Evidence Act and could be treated as dying declaration being first information report. 12. In Munnu Raja v. State of M.P. [1976 JLJ 599= AIR 1976 SC 2199 ], Hon’ble apex Court held as under : “As dying declaration is Ex.P-14, being the first information report which was lodged by the deceased at the police station. 12. In Munnu Raja v. State of M.P. [1976 JLJ 599= AIR 1976 SC 2199 ], Hon’ble apex Court held as under : “As dying declaration is Ex.P-14, being the first information report which was lodged by the deceased at the police station. The learned Sessions Judge probably assumed that since the statement was recorded as a first information report, it could not be treated as dying declaration. In this assumption, he was clearly in error. After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible under section 32(1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death. The High Court has held that these statements are essentially true and do not suffer from any infirmity. It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated : {See Khushal Rao v. State of Bombay [ 1958 SCR 552 = AIR 1958 SC 22 ]}. The High Court, it is true, has held that the evidence of the two eye-witnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration.” 13. In Babu Lal v. State of M.P. [ 2004(1) JLJ 191 = AIR 2004 SC 846 ], the Hon’ble apex Court held : “9. The materials on record clearly established that the deceased was in mentally fit condition, though battered in the physical frame. The High Court has rightly held that presence of PWs 1 and 2 did not result in any presumption of tutoring, when the FIR was recorded. Merely because there was a thumb impression on the FIR, and not the signature as stated by PW1, that does not falsify the prosecution version. The same has been clarified by the High Court. The High Court has rightly held that presence of PWs 1 and 2 did not result in any presumption of tutoring, when the FIR was recorded. Merely because there was a thumb impression on the FIR, and not the signature as stated by PW1, that does not falsify the prosecution version. The same has been clarified by the High Court. It has to be noted that PW16, who had scribed the FIR, stated that the contents were read over to the deceased, who had thereafter put his thumb impression. As far as the condition of the deceased at the time of dying declaration is concerned it has been clearly established by the eye-witnesses that the declarant was in a condition to make the dying declaration. It is to be noted that at the time of dying declaration, the presence of PW2 has been clearly mentioned. The evidence of PWs 1, 2 and 3 was treated to be as partisan. Relationship is not a factor to wipe out the credibility of any witness’s evidence. The Court in a case where relatives are witnesses has to test their version on the touchstone of acceptability and credibility. If after careful analysis the evidence is found credible, it can be relied and acted upon to form the basis of conviction. {See Munshi Prasad v. State of Bihar [(2002)1 SCC 353]; Hukum Singh v. State of Rajasthan [(2000)7 SCC 410]; Bhagwan Singh v. State of M.P. [JT 2002(3) (SC) 387]}. As rightly observed by the High Court the approach is indefensible. That being the position, the evidence of eye-witnesses, which has a ring of truth deserves acceptanace, which the High Court has done.” 14. Eye-witnesses, namely, Girijabai (PW1), Sevabai (PW2), Prembai (PW33) and Ginnabai (PW4) deposed that near about 5 to 6 months ago at about 12 a.m., in noon, they and Smt. Vaijantibai as usual went to the place of quarry known as Lotan Ki Pathariya for loading Murram (crumbling trap-stones) in a tractor-trolley. Accused Kedar also reached the place along with a tractor. When they were loading trolley with crumbling trap-stones, accused Kedar put his hand and tried to press the breasts of Smt. Vaijantibai. As she objected and said to behave in such manner with his mother and sister, accused abused her by filthy words and also slept her. Accused Kedar also reached the place along with a tractor. When they were loading trolley with crumbling trap-stones, accused Kedar put his hand and tried to press the breasts of Smt. Vaijantibai. As she objected and said to behave in such manner with his mother and sister, accused abused her by filthy words and also slept her. Thereafter, accused Kedar brought an iron-rod (tire liver) from his tractor and gave a blow with it causing injuries on the neck and head and when the persons present at the scene came to rescue accused fled away from the spot. After incident Munshi (PW5) rushed to the spot on a tractor. In the meantime, tractor-trolley of Bhagwan Singh reached the place of quarry. The witnesses carried injured in the tractor-trolley to the house in the village. Then, injured was shifted to the police station in a tractor-trolley and while going to the hospital, the injured died. Kallu, husband of deceased Vaijanti had already died before the incident. The deceased had three sons, namely, Ram Singh, Kalla, Jaipal and two daughters, namely, Kaliya and Jamwanti. It is true that there are some contradictions in the case dairy statements of the witnesses aforesaid recorded during investigation but they did not affect the credibility of the witnesses. 15. Munshi (PW5) who reached on the spot just after incident deposed that 3 to 4 months ago, he was spreading the Murram (crumbling trap-stones) transported from quarry in a tractor-trolley when his aunt Smt. Vaijanti along with other ladies of village went to load the Murram (crumbling trap-stones) from quarry in a tractor-trolley. On that day, the transported Murram (crumbling trap-stones) did not reach him so he went to the place of quarry. He saw that his aunt Smt. Vaijanti was badly injured and blood was oozing out from the wounds received by her. Other ladies on the spot informed that accused Kedar bet her and caused injuries on her neck and head by iron tire liver. On her head, neck and back there was an injury. He shifted the injured in a tractor of Bhagwan Singh to the village. Other ladies of village also went with his aunt from the spot to village. From village, he and Ram Singh, son of Vaijanti shifted the injured in the said vehicle to the police station where she lodged the report. He shifted the injured in a tractor of Bhagwan Singh to the village. Other ladies of village also went with his aunt from the spot to village. From village, he and Ram Singh, son of Vaijanti shifted the injured in the said vehicle to the police station where she lodged the report. When the injured was being taken to the hospital from the police station, on the way she died. Memo of dead body of the deceased and spot map were prepared in his presence. After three days, on production of the iron tire liver by accused, same was seized vide seizure memo Ex.P-4. 16. Dr. P.K. Khare (PW8) deposed that on 28th October 2004, while he was posted as Medical Officer in the Community Health Centre, Pichhore, he conducted post-mortem on the body of Vaijanti, aged 35 years, resident of village Rajapur. Rigor mortis was set on neck. He further noticed the following during examination : “There is a lacerated wound on left occipital to parietal region of size 15 cm x 4 cm x deep to bone, bone occipital fractured, temporal fractured, which are visible easily. Huge hematoma on left parietal, occipital and right parietal region seen. Depressed fracture of posterior part of temporal bone, adjacent part of occipital and parietal bone, fracture extended to right parietal bone. Size of depressed fracture was 10 cm x 3.5 cm. He opined that cause of death was due to coma as a result of head injury, caused by hard and blunt object. Duration of death was within 12 hrs. from the post-mortem. Nature of death was homicidal. It was opined by the doctor that the head injury may be caused by one stroke of object.” 17. Because the death of person belonging to Scheduled Caste was caused by the accused who was of general caste, not belonging to member of Scheduled Caste, the offence under the Act, the investigation of the crime as per requirement of law was conducted by Vikrant Murav (PW10) SDO(P) of Pichhore. He deposed that on the day of incident on 28th October 2004 on the spot he prepared a spot map (Ex.P-2) and thereafter seized the blood stained and simple earth from the spot with broken pieces of red coloured bangles from the spot by seizure memo Ex.P-4. He deposed that on the day of incident on 28th October 2004 on the spot he prepared a spot map (Ex.P-2) and thereafter seized the blood stained and simple earth from the spot with broken pieces of red coloured bangles from the spot by seizure memo Ex.P-4. He received the report of post-mortem from the Police Station Mayapur and thereafter, added the offence punishable under section 302 of IPC. On 30th October 2004, he recorded the case diary statements of witnesses Girjabai, Ginnabai, Munshi, Ramsingh etc. He arrested accused Kedar on 31st October 2004 and in police custody, the accused informed about the weapon of crime iron tire liver which was kept in a Khaliyan nearby his house. The said information was reduced in writing vide Memorandum (Ex.P-5) and thereafter on the production of the weapon from heap of grass from his Khaliyan by the accused, same was recovered vide seizure memo (Ex.P-3). During investigation the seized articles with weapon of crime was sent through a letter (Ex.P-14) for their chemical examination to the Forensic Science Laboratory, Gwalior. 18. The report from the Chemical Examiner of Regional Forensic Science Laboratory, Gwalior dated 10th May 2005 reveals presence of blood of “B” group at Article A (iron tire liver) recovered from accused as well as the clothes of deceased (Article D-1 and D-2) sent by the Medical Officer performing post-mortem, during investigation. The blood soaked soil (Article B) was not sufficient for blood group examination. 19. Now coming to the factual aspects of the case, it appears that prosecution has beyond doubts proved the incident by dying declaration recorded in the shape of FIR, by the complainant herself which was written by Dinanath Pal (PW7), Head Constable of the Police Station Mayapur in the presence of witness Munshi (PW5). There was no proof either from medical side or from ocular side nor from the writer of the FIR to show that at the time of lodging of the FIR the complainant was not physically or mentally fit due to grave injury on her skull to lodge the report at police station. There was no proof either from medical side or from ocular side nor from the writer of the FIR to show that at the time of lodging of the FIR the complainant was not physically or mentally fit due to grave injury on her skull to lodge the report at police station. Her version as mentioned in the FIR which was written and read over to her by Dinanath Pal (PW7) is well supported by the statement of eye-witnesses Girijabai (PW1), Sevabai (PW2), Prembai (PW3), Ginnabai (PW4) and Munshi (PW5), who were admittedly being casual labourers with injured/deceased went to the spot for loading Murram (crumbling trap-stones) in a tractor-trolley. They were undoubtedly present on the spot and had seen the entire incident. The injuries caused by the accused to injured/deceased Vaijantibai was also proved by Dr. P.K. Khare (PW8), who conducted autopsy and opined that the injury on head of deceased was caused by hard and blunt object which was responsible for her death. Further, the recovery of object, i.e., iron tire liver seized from accused was found having blood stains with blood group B of the deceased. 20. Thus, on perusal of the entire evidence on record of the trial Court, it reveals that on the day of incident, deceased Smt. Vaijantibai was loading the Murram (crumbling trap-stones) on a trolley with another ladies. The accused, who was driver of another tractor-trolley on reaching passed the vulgar remarks against the complainant. As she resisted on such remarks, the accused assaultled her by tire liver iron-rod and thereby caused injuries on head, neck and left shoulder. As per ocular evidence of Girijabai (PW1), Sevabai (PW2), Prembai (PW3), Ginnabai (PW4) and Munshi (PW5) who reached just after incident, it is gathered that accused Kedar put his hand and pressed breasts of complainant Vaijantibai. As she objected and said to behave like this with his mother and sister, accused being annoyed abused and also slept her. It is alleged that thereafter accused brought an iron tire liver from the tractor and caused injuries on neck and head which resulted her death, just after sometime of incident. In that view of the matter, the accused Kedar can be held the author of causing injuries on the body of complainant Vaijantibai which resulted into her death. 21. It is alleged that thereafter accused brought an iron tire liver from the tractor and caused injuries on neck and head which resulted her death, just after sometime of incident. In that view of the matter, the accused Kedar can be held the author of causing injuries on the body of complainant Vaijantibai which resulted into her death. 21. Now, we have to consider whether the act of accused-appellant comes within the purview of culpable homicide not amounting to murder because as per his learned counsel the accused-appellant had caused the death of the deceased in a sudden and heat of passion? 22. Although we are aware of the ingredients of section 300 defining culpable homicide amounting to murder, it would be worthwhile to recollect the exception therein specially Exception 4 to section 300 of IPC which lays down when culpable homicide does not amount to murder and may be quoted for facility of reference : “Exception 4 to section 300. -- “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.” 23. In Suchand Bouri v. State of West Bengal [ AIR 2009 SC 2840 ), Hon’ble apex Court held : “9. To answer the question as to whether the offence, on the facts of the case, is “murder” or “culpable homicide not amounting to murder”, we must see whether the case is squarely covered within Clause Thirdly of section 300, IPC or the accused is entitled to the benefit of Exception 4 of section 300, IPC. 10. It would be preposterous to assume any proposition in law that in a case of solitary blow on a vital part of the body that results the death, the offence must necessarily be reduced to culpable homicide not amounting to murder. 10. It would be preposterous to assume any proposition in law that in a case of solitary blow on a vital part of the body that results the death, the offence must necessarily be reduced to culpable homicide not amounting to murder. Legal position has been most appropriately summed up, which has now become a classic statement with regard to exposition of section 300 “Thirdly”, by Vivian Bose, J., in Virsa Singh v. State of Punjab [ AIR 1958 SC 465 ], Vivian Bose, J., analysed section 300 “Thirdly” by laying down that the prosecution must prove the following facts before it can bring a case under section 300 “Thirdly”: “First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; these are purely objective investigations; Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender”. Learned Judge further went on to observe. “Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under section 300 “thirdly”. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficeint to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.” 11. The tests laid down by this Court in Virsa Singh have been consistently followed by the Courts as providing the guidelines when an issue regarding the nature of offence whether murder or culpable homicide not amounting to murder is raised before the Court. 12. The determinative factor in section 300 “Thirdly” is the intentional injury which must be sufficient to cause death in the ordinary way of nature. It is immaterial whether the offender had knowledge that an act of that kind will be likely to cause death. The offender’s subjective knowledge of the consequences is irrelevant. The result of the intentionally caused injury must be viewed objectively. To find out whether the offender had intention to cause such bodily injury which in the ordinary course of nature was sufficient to cause death, the diverse factors need to be kept in mind such as : the force with which the blow has been dealt with, the type of weapon used, the vital organ or the particular spot of the body targeted, the nature of the injury caused, the origin and genesis of the crime and the circumstances attendant upon the death. {Jagrup Singh v. State of Haryana [ AIR 1981 SC 1552 .3;] and Ramashraya and another v. State of M.P. [ (2001)3 SCC 439 ]}. 15. {Jagrup Singh v. State of Haryana [ AIR 1981 SC 1552 .3;] and Ramashraya and another v. State of M.P. [ (2001)3 SCC 439 ]}. 15. For the invocation of Exception 4 to section 300, IPC, it has to be probabilised by the defence that the death is occurred : (1) in a sudden fight; (2) without pre-meditation; (3) the act was committed in a heat of passion; and (4) the offender had not taken any undue advantage or acted in a cruel manner. The existence of all the four requisites must be probabilised. In absence of existence of any of the four requisites, Exception 4 has no application. By means of judicial decisions, the expression “sudden fight” occurring in Exception 4 of section 300, though not defined, has been explained. “Sudden fight” implies mutual provocation; a bilateral transaction in which blows are exchanged, the fight is not per se palliating circumstance, only an unpremeditated fight is such. The expression “heat of passion” has been explained by the Courts to mean that there is no time for passion to cool down. The act must have been committed in a fit of anger. Unfortunately, in the present case none of the four requisites of Exception 4 exists much less all the four requisites. The instant case is not a case of sudden fight nor the act can be said to have been committed in a heat of passion. As a matter of fact, the appellant had a pre-existing malice against the deceased. The appellant is not at all entitled to the benefit of Exception 4.” 24. No doubt, the evidence on record is suggestive of the fact that the accused had used excessive force against deceased by causing injury with the weapon on a vital part, may be more than once. However, taking an overall picture, we cannot say beyond doubt that the appellant acted in a cruel or atrocious manner by attacking the deceased. We are, therefore, not inclined to deprive the appellant of the benefit of Exception No.4. However, taking an overall picture, we cannot say beyond doubt that the appellant acted in a cruel or atrocious manner by attacking the deceased. We are, therefore, not inclined to deprive the appellant of the benefit of Exception No.4. At the same time, we are of the view that it would be appropriate to convict him under Part I of section 304 of IPC because having regard to the gravity of the injury caused with such a heavy weapon, which was fatal, the appellant must be imputed with the intention to cause such bodily injury as was likely to cause death, if not the intention of causing death. 25. Resultantly, by altering the conviction and sentence from section 302 to section 304 Part I of IPC, we convict the appellant under section 304 Part I of IPC and we are further of the view that in the circumstances, a sentence of ten years’ RI and a fine of Rs.25,000/- (Rs. Twenty five thousand only) in addition to the fine amount of Rs.5,000/- (Rs. Five thousand only) imposed by the trial Court would be sufficient. In default of payment of fine, appellant shall suffer additional simple imprisonment of six months. It is also made clear that under section 421(1) of CrPC, the fine amount, as imposed above on the accused, if not deposited within a period of three months from the date of pronouncement of the judgment, same shall be realized from the movable/immovable properties of the convicted accused named above. Under section 357 of CrPC, we further direct that on recovery of fine amount, same by way of compensation shall be awarded to the legal hairs of the deceased during the course of two months from the date of realization of fine amount. 26. In the result, the appeal stands allowed in part as mentioned above.