Judgment 1. Heard Mr. Rivankar, learned Public Prosecutor for the petitioner, Ms. Collasso, learned Counsel for the respondents and Ms. Matkar, learned Amicus Curiae. 2. Rule. Rule made returnable forthwith. By consent heard forthwith. 3. By this Revision Application, the State has prayed for quashing and setting aside the Order dated 13/08/2013 passed by the learned Additional Sessions Judge, Mapusa, Goa in Sessions Case No. 43 of 2013. 4. Charge sheet was filed by Pernem Police against the respondents (accused persons) for offence punishable under Section 302 r/w Section 34 of Indian Penal Code (I.P.C.) alleging that on 31/03/2013 between 13.30 hours to 14.30 hours at Naphale, Nanachepani, Varkhand, Pernem, Goa, the accused persons, in furtherance of their common intention, assaulted Shri Sadanand Thakur with wooden danda and laterite stone, due to previous enmity over the issue of sharing of ancestral landed property and ancestral house and thereby caused serious injuries on his body which resulted into his death on the spot. Upon committal of the case, the same was registered before the Sessions Court as Sessions Case No. 43 of 2013. 5. Upon hearing the learned Public Prosecutor and the learned Counsel for the accused persons, the Additional Sessions Judge opined that the incident had taken place in a sudden fight and on the spur of moment and that the accused persons had no intention to cause death of their brother/brother-in-law and they can be presumed to have assaulted him, with knowledge that their acts are likely to cause his death, but without any intention to cause death or such bodily injury as was likely to cause death. Learned Additional Sessions Judge directed that charge be framed against both the accused persons for offence of culpable homicide not amounting to murder, under Section 304 Part II, r/w. Section 34 of I.P.C. Benefit of exception 4 to Section 300 of I.P.C. was given to the accused persons. 6. Aggrieved by the above order, the State has filed the present Revision Application. 7. The learned Public Prosecutor submitted that the deceased and accused no.1 are brothers and accused no. 2 is the wife of accused no.1 and there were disputes between the deceased and the accused persons on account of ancestral house and property. He read out the statements of various witnesses. 7. The learned Public Prosecutor submitted that the deceased and accused no.1 are brothers and accused no. 2 is the wife of accused no.1 and there were disputes between the deceased and the accused persons on account of ancestral house and property. He read out the statements of various witnesses. One witness namely Ravikant Naik has stated that Sadanand Thakur (deceased) had told him that Eknath Thakur and his wife (accused persons) have threatened to kill them on several occasions in the past. He pointed out that the statements of Sushanti Mavlankar, Preeti Malingkar and Reshma Anurlekar reveal that the accused persons and their daughter were in their cashew property, adjacent to the cashew plantation called 'Nephale' where the dead body of the deceased was found, at about 12.00 hours, on 31/03/2013. According to the daughter of the accused persons, her parents were in their cashew property till about 2.30 p.m. Learned Public Prosecutor also pointed out from the statement of Krishna Bhagat that the deceased was alone in the cashew plantation 'Nephale' at about 1.15 p.m. and at around 2.10 p.m. the dead body of the deceased was seen by him in the same plantation. Learned Public prosecutor invited my attention to the Panchanama of scene of offence wherein it is mentioned that the scene of offence is located at isolated place in the cashew plantation at Nephale, Nanyachepani, Varkhand belonging to Bhagat. He further pointed out that as per the Memorandum of Autopsy as many as 15 injuries were sustained by the deceased and that first two injuries were fatal and that the deceased had died on the very day of the incident. He submitted that the Sessions Court formed an opinion that Section 304, Part II is applicable instead of section 302 of I.P.C., though there was no eye witness to the incident. He submitted that though the accused persons had also sustained injuries, the question whether exception 4 to Section 300 of I.P.C. is applicable or not is a question of fact which has to be determined on merits. He relied upon the judgment of the Hon'ble Apex Court in the case of “Smt. Sandhya Jadhav v/s. State of Maharashtra”, reported in (2006) 4 SCC 653 . 8. On the contrary, Ms. Collasso, learned Counsel for the accused persons, submitted that there are various circumstances which constitute a sudden fight, in the heat of passion. He relied upon the judgment of the Hon'ble Apex Court in the case of “Smt. Sandhya Jadhav v/s. State of Maharashtra”, reported in (2006) 4 SCC 653 . 8. On the contrary, Ms. Collasso, learned Counsel for the accused persons, submitted that there are various circumstances which constitute a sudden fight, in the heat of passion. She submitted that the intention to cause death has to be gathered from various circumstances like the nature of weapon used; whether the weapon was carried by the accused or was picked up from the spot; whether the blow was aimed at any vital part of the body; the amount of force employed in causing injury; whether there was sudden quarrel or sudden fight or free fight; whether there was any premeditation; whether there was prior enmity; whether there was grave and sudden provocation, etc.. She submitted that there was no planning or premeditation on the part of the accused persons when they had gone to the cashew plantation. She submitted that if accused persons had intention to kill the deceased, then they would have carried with them better weapon than a wooden danda. She submitted that the evidence on record does not reveal use of any stone. She also submitted that the fact that both the accused persons had sustained injuries and that the accused no. 2 had sustained more injuries, prima facie, reveals that there was a fight between the two parties which unfortunately led to the death of the deceased. She submitted that there is no sufficient material on record to establish the ingredients of murder. She therefore submitted that the learned Additional Sessions Judge has rightly ordered framing of charge for offence under Section 304 Part II r/w. Section 34 of I.P.C. and there is no scope for interference with the impugned order under the revisional jurisdiction. 9. Ms. Matkar, learned Amicus Curiae, submitted that the accused no. 2 who is woman had sustained as many as 13 injuries, caused by impact with blunt and rough object, from which it can be presumed that initially there was fight between the deceased and the accused no. 2. She further submitted that since both the accused persons have sustained injuries, it can be presumed that the accused no. 1, being the husband of accused no. 2 had come for her rescue and there was fight between the deceased and the accused persons. 2. She further submitted that since both the accused persons have sustained injuries, it can be presumed that the accused no. 1, being the husband of accused no. 2 had come for her rescue and there was fight between the deceased and the accused persons. She pointed out that according to Pundalik Thakur, the brother of the accused no. 1, he had received a phone call on his mobile from the accused no. 1 on 31/03/2013 at around 14.30 hours saying that there was fight between him and deceased over the issue of property dispute at the cashew plantation at Nephale. Thus, according to Ms. Matkar, based on the evidence on record, the learned Additional Sessions Judge has rightly held that exception 4 to Section 300 of I.P.C. was applicable to the present case. 10. I have perused the case papers made available to me by the learned Public Prosecutor. I have considered the submissions made by the learned Counsel for the parties. 11. It can be said undoubtedly that there is prima facie evidence to establish that both the accused persons had caused death of the deceased. The question is whether the act of the accused persons amounts to murder or culpable homicide not amounting to murder. Exception 4 to Section 300 of I.P.C. says that 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. 12. It is seen from the impugned order that the learned Sessions Judge has observed that there are materials on record indicating that there was property dispute between the accused no.1 and his brother Sadanand Thakur and it was argued by the learned Counsel for the accused persons that when the deceased had seen the accused no. 2 in the property he abused her and tried to molest her and it is then that the accused no. 2 pushed Sadanand Thakur who fell on the ground. It can therefore be said that the learned Additional Sessions Judge while considering the prima facie material on record took into account the defence which was put forth by the learned Counsel appearing on behalf of the accused persons, which otherwise is not borne out from the records. 2 pushed Sadanand Thakur who fell on the ground. It can therefore be said that the learned Additional Sessions Judge while considering the prima facie material on record took into account the defence which was put forth by the learned Counsel appearing on behalf of the accused persons, which otherwise is not borne out from the records. The stage of trial is yet to come and the defence would come at that stage. 13. It is further seen that without giving any appropriate reasons, the learned Additional Sessions Judge has opined that the incident took place in a sudden fight and in the spur of moment and that the accused persons can be presumed to have assaulted the deceased with knowledge that the acts are likely to cause his death but without intention to cause death or such bodily injury as was likely to cause death. While forming such opinion or while presuming the above facts, the learned Additional Sessions Judge did not consider various factors. The postmortem examination report in respect of the deceased reveals that he had sustained as many as 15 injuries out of which two were fatal namely the first one being 'Y' shaped contused laceration of 3 x 2cm, over left side forehead, just at hairline (i.e. at left frontal eminence) and the second one being contused laceration of 3 x 3cm. over left parietal region, with underlying damage to the brain. There was fracture dislocation of C4-C5 vertebrae. The death was caused on the very day of the incident. The nature of injuries, prima facie, reveal that there was intention to kill the deceased. There is evidence on record to establish that there was enmity between the accused persons and the deceased over the issue of sharing of the ancestral property and the ancestral house. In his statement, Mr. Ravikant Naik has stated that on several occasions the deceased had told him that his brothers were harassing him over the share in the property and that the deceased had mentioned to him that the accused persons had threatened to kill him on several occasions, in the past. The panchanama of the scene of offence reveals that the spot of incident was at an isolated place in the cashew plantation. The panchanama of the scene of offence reveals that the spot of incident was at an isolated place in the cashew plantation. In the case of “Smt. Sandhya Jadhav” (supra), it has been held that for bringing in operation exception 4 to Section 300 of I.P.C., it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. Evidence has to be led for establishing said facts. In the present case, there is prima facie evidence showing that the deceased was alone in the cashew plantation which was an isolated place. The accused persons were two in number and the allegation is that they assaulted the deceased with danda and stone. The serious assault is on vital parts of the body. The wooden danda as well as the laterite stone, both having blood stains, have been attached from the scene of offence at the time of Panchanama of scene of offence. In my view, there was no material on record at the stage of framing of charge to hold that the incident had taken place in the sudden fight and in the spur of moment. Merely because Pundalik, the brother of the accused no. 1 stated that his brother had phoned him and informed that there was a fight between him and the deceased over the issue of property dispute, that is not sufficient at this prima facie stage of framing of charge to hold that exception 4 to section 300 is applicable to the case. The said point as to whether the act of the accused persons amounts to murder or to the offence under Section 304 of I.P.C., ought to have been decided on merits and charge should have been framed for the offence of murder. 14. In view of the above, the impugned order deserves to be set aside and the learned Additional Sessions Judge should frame charge for the offence under Section 302 r/w. Section 34 of I.P.C. against both the accused persons. 15. In the result, the Revisions Application is allowed. (a) The impugned order is quashed and set aside. 14. In view of the above, the impugned order deserves to be set aside and the learned Additional Sessions Judge should frame charge for the offence under Section 302 r/w. Section 34 of I.P.C. against both the accused persons. 15. In the result, the Revisions Application is allowed. (a) The impugned order is quashed and set aside. (b) The learned Sessions Judge shall frame charge against the accused persons for the offence punishable under Section 302 r/w Section 34 of I.P.C. and shall proceed with the case, in accordance with law. 16. Rule is made absolute in the aforesaid terms and Revision Application stands disposed of accordingly.