JUDGMENT Sanjay Karol, J. Appellant-convict Suren Pal, hereinafter referred to as the accused, has assailed the judgment dated 30.4.2008, passed by the Presiding Officer, Fast Track Court, Hamirpur, Himachal Pradesh, in Sessions Trial No.12 of 2007, titled as State of H.P. v. Suren Pal and another, whereby he stands convicted of the offence punishable under the provisions of Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs. 25,000/- and in default thereof to further undergo rigorous imprisonment for two years. 2. It is the case of prosecution that on 20.12.2007 at about 7.30 p.m., Pardeep Kumar (deceased) alongwith Suresh Kumar @ Bittu came to the shop of Pawan Kumar (PW-2), where Sanjay Kumar (PW-1) was sitting with his brother Bachhittar Singh. After shaking hands with him, Suresh Kumar and Pardeep Kumar left the shop from the back door and went towards the pond, where, Sunil Kumar @ Sillu, Vikram Singh @ Mouni, Virender Kumar (PW-4) @ Dimpy and accused Suren Pal were sitting. Deceased shook hands with all, except for accused Suren Pal. At that accused asked the deceased “son, how are you”. Deceased objected to the manner in which he was addressed and advised to speak in a decent manner, as he was elder in age, at which accused abused and tried to physically assault the deceased. Accused pounced upon the deceased and also scratched his body. However, deceased was rescued by the persons present on the spot. After some time deceased left the pond towards the shop of Pawan Kumar. However, from behind, accused came and gave a blow with a Khukhri (Ex. P-7) on the vital part of the deceased. Also, Pawan Kumar, Sanjay Kumar, Surinder (PW-3) and Virender (PW-4) saw the accused, after giving blow with a Khukhri, fleeing away from the spot. Leela Devi (PW-6), mother of the deceased, was informed. With the help of persons present on the spot, she took the deceased in a vehicle, driven by Raj Kumar (PW-7), to the hospital, where he was declared having brought dead. 3. Police was informed about the incident and DD Entry (Ex.PW-14/A) recorded. Leela Devi (PW-6), mother of the deceased, was informed. With the help of persons present on the spot, she took the deceased in a vehicle, driven by Raj Kumar (PW-7), to the hospital, where he was declared having brought dead. 3. Police was informed about the incident and DD Entry (Ex.PW-14/A) recorded. Investigating Officer Guler Chand (PW-24) reached the spot, where he recorded statement (Ex.PW-1/A) of Sanjay Kumar (Pw-1), under the provisions of Section 154 of the Code of Criminal Procedure, which was carried by police official Vinod Kumar (PW-18), on the basis of which Fauza Singh (PW-19), recorded FIR No.312, dated 20.7.2007 (Ex. PW-19/A), under the provisions of Section 302 of the Indian Penal Code, at Police Station Hamirpur, District Hamirpur, Himachal Pradesh. Postmortem of the dead body was got conducted from Dr. Rajiv Sood (PW-21), who issued postmortem report (Ex. PW- 21/D) and opined the deceased to have died on account of lung injury leading to excessive haemorrhage and shock. The opinion was based on the report (Ex.PW-15/C) obtained from the Forensic Science Laboratory, Junga, issued by Dr. Gian Thakur (PW-20). Disclosure statement made by the accused (Ex. PW-8/A), recorded in the presence of independent witnesses Desh Raj (PW-8) and Roshan Lal (PW-9), led to recovery of weapon of offence (Ex.P-7) from the truck of Roshan Lal, also an employer of the accused, in the presence of the Investigating Officer as also HC Charanjeet Singh (PW-13). Investigation was conducted on the spot in the presence of Sanjeevan Patial (PW-11), Shiv Prakash (PW-22). Photographs of the spot of crime were taken by Shiv Prakash (PW-22). Investigation also revealed that immediately after the incident, from the cell phone belonging to Kamal Kumar (PW-5), accused had telephonic conversation with one Sonu, admitting having stabbed the deceased. With the completion of investigation, which revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 4. Accused Suren Pal and his co-accused Pankaj were charged for having committed an offence punishable under the provisions of Section 302 of the Indian Penal Code to which they did not plead guilty and claimed trial. 5. 4. Accused Suren Pal and his co-accused Pankaj were charged for having committed an offence punishable under the provisions of Section 302 of the Indian Penal Code to which they did not plead guilty and claimed trial. 5. In order to establish its case, prosecution examined as many as 24 witnesses and statements of accused Suren Pal and his co-accused Pankaj, under the provisions of Section 313 of the Code of Criminal Procedure were also recorded, in which they took plea of false implication. 6. Believing the testimonies of eye-witnesses and the material on record, trial Court convicted accused Suren Pal (present appellant) of an offence punishable under the provisions of Section 302 of the Indian Penal Code and sentenced him as aforesaid. Hence, the present appeal by accused Suren Pal. Accused Pankaj stands acquitted as is evident from order dated 30.4.2008, so passed by the trial Court. 7. Assailing the judgment, Mr. Anup Chitkara, learned counsel for the accused, has made limited submission. According to him, case for conviction falls under the provisions of Section 299, punishable under Section 304 of the Indian Penal Code and not Section 300, punishable under Section 302 of the Indian Penal Code. With this limited submission, so made at the Bar, we proceed to examine the prosecution case. 8. Identity of the deceased is not in dispute. Presence of the accused, deceased and the witnesses on the spot has not been disputed before us. That deceased died on account of blow given with a Khukhri (Ex. P-7), by accused, is also not disputed before us. 9. Dr. Rajiv Sood (PW-21), who conducted the post-mortem and issued post-mortem report (Ex. PW-21/D), on physical examination, found following injuries on the body of the deceased : “There was 4 cm long and 0.5 cm superficial lacerated wound extending from left ear towards left cheek. Another lacerated wound near left eye brow 2 cm and 0.5 cm deep irregular with everted edges with dark brown blood. Temperature of the body was equal to surroundings. Cadaveric lividity seen on the extensor surface of upper limbs and flexer surface of lower limbs. Rigor mortis in the larger joints. There was deep sharp incised wound measuring 4 cm long and 2 cm broad 8 cm below the C7 cervical spine towards right side 3 cm lateral to the spine. Temperature of the body was equal to surroundings. Cadaveric lividity seen on the extensor surface of upper limbs and flexer surface of lower limbs. Rigor mortis in the larger joints. There was deep sharp incised wound measuring 4 cm long and 2 cm broad 8 cm below the C7 cervical spine towards right side 3 cm lateral to the spine. It was examined with the help of magnifying glass, showing sharp clean edges with inversion of edges to inside showing entry point with clotted and semiclotted blood around the edges and blood had also accumulated on the table around 1 litre of blood dark brownish semiclotted blood on the table. On opening the chest cavity, the entry wound was becoming narrow and had cut mark on the 4th rip and had punctured the pleura and lung. There was 2.5 cm long and 1.5 cm broad wound in the lung in the middle segment which was 5 cm deep. All muscles including skin showed sharp edges.” Pleural and chest cavity containing dark brownish blood semiclotted (quantity around 2.5 litres). No foreign body seen. Heart and pericardian was normal. It was injury in the pulmonary vessels. Left lung was normal. Cause of death is opined to be long injury leading to excessive haemorrhage and shock. In the opinion of the doctor, weapon of offence, i.e. Khukhri (Ex. P-7) is dangerous and injury caused with the same was sufficient to cause death in the ordinary course of nature. The doctor opined the cut marks on the clothes (Ex.P-3 and Ex. P-4) of the deceased to be corresponding with the injury sustained by the deceased. According to the doctor, lungs are vital part. Significantly, we find this witness not to have been cross-examined on vital points. 10. Thus, according to the doctor, injury was on the vital part of the body, which was fatal and led to the death of the deceased. 11. Virender Singh (PW-4), who witnessed occurrence of the crime, has deposed that on 20.7.2007 at about 7.30 p.m., he alongwith accused Suren Pal, Sunil Kumar and Vikram Singh was sitting on the stairs of the pond, which is situated behind the shop of Pawan Kumar (PW-2), where deceased and Surinder Kumar (PW-3) came from the back door of the shop. They shook hands with all, but however, accused did not shake hands with the deceased. They shook hands with all, but however, accused did not shake hands with the deceased. Accused asked the deceased “son, how are you”, at which, deceased told the accused to speak in a decent manner, as he was elder to him. Accused abused the deceased in a filthy language and pounced upon him and scratched his face. Thereafter, both deceased and the accused caught each other from the neck but were separated by the persons sitting there. After some time, when Surinder Kumar started returning to the shop, accused again started quarrelling with the deceased and tried to catch hold of him, however, deceased managed to escape and cried “save me save me”. Hearing the same Sanjay Kumar (PW-1), who was sitting in the shop came out. Accused ran after the deceased and after giving blow with the weapon ran away. When deceased was about to fall, Sanjay Kumar and Surinder Kumar caught him. Mother of the deceased was informed. She came and with the help of Surinder Kumar and Patwari took the deceased to the hospital. 12. We find version of Virender Singh (PW-4) to have been materially corroborated by Sanjay Kumar (PW-1), who states that when Pradeep (deceased) reached near him, accused Suren Pal gave him a blow from behind. This witness as also the other witnesses present on the spot, initially supported the deceased and ensured prompt medical treatment. His testimony evidently reveals the criminal intent and conduct of the accused of having given a blow, with a sharp-edged weapon, from behind, on a vital part of the body, and thereafter having run away from the spot. Evidently, after the deceased returned from the pond, there was no provocation of any sort from his side. These facts also stand corroborated by witnesses, namely Pawan Kumar (PW-2) as also Surinder Kumar (PW-3). In fact Surinder Kumar further clarifies that accused uttered filthy language at the deceased. He does state that an altercation took place between the accused and the deceased, but then clarifies by stating that “thereafter accused paunced (sic: pounced) upon the deceased and gave a scratch blow with hand on his face and the deceased received bruises/abrasions on his face”. The witness clarifies that after giving blow from behind, with a sharp-edged weapon, accused ran away from the spot. 13. The witness clarifies that after giving blow from behind, with a sharp-edged weapon, accused ran away from the spot. 13. We are of the firm view that initially it was the accused, who provoked the deceased, without any sufficient cause. It appears, he came prepared with a predetermined mind. Thus, he said “son how are you”. Some altercation may have taken place between the parties, but nevertheless matter stood settled. Only when deceased left the pond, accused came from behind, and without any provocation or sufficient cause, gave a blow with a sharp-edged weapon, on the back of the deceased. This act and conduct of the accused, purely establishing his criminal intent, cannot be said to have been committed on the spur of the moment. None of the witnesses have deposed about any provocation on the part of the deceased. Accused was conscious of the weapon he was using and the part of the body, which was vital, where he gave the blow. He was conscious of the consequences of his action. Not only that, his subsequent conduct of fleeing away from the spot only reveals his intent of committing the crime, which he stands charged for. 14. Further, from the testimony of Kamal Kumar (PW-5), it is evident that accused made a call and informed that he had stabbed someone. 15. Mother of the deceased, Leela Devi (PW-6) has only corroborated the version of Surinder Kumar (PW-3) and the spot witnesses with regard to assault. 16. Further, we find that accused also took away the weapon of offence from the spot of crime and hid it in the Truck owned by Roshan Lal (PW-9). Based on his disclose statement (Ex. PW-8/A), so witnessed by Desh Raj (PW-8), police effected recovery thereof, in the presence of the said witness as also the accused. 17. We need not discuss testimonies of other police officials, in view of limited submissions made on behalf of the accused, save and except, that the Investigating Officers (PW-23 and PW-24) have proved the prosecution case of having conducted the investigation on the spot, collected incriminating material during the course of investigation and presented challan, evidencing guilt of the accused. 18. Sections 299 & 300 of the Indian Penal Code, reads as under : “299. Culpable homicide. 18. Sections 299 & 300 of the Indian Penal Code, reads as under : “299. Culpable homicide. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.—Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.—The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.” “300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception I-When culpable homicide is not murder-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Exception I-When culpable homicide is not murder-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos :-- First-That the provocations not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly-That the provocations not given by anything done in the lawful exercise of the right of private defence. Explanation-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.” We do not find the present case to fall under any one of the exceptions. 19. To us, it is a case of preplanned and premeditated murder. It is not the case of any of the parties that deceased had gone to the pond, carrying any weapon with himself, with an intent of picking up a quarrel or fight, with the accused or for that matter anyone else. He went unarmed, shook hands with everyone. On the other hand, accused misbehaved with him; abused him; fought with him; and attacked him with a sharp-edged weapon. The fact that accused was carrying a weapon with himself is also reflective of his criminal intent. It has come on record that the weapon (Ex. P-7) of offence was 10.5 inches long. Blow was given on the vital part of the body. 20. Thus, the Court below rightly appreciated the evidence and the material so placed on record, while holding the accused guilty of the charged offence and sentencing him to undergo imprisonment, in accordance with law. There is neither any illegality nor any perversity with the same. Thus, holistically viewing the entire circumstances, we are also of the firm view, he rightly stands convicted for the charged offence and deserves no leniency. 21. In the given facts and circumstances, we find that prosecution has been able to establish, beyond reasonable doubt, the guilt of the accused, in relation to the charged offence. Thus, holistically viewing the entire circumstances, we are also of the firm view, he rightly stands convicted for the charged offence and deserves no leniency. 21. In the given facts and circumstances, we find that prosecution has been able to establish, beyond reasonable doubt, the guilt of the accused, in relation to the charged offence. Contention so raised on behalf of the accused that case does not fall under any of the clauses of Section 300 of the Indian Penal Code, is untenable on facts and law. The intent, act and conduct of the accused is evidently clear. To contend that accused was not aware of the vital part of the body or the consequences of the blow which he had given, considering the age and the background from which he comes, cannot be accepted. Clearly, intention was to cause death, with full preparation and the act cannot be said to have been performed on the spur of the moment. 22. To contend that accused was not prevented by either of the persons present on the spot, to say the least is misconceived, for it is case of all the witnesses that after the deceased had left the pond, without any provocation, accused came and gave a blow from behind with a sharp edged weapon. 23. Our attention is invited to the decisions rendered by the apex Court in Surendra Singh alias Bittu v. State of Uttranchal, (2006) 9 SCC 531 , State of U.P. v. Hari Om, (1998) 9 SCC 63 ; Tholan v. State of T.N., (1984) 2 SCC 133 ; and Subramani v. S.H.O. Odiyansali, (2011) 14 SCC 454 . 24. It is a settled principle of law that each case has to be considered on the given fact and circumstances. Facts of Tholan (supra), are squarely distinguishable, unlike the instant facts, where accused had no quarrel or dispute with the deceased. It was an incident, which took place on the spur of the moment. Thus, in the given facts and circumstances, considering the accused to have given a single blow, the judgment of conviction and sentence was modified to that of culpable homicide not amounting to murder. 25. Similarly in Surendra Singh (supra), the apex Court was dealing with a case where two accused persons stood acquitted and the blow was given by the convict at the spur of the moment. 25. Similarly in Surendra Singh (supra), the apex Court was dealing with a case where two accused persons stood acquitted and the blow was given by the convict at the spur of the moment. Also it has come on record that scuffle took place on the spot between the parties. 26. In Hari Om (supra), the Court was of the view that the situs of injury could not have been fixed by the accused so as to infer conclusively of his intent to cause injury which had actually been caused. Also, there was some property dispute between the parties. 27. Decision in Subramani (supra) is not relevant in the given facts and circumstance, as the accused was charged and convicted for homicide not amounting to murder. 28. In our considered view, prosecution has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, not only ocular but also corroborative, in the shape of recovery of weapon of offence. 29. For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeal is dismissed. Appeal stands disposed of, so also pending application(s), if any.