JUDGMENT : Dev Darshan Sood, J. The appellant has been convicted for committing the murder of his father deceased Nek ram. He has been sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/- and in default of payment of fine amount to undergo further imprisonment for a period of one year. The prosecution case in brief is that on 5.12.2004 Shri Chaman Lal (PW-2) was returning home from his fields at around 2.30 p.m. for lunch. When he was taking lunch, he heard cries of Nek Ram, he came out and saw that Jiya Lal-accused was having a pair of scissors in his hand and running towards the back yard of the house. Nek Ram had put one hand on his chest and other on the ground trying to support himself. Nek Ram asked him to call his (Nek Ram's) son Ram Singh. Chaman Lal then proceeded to the shop of Ram Singh and informed him that he has been called by his father and thereafter he went to his fields. When this witness returned from his fields at around 6.00 p.m., he was told by Ram Singh that his father had expired. At around 11.00 p.m., Shri Chaman Lal (PW2) telephonically informed Tula Ram (PW1) about the murder of Nek Ram, who thereafter informed the police. On the basis of which rapat, Ex. PW7/A in the daily diary was recorded in police Station Pachad. 2. The learned trial Court on the evidence of 12 witnesses produced by the prosecution and two witnesses by the defence, convicted the accused for the offence as charged. We do not intend to go into the details of the evidence as considered by the learned trial Court but re-appreciate the evidence independently. 3. We first advert to the evidence of PW-2 Shri Chaman Lal. He states that his house is near to the house of the accused. On 5.12.2004, he returned from his fields for taking lunch at around 2.30 p.m.. When he was taking lunch, he heard cries of Nek Ram. He saw accused Jiya Lal having a pair of scissors in his hand and running towards the back yard of his house. At that point of time Nek Ram had put one hand on his chest and other on the ground and was trying to support himself. He asked him to call his younger son Ram Singh. He saw accused Jiya Lal having a pair of scissors in his hand and running towards the back yard of his house. At that point of time Nek Ram had put one hand on his chest and other on the ground and was trying to support himself. He asked him to call his younger son Ram Singh. He immediately went to the shop of Ram Singh and conveyed to him that he had been called by his father. Thereafter he went to his fields. At about 5-6 p.m. when he returned from the fields, he was told by Ram Singh that his father had expired. He along with Devi Singh and Bahadur Singh sat in the passage outside the house of Nek Ram and lit a fire. On the pretext of answering the call of nature, he went away from there and at around 11 p.m., he telephonically informed PW1 Tula Ram about the entire incident. His statement u/s 164 of the Code of Criminal Procedure, Ex. PW2/A was recorded by the Magistrate in the Court. He states that he had voluntarily made this statement. Whatsoever was recorded before the Magistrate is the true state of affairs. He was cross-examined by the defence. We find there was a suggestion put to this witness that for the last 14 to 15 years, accused Jiya Lal was suffering from chronic mental affliction and illness as a result of which he suffers from fits and seizures. It was then suggested that on the fateful day also the accused was wondering around the village. Though, in cross-examination he admits a particular portion of the statement u/s 164 of the Cr.P.C. Ex. PW2/A, portion A to A as having not been stated by him. That portion reads "Nek Ram ke ghar main us vakt Ram Singh, uski mata Tara Devi bahan Dayawanti, Ram Singh ka jija Babli, Devi Chand the jo kah rahe the ki Nek Ram ko subah Jalanyege". (At that time in Nek Ram's house, Ram Singh, his mother Tara Devi, sister Dayawanti, Ram Singh's brother in law Babli, Devi Chand were present, who were saying that they would cremate Nek Ram in the morning). We will consider this part of the statement of Chaman Lal as it was emphasized that these persons were in fact present in the house but have not been examined by the prosecution as witnesses. 4. We will consider this part of the statement of Chaman Lal as it was emphasized that these persons were in fact present in the house but have not been examined by the prosecution as witnesses. 4. We now advert to the evidence of PW1 Tula Ram. He was vice president of Kotla Panjola, Panchayat. On 5.1.2004 he was present at Dulanji (Kalaghat) to perform his duty and at around 4.30 p.m. when he was returning home he came to know that Nek Ram had died. On the way Shri Daulat Ram, Pradhan of the Gram Panchayat met him to whom he informed about the death of -Nek Ram and asked him to accompany him to the house of Nek Ram. He says that both of them went there and saw the dead body of Nek Ram in the room covered with a sheet. Tara Devi, Ram Singh and his sister were sitting there. They did not enter the room but they asked about the cause of death of Nek Ram. Tara Devi told them that Nek Ram died due to heart attack. They were also informed that cremation would take place on the next day. They expressed their condolence and left for their house(s). At about 11 p.m. some unknown person rang him and enquired as to whether he was sleeping or not. He replied in the affirmative. He said that murder had taken place in the house which they had visited. He enquired from this unknown informant as to who was the person who committed the murder and he informed that it is Jiya Lal who had killed his father with a pair of scissors. He says that he had received about 20-24 telephone calls and when he attended them none had responded. During the night, he tried to contact Pradhan on telephone but he was not able to do so. In these circumstances, he called the police at around 4.30 a.m. Thereafter he was able to contact the Pradhan and called him. He accompanied at around 8 a.m. the Pradhan to the house of the deceased. The police had already reached there. The police inspected the dead body and found injury marks on the dead body at various parts particularly on chest and prepared the inquest reports Ex. PW1/A and Ex. PW1/B, which were singed by him and Pradhan Daulat Ram as attesting witnesses. The police had already reached there. The police inspected the dead body and found injury marks on the dead body at various parts particularly on chest and prepared the inquest reports Ex. PW1/A and Ex. PW1/B, which were singed by him and Pradhan Daulat Ram as attesting witnesses. He says that the police also prepared the site plan. On the spot there were chatai (mat) having blood stains and a sickle. Both the sickle and chatai (mat) were taken into possession by the police. The police also took the samples of soil from the place where the soil was scratched as also the scratched blood stained soil which had been found in the back yard of the house. Both the samples of soil were sealed with seal 'S' and taken into possession vide recovery memos Ex. PW1/E and Ex. PW1/F. The scissors was put into a cloth parcel and sealed with seal 'R' by the police and took into possession vide memo Ex. PW1/J which was signed by him as well as by Daulat Ram. He has also been cross-examined at length but we find that there was nothing in his cross-examination to efface the validity/genuineness of what he has stated in his examination-in-chief. There was a suggestion put to this witness about the political rivalry but it does not established from the record. 5. We now advert the evidence of Dr. Anuj Kumar Gupta, Senior Medical Officer, Civil Hospital, Sarahan. He found the following injuries on the dead body of the deceased: (1). A stabbed wound of size 3 cm x 3/4 cm obliquely placed on front of left side of chest Wound was 1" above and left to the Xiphi sternum with its lower end towards left and upper end over the sternum. Underlying inter costal space was also penetrated and 6th rib was cut. On dissection cut was present on pericardium and wound was extending upto cavity of left ventricle. Blood was effused in inter costal muscles of 6th space. (2) A stab wound of size 1.5 cm x 1/2 cm. into 5 cm. Transversely placed on right glutal region. Underling muscles were cut. (3) A stab wound of size 1 cm x 1/2 cm x 3 cm below injury No. 2 was present. According to him, Nek Ram had died due to haemorrhage and shock because of injury to the heart. into 5 cm. Transversely placed on right glutal region. Underling muscles were cut. (3) A stab wound of size 1 cm x 1/2 cm x 3 cm below injury No. 2 was present. According to him, Nek Ram had died due to haemorrhage and shock because of injury to the heart. His opinion was recorded in post mortem report Ex. PW4/A. He states "in my opinion person herein described died of haemorrhage and shock due to injury to heart. The probable duration between injuries and death was instantaneous and between death and post mortem was 24 to 36 hours." 6. This is the entirety of the evidence which we have to consider. The other prosecution witnesses were police officers, who recorded the first information report as also conducted the investigation. The case of the prosecution remains un-rebutted in their cross-examination. 7. Looking into the totality of the facts and circumstances of the case and the evidence on record, we find that it is basically the evidence of PW-2 Shri Chaman Lal, which would require careful scrutiny. He has seen the accused having scissors in his hand and running towards the back yard of his house. He had spoken with the deceased after the assault and before he died/collapsed, who had requested him to call his younger son Ram Singh from his shop. He was again present there during the night when Ram Singh told him that his father Nek Ram had died and thereafter he contacted PW-1 Tula Ram on telephone. We find that the suggestions which have been put to this witness that accused was not in fit mental condition to probabilise the defence of insanity. But we do not find any corroboration despite the fact that Dr. Virandra Mohan, DW-1 was also examined by the defence, who was practicing doctor of psychiatry at Dharampur. He states that the accused Jiya lal remained under his treatment during July 21,1999 to 30.7.1999, 23.8.1999 to 30.8.1999 and 16.9.1999 to 20.9.1999 as out door patient. He remain admitted in his nursing home from 21.7.1999 to 30.7.1999 and was suffering from chronic paranoid schizophrenia which is a serious mental disorder. It usually becomes a chronic disease if not treated. Even if treated it may remain only under remission and is not completely cured. It may be continuous and may be intermittent. He remain admitted in his nursing home from 21.7.1999 to 30.7.1999 and was suffering from chronic paranoid schizophrenia which is a serious mental disorder. It usually becomes a chronic disease if not treated. Even if treated it may remain only under remission and is not completely cured. It may be continuous and may be intermittent. When a person is under this disability, he cannot distinguish between right and wrong as also bad and good. He issued certificate Ex. D1 certifying the nature of the illness of the accused. We need to consider the certificate in some details for the defence of insanity. It states: It is to certify that Sh. Jia Lal son of Shri Nek Ram, R/o V. Kalaghat, PO Do Tehsil Pacchad, District Sirmaur, has been suffering from chronic schizophrenia (paranoid). He was admitted in may nursing Home on the following dates: 21.7.1999-30.7.1999, 23.8.1999 to 30.8.1999, 16.9.1999 to 20.9.1999. Sd/- Dr. Virandra Mohan, M.D. (Psy) Reg. No. 10708 Dharampur-173209, District Solan, (H.P.). In cross-examination. Dr. Virandra Mohan, DW-1 states that the accused was improving and after 20.9.1999 till 6.12.2004 he did not visit the Nursing Home for treatment. DW-2 Shri Prem Dutt has proved the compromise Ex. D2 entered into between Nek Ram and Chaman Lal. It is the carbon copy of the compromise dated 12.12.2001. An attempt was made to urge that evidence of PW-2 Shri Chaman Lal should and ought not to be accepted for the reason that he is inimical to the family of Nek Ram. We are unable to accept this submission of the defence for the reason that it is nobody's case that PW-2 Shri Chaman Lal was himself involved in killing Nek Ram deceased in any manner. 8. Learned Counsel appearing for the appellant relied upon the decision of the Supreme Court in State of Himachal Pradesh Vs. Gian Chand, AIR 2001 SC 2075 to urge that the prosecution story cannot be believed since the evidence of Shri Daulat Ram, Pradhan, Dayawanti, Tara Devi and Babli, who were present in the house of the deceased at the time/after his death has not been recorded by the prosecution. Learned Counsel submits that the Court inter alia holds: 14. Gian Chand, AIR 2001 SC 2075 to urge that the prosecution story cannot be believed since the evidence of Shri Daulat Ram, Pradhan, Dayawanti, Tara Devi and Babli, who were present in the house of the deceased at the time/after his death has not been recorded by the prosecution. Learned Counsel submits that the Court inter alia holds: 14. So far as non-examination of other witnesses and an adverse inference drawn by the High Court therefrom is concerned, here again we find ourselves not persuaded to subscribe to the view taken by the High Court. The prosecutrix P.W. 7 has stated that soon before the incident she was playing with three girl children of the same age as of hers and they were present when the accused committed rape on her. One of the girls picked up a broom and had tried to scar away the accused by striking the broom on him. This little friend of the victim had also raised a hue and cry but none from the neighbourhood came to the spot. These girls were none else than daughters other uncle. What the High Court has failed to see is that these girls were of tender age and could hardly be expected to describe the act of forcible sexual intercourse committed by the accused on P.W. 7. Secondly, these girls would obviously be under the influence of their parents. We have already noted the co-sister of P.W. 1 turning hostile and not supporting the prosecution version. How could these little girls be expected to be away from the influence of their parents and depose freely and truthfully in the Court? Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the Court levelled against the prosecution should be examined in the background of facts and circumstances of each case so as to find whether the witnesses were available for being examined in the Court and were yet withheld by the prosecution. The Court has first to assess the trustworthiness of the evidence adduced and available on record. The Court has first to assess the trustworthiness of the evidence adduced and available on record. If the Court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. However, if the available evidence suffers from some infirmity or cannot be accepted in the absence of other evidence which though available has been withheld from the Court then the question of drawing an adverse inference against the prosecution for non-examination of such witnesses may arise. It is now well settled that conviction for an offence of rape can be based on the sole testimony of prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on. 9. We cannot accept this submission for the reasons that the evidence of Daulat Ram, Pradhan would lose significance as PW-2 Chaman Lal was himself eye witness to the incident when he saw the accused having a pair of scissors in his hand and running towards the back yard of his house and saw the deceased collapsing and asking this witness to call his son Ram Singh. Dayawanti, Babli and Tara Devi being related to the accused would not in any manner improve the case of the prosecution. They were not expected to state anything against the accused. 10. Learned Counsel also relied upon the decision of the Supreme Court in Lahu Kamlakar Patil and Another Vs. State of Maharashtra, (2013) 1 ABR 633 to urge that the conduct of PW-2 Shri Chaman Lal is doubtful as this witness instead of providing the medical aid to the deceased went to call upon his son Ram Singh. The Court holds: 26. From the aforesaid pronouncements, it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a Court has to keep in mind that different witnesses react differently under different situations. From the aforesaid pronouncements, it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a Court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing of variations, then his testimony becomes questionable and is likely to be discarded. 11. We cannot accept this submission for the reasons that the deceased himself asked PW-2 Chaman Lal to call Ram Singh, who was informed about the incident by this witness. 12. We also find from the evidence that scissors Ex. P10 was recovered from the scene of occurrence and identified by PW-2 Shri Chaman Lal as the instrument which he saw in the hands of the accused while running away to the back yard of his house. In these circumstances, we do not find that any mis-appreciation of evidence by the learned trial Court. 13. On the other aspect as to whether the accused is guilty for the offence u/s 302 of the Indian Penal Code (hereinafter referred to as IPC), we cannot persuade ourselves to hold that such an offence is made out. In Salim Sahab Vs. State of Madhya Pradesh, the Court holds:-- 12. In Dalip Singh and Others Vs. State of Punjab, AIR 1953 SC 364 it has been laid down as under: 26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts. The above decision has since been followed in Guli Chand and Others Vs. State of Rajasthan, AIR 1974 SC 276 in which Vadivelu Thevar Vs. The State of Madras, AIR 1957 SC 614 was also relied upon. 13. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case, in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: 25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in-- Rameshwar Vs. The State of Rajasthan, AIR 1952 SC 54 . We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of Counsel. 14. Again in Masalti Vs. The State of Rajasthan, AIR 1952 SC 54 . We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of Counsel. 14. Again in Masalti Vs. State of U.P., AIR 1965 SC 202 this Court observed: But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. 15. To the same effect are the decisions in The State of Punjab Vs. Jagir Singh, Baljit Singh and Karam Singh, AIR 1973 SC 2407 Lehna Vs. State of Haryana, (2002) 1 JT 577 Supp and Gangadhar Behera and Others Vs. State of Orissa, AIR 2002 SC 3633 . In the present case apart from the evidence of PW 1, the evidence of PW 5, who has no axe to grind, is there. So, the plea regarding interested witnesses is without substance. 16. .... 17. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. 18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. 19. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. 19. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh Vs. State of Rajasthan, AIR 1993 SC 2426 , it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that by using the blows with the knowledge that they were likely to cause death he had taken undue advantage. The above position was highlighted in Babulal Bhagwan Khandare and Another Vs. State of Maharashtra, (2004) 10 SCALE 188 . 17. The factual scenario shows that during a quarrel between the deceased and the accused, they were grappling and during that quarrel, the accused attacked the deceased with a pair of scissors. It was not a very big-sized weapon though it was certainly having a sharp-edged point. We find that the ratio of the decision supra is squarely attracted to the present case as it was one single blow which the accused had aimed at the deceased resulting in his death. There was no premeditated intention of the accused to cause death of Nek Ram. The post mortem report also shows that two injuries were caused to the deceased. The injury which was caused by one blow on the chest of the deceased caused his death. We find that the incident took place in the heat of moment and there was no premeditated intention of the accused to cause his death. In these circumstances, we direct that the appellant/accused be convicted u/s 304 Part II IPC and he is sentenced to undergo rigorous imprisonment for eight years. We accordingly modify the sentence as imposed by the learned Court below. We direct that the accused-appellant be released from custody forthwith after having served the sentence imposed in case he is not wanted in any other case. Fine, if deposited be refunded.