JUDGMENT K.U. Chandiwal, J. 1. In Sessions Case No. 108/2010, appellant Rajesh was convicted for offense under Section 302 of IPC, to undergo rigorous imprisonment for life and to pay fine of Rs. 500/- with default stipulation; and for offense under Section 452 of IPC, to undergo rigorous imprisonment for three years and to pay fine of Rs. 300/-; in default, rigorous imprisonment for one month, recorded by order dated 30th August, 2011, by learned Additional Sessions Judge, Dhule. The conviction and sentence is questioned. The appeal is admitted on 20th Dec, 2011. Heard. 2. FACTS: (a) Kamalbai Chatre, P.W. No. 1, has three daughters; Amruta, Laxmi and Kamini. The accused/appellant was married to Kamini, however, the marriage could not sail well and there was a divorce in Diwali, 2009. Inspite of divorce, the appellant was loitering around the premises of Kamalbai Chatre. On 6th March, 2010, at around 3.45 p.m., P.W. No. 1 Kamalbai was in the house. Her daughter Laxmi, a female Police constable, after her lunch, was sleeping in a room near kitchen. P.W. No. 1 was searching for medicines in nearby cupboard adjacent to the cot where Laxmi was sleeping. She heard sound of handling of utensils, from the kitchen. Initially, she did not suspect. However, when she looked to kitchen, she was surprised to see accused Rajesh had picked up a knife from the kitchen and he rushed to Laxmi. He pressed her mouth with his left hand and thrust the knife in her chest by his right hand. Taken aback, P.W. No. 1 tried to intervene but, appellant had a scuffle with her, beat her. Resultantly, P.W. No. 1 suffered bleeding injury and abrasions. She yelled, "BACHAV, BACHAV". Resultantly, neighbours Pravin @ Bhaiyya Patil (P.W. No. 6), Natha Devidas Patil, Aba Wani, Vijay Kanjarekar, and others rushed. Bhaiyya Patil snatched knife from the accused, however, he also suffered injuries/abrasions. Laxmi, owing to injured condition, came running to gallery, however, due to profuse bleeding, she collapsed. She was carried to Civil Hospital in a Rickshaw where she was declared dead. The neighbours controlled the accused at the spot. F.I.R. (Exh. 20) of P.W. No. 1 was recorded which triggered investigation. The appellant was put under arrest in presence of Siddharth Damodhar Borse and P.W. No. 5 Kailas Changulal Alware (Exh. 29). The description of the appellant was recorded, including blood stained apparels on his person. The neighbours controlled the accused at the spot. F.I.R. (Exh. 20) of P.W. No. 1 was recorded which triggered investigation. The appellant was put under arrest in presence of Siddharth Damodhar Borse and P.W. No. 5 Kailas Changulal Alware (Exh. 29). The description of the appellant was recorded, including blood stained apparels on his person. The apparels were taken charge under said panchnama, packed, signed by Panch witnesses, labelled and sealed. (b) Spot panchnama (Exh. 28) was drawn with the same panch witnesses; Siddharth and Kailas, who recorded the situation. The blood stained knife, spoilt of blood cotton swab was taken charge by the investigator duly labelled, sealed. (c) Inquest on dead body was caused in presence of P.W. No. 4 Nagsen Borse who too cemented about the fatal injuries suffered by the deceased. Post mortem on the dead body was caused by P.W. No. 9 Dr. Ramesh Kashinath Gadhari on 6.3.2010 between 6.30 to 7.30 p.m. He noticed a stab injury on chest of the deceased 1.4 c.m. x 0.6 c.m. with cavity deep situated at 2 c.m. lateral to mid-line obliquely placed. The injury was below 17 c.m. of supra sternal notch. Upper end was medially and lower end was placed laterally. The injury was noticed to be fresh and ante-mortem. P.W. No. 9, on internal examination noticed that brain was pale; chest wall and pleura were cut in 4th inter-costal space. Plural lungs were cut consistent with external injury. Heart contained blood and blood clots, stomach contained 100 cc semi digested food. Walls and mucosa were normal. Corresponding cut marks are noticed on the clothes of the deceased. He has identified the Muddemal article No. B Kurta, to be the same. Death of the deceased was due to stab injury. Accordingly, he issued post mortem report Exh. 43. The injuries were recorded in clause Nos. 17 and 20. According to him, the knife (SURI) like Muddemal Article A could be the possible weapon of assault. (d) Statements of various persons were recorded. P.W. No. 8 Shaikh Akil collected Chemical Analyzer's reports (Exhs. 39, 40 and 41) and filed chargesheet. In the evidence, P.W. No. 8 has identified the accused before the Court. (e) Learned Judicial Magistrate, First Class, considering the offense to be triable exclusively by the Court of Sessions, by following procedure under Sections 207 and 209 of Cr.P.C., committed the case. (f) Charge below Exh. 39, 40 and 41) and filed chargesheet. In the evidence, P.W. No. 8 has identified the accused before the Court. (e) Learned Judicial Magistrate, First Class, considering the offense to be triable exclusively by the Court of Sessions, by following procedure under Sections 207 and 209 of Cr.P.C., committed the case. (f) Charge below Exh. 3 for offense under Sections 452, 302 of IPC was explained to the accused/appellant. He pleaded not guilty and denied to have committed any offense. (g) Learned Additional Sessions Judge, Dhule, formulated following points, and concluded against appellant, holding him guilty. Sr.No. Points Finding 1 Is it proved by the prosecution that deceased Laxmibai Chatre died homicidal death ? In affirmative. 2 Is it proved by the prosecution that on 06.03.2010 between 3.45 to 4.00 p.m., in Vishnunagar, Dhule the accused committed murder by intentionally or knowingly causing the death of deceased ? In affirmative. 3 Is it proved by the prosecution that on the aforementioned date, and at the same time and place, the accused committed house trespass by entering into the house of complainant, having made preparation to assault the deceased ? In affirmative. 4 What Order ? As per final order 3. Shri Jadhav, learned Counsel for the appellant says, the matter proceeds on three circumstances; (A) direct evidence of P.W. No. 1 and P.W. No. 6, (B) appellant was apprehended at the spot, (c) his clothes were found smeared with blood. Chemical Analyzer's report suggests blood on his clothes was of human nature. Learned Counsel says, P.W. No. 6 Pravin @ Bhaiyya appears to be a chance witness and cannot be accepted as a chance witness to entire events; something must have happened either before Pravin, P.W. No. 6 noticing or P.W. No. 1 confronted with, same is not demonstrated by the investigation. There was no quarrel. The conduct of the accused also calls for re-think. The appellant did not visit P.W. No. 1's residence to commit homicidal death amounting to murder. There was no pre-planning. Learned Counsel at the end urged that the case would come in Exception (4) to Section 300 of IPC. 4. Learned A.P.P. supported the judgment and says, the case will seldom fall in the category of exception. The appellant assaulted sleeping lady. There was no pre-planning. Learned Counsel at the end urged that the case would come in Exception (4) to Section 300 of IPC. 4. Learned A.P.P. supported the judgment and says, the case will seldom fall in the category of exception. The appellant assaulted sleeping lady. He had prepared himself as, in past, he was found roaming and loitering around the house in search of an opportunity and succeeded in his attempt. 5. We have perused original record and scanned the evidence. From the tenor of cross examination, spot panchnama, and inquest (proved by P.W. No. 4), Laxmi had suffered fatal injury recorded in the inquest. Dr. Ramesh, P.W. No. 9, as indicated earlier, carried post mortem. He has opined that cause of death to be the stab injury. He has denied suggestion that the injury could be self inflicted. Cumulative effect of above discussion illustrate that death of Laxmi was homicidal, amounting to murder. Whether a case for concession in exception (4) of Section 300 of IPC is made out, has to be scanned. 6. P.W. No. 1 Kamalbai, natural witness, was in the room next to Laxmi, searching for medicines in a cupboard near the cot where Laxmi was sleeping. Laxmi had her meals prior thereto. The post mortem notes in column No. 21, relating to abdomen, endorse presence of 100 cc of food particles; semi digested, in her abdomen, and walls with mucosa. 7. P.W. No. 1 knew the appellant, husband of her other daughter. No question of mismatch of identity. No sooner the appellant barged, picked up a knife, she was taken aback. She could not dream that appellant would ravish her daughter in a brutal manner. There was no chance for resistance to her daughter as she was sleeping un-guarded and unmindful of the event. The mindset of the appellant was crucial; he had designed to eliminate the deceased and even to teach a lesson to P.W. No. 1. This is because, in the melee, he has also assaulted P.W. No. 1 by same knife. P.W. No. 6 was attempting to intervene and snatch the knife, however, suffered abrasions. 8. P.W. No. 1 and 6 were medically examined by P.W. No. 7 Dr. Yogesh Thakare. He has endorsed following two injuries suffered by P.W. No. 1. This is because, in the melee, he has also assaulted P.W. No. 1 by same knife. P.W. No. 6 was attempting to intervene and snatch the knife, however, suffered abrasions. 8. P.W. No. 1 and 6 were medically examined by P.W. No. 7 Dr. Yogesh Thakare. He has endorsed following two injuries suffered by P.W. No. 1. (a) Superficial sharp t cut injury over base of the nose 1 x 1 c.m. I have noticed 2 injuries. (b) Superficial sharp cut injury over right palm base of her thumb 1 x 1 c.m. The above injuries to Kamalbai, according to him, could be caused by hard and sharp object within a period of six hours. The injuries were simple in nature. He confirmed that object Art. A, knife, could be the weapon used. Injury certificate is at Exh. 34. In the history recorded immediately on 6.3.2010, P.W. No. 7 has recorded that the assault was by a knife at her home near Savitri Phule statue. Such history was narrated by Suresh Chatre. P.W. No. 6 Pravin @ Bhaiyya gave history of trauma while going to see events of Chatre family and suffered abrasion of the size of 1 x 1 c.m. over right lateral palm caused by hard and blunt object within six hours. The injury was simple. Such injury certificate is at Exh. 35. 9. Thus, evidence of P.W. No. 1 and 6 coupled with evidence of P.W. No. 7 illustrate, the eye witnesses were trying to control aggressive appellant and in the exercise suffered afore referred injuries. P.W. No. 7's evidence certifies of such injuries and its age to be within six hours. It, therefore, cannot be a case of a cooked up story to embroil the appellant. 10. The defense raised by the appellant to the witnesses and particularly P.W. No. 1 was, she had quarrel with her daughter Laxmi as P.W. No. 1 was insisting for entire salary and her unmarried daughter was refusing, in the exercise, she committed suicide. The nature of injuries suffered by Laxmi is certified by P.W. No. 9 Dr. Ramesh that it was a stab injury and could not be self inflicted. There were cut marks at lungs; such cut marks were noted even on shirt which she was wearing at the material time. 11. P.W. No. 5 Siddharth Borse has proved seizure of blood stained apparels of the accused. Ramesh that it was a stab injury and could not be self inflicted. There were cut marks at lungs; such cut marks were noted even on shirt which she was wearing at the material time. 11. P.W. No. 5 Siddharth Borse has proved seizure of blood stained apparels of the accused. Same were sent in packed condition to the office of Chemical Analyzer by P.W. No. 2 Rajendra Pagare. Chemical Analyzer's reports (Exh. 39) establish that human blood was detected on the seized weapon (knife) and also on the apparels of the accused. The blood group of accused is B. Even if there was no final determination of blood group on the apparels or on the knife, however, there is no explanation flashed by the appellant as to how his apparels taken immediately in the house of the deceased had human blood. This circumstance and arrest of the appellant in the house by the Police, having controlled by neighbours established by P.W. No. 1 and 6, is also a circumstance completing coupling, to confront authorship to him. There was reprisal to the accused/appellant owing to customary divorce. He prodded to fracture its effects but did not succeed. He continued his loitering and searching for occasion around the house. 12. The case could not come within Exception (4) of Section 300 of IPC as it requires 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. To recapitulate, deceased was sleeping after her lunch, unmindful of impending strike and murderous attack on her. 13. Hon'ble Supreme Court has, in the matter of Shaukat v. state of Uttaranchal (2010 (3) Mh. L.J. (Cri.) 405), indicated a situation as to when exception (4) to Section 300 of IPC is attracted. The categories are: a) it was a sudden fight; (b) there was no premeditation; (c) the act was not done in a heat of passion; and (d) the assailant had not taken any undue advantage or acted in a cruel manner. 14. There is nothing on record in the present case, to suggest even remotely, that sudden quarrel had taken place, either between the appellant and the deceased or, between P.W. No. 1 and the appellant. The evidence suggests otherwise; that the deceased was sleeping; P.W. No. 1 was searching medicines. 14. There is nothing on record in the present case, to suggest even remotely, that sudden quarrel had taken place, either between the appellant and the deceased or, between P.W. No. 1 and the appellant. The evidence suggests otherwise; that the deceased was sleeping; P.W. No. 1 was searching medicines. The appellant, being aware of topography, collected knife, gagged deceased and aimed at her chest, stabbed formally with such a force that the blade and butt of knife had turned into a curve. Premeditation to cause death of the deceased stands proved by reliable evidence of P.W. No. 1, and about appellant collecting the knife. There is nothing to demonstrate that act of mounting fatal attack on deceased was in a heat of passion. On the other hand, the appellant took undue advantage of the situation and inflicted fatal blows to the deceased. The appellant was uncontrollable, and even did not spare P.W. No. 1 or the outsider P.W. No. 6, who had attempted to intervene. On analysis of evidence referred to above, we find, interference is not required in the finding of guilt recorded by learned Additional Sessions Judge, Dhule, in his reasoned judgment, for the offense under Sections 302 and 452 of IPC. Criminal Appeal (No. 683/2011) is dismissed.