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2019 DIGILAW 294 (GUJ)

Vijaybhai Ravjibhai Vasava v. State of Gujarat

2019-04-02

A.C.RAO, J.B.PARDIWALA

body2019
JUDGMENT : A.C. Rao, J. 1. The appellant - original accused has preferred this Criminal Appeal under section 374 of the Code of Criminal Procedure challenging the judgment and order of conviction and sentence passed by the 7th Additional Sessions Judge, Bardoli, District Surat, Sessions Case No. 14 of 2016 dated 1/8/2018, by which the trial court convicted the appellant - original accused for the offence punishable under sections 302 Indian Penal Code, 1860 and sentenced him to undergo life imprisonment with fine of Rs. 5,000 and in default to deposit the amount of fine, ordered to undergo further simple Imprisonment for a period of one month. The trial court was pleased to grant benefit of set off as per section 428 of the Code of Criminal Procedure. 2. Case of the prosecution:- Kamleshbhai Vinakbhai Vinayakbhai - Police Constable lodged the FIR being CR No. I-38 of 2016 with the Mandavi Police Station for the offence punishable under sections 302 of Indian Penal Code alleging inter-alia that the on 18/3/2016 at about 2.15 hours when Nashvantbhai Rumshibhai Chaudhri along with the other members of the Gram Rakshal Dal, working under the Mandavi Police Station, was on night patrolling near Outpost in village Areth, the accused all of a sudden came from behind and hit one blow with a stick on the head of Nashvantbhai Chaudhary, as a result of which he sustained head injuries and was shifted to New Civil Hospital, where he died during the treatment. 2.1. During the course of the investigation, the investigating officer arrested the accused, recorded statements of the witnesses, got done the postmortem of the deceased, prepared inquest panchnama, prepared panchnama of the place of offence and carried out other investigation. After completion of investigation, the investigating officer filed chargesheet under section 173 of the Code of Criminal Procedure in the competent court of the learned Judicial Magistrate, First Class, Mandavi and the case was registered as Criminal Case No. 424 of 2016. 2.2. Since the case was triable by the Court of Sessions, the Judicial Magistrate after providing copies of the Chargesheet papers to the accused, committed the case to the Sessions Court under section 209 of the Cr.P.C. and the case was re-registered as Sessions Case No. 14 of 2016 in the Court of Sessions Judge, Bardoli. 2.3. The Sessions Court framed Charge against the accused at Ex. 2.3. The Sessions Court framed Charge against the accused at Ex. 5 and recorded Plea of the accused at Ex. 6. The accused pleaded not guilty and prayed for trial. The Sessions Case No. 14 of 2016 was assigned to the Additional Sessions Court, Bardoli, who conducted the trial in accordance with law. 2.4. The prosecution produced the following oral as well as documentary evidence: :ORAL EVIDENCE Ex.No. Particulars Remarks 20 Chuniyabhai Laliyabhai Chaudhary Witness 21 Prabhatbhai Masabhai Chaudhary Witness 22 Mukundbhai Prabhakar Chalake Witness 29 Kamleshbhai Vinayakbhai Borase Witness 8 Thakorbhai Naginbhai Tavaliya Panch witness 13 Manubhai Vanabhai Chaudhary Panch witness 18 Umeshbhai Rameshbhai Chaudhary Panch witness 19 Arunbhai Chimanhai Kansara Panch witness 23 Dr.Kalpeshhai Maheshbhai Zanzarukiya Doctor 31 Hemendrasinh Mahendrasinh Chauhan Police witness :DOCUMENTARY EVIDENCE Sr. No. Ex. No. Particulars 1 7 Inquest Panchnama. 2 9 Panchnama of the physical condition of the accused. 3 10 Panchnama of the recovery of the clothes and blood samples of the deceased. 4 11 Slip bearing signature of the panchas found from the muddamal. 5 12 Slip bearing signature of the panchas found from the muddamal. 6 14 Panchnama of the place of offence. 7 15 Slip bearing signature of the panchas found from the muddamal. 8 16 Slip bearing signature of the panchas found from the muddamal. 9 17 Slip bearing signature of the panchas found from the muddamal. 10 24 Yadi sent for postmortem. 11 24 Postmortem Note. 12 26 Cause of Death Certificate. 13 30 First information Report. 14 32 Yadi. 15 33 Report of the FSL regarding inspection of the place of offence. 16 34 Acknowledgment of the FSL for receipt of the muddamal. 17 35 Letter written to the office of the FSL. 18 36 Dispatch Note. 19 37 Biological Analysis Report of the FSL. 20 38 Serological Analysis Report of the FSL. 2.5. At the conclusion of the trial, 7th Additional Sessions Judge, Bardoli District Surat convicted the appellant accused for the offences punishable under sections 302 of IPC and sentenced the appellant to undergo life imprisonment with fine, as aforesaid. 3. Mr. 19 37 Biological Analysis Report of the FSL. 20 38 Serological Analysis Report of the FSL. 2.5. At the conclusion of the trial, 7th Additional Sessions Judge, Bardoli District Surat convicted the appellant accused for the offences punishable under sections 302 of IPC and sentenced the appellant to undergo life imprisonment with fine, as aforesaid. 3. Mr. Mrudul Barot, the learned counsel appearing for the appellant accused has raised following contentions:- [1] The trial court erred in convicting the appellant for the offence punishable under section 302 of IPC and imposing the sentence of life imprisonment; [2] The prosecution has not proved the case against the appellant beyond reasonable doubt; [3] The conviction is against the evidence on record, against the provision of law and against settled legal position; [4] The appellant is innocent and is falsely implicated in the offence; [5] The trial court erred in not appreciating the evidence on record in its true perspective; [6] The trial court has erred in misreading and misconstruing the oral testimony of the prosecution witnesses; [7] The trial court failed to appreciate that the appellant appears to be mentally unstable. The plea of insanity although was raised by the defence counsel before the trial court yet the said fact has surfaced from the evidence of the witnesses. The appellant being mentally sick, might not be aware of the consequences of the fact and therefore, there would have been no intention on his part while inflicting such a blow, if at all such a blow has been inflicted by the appellant, as alleged by the prosecution. [8] The trial court failed to appreciate the deposition of witness Prabhatbhai Masabhai Chaudhary PW No. 6 Ex. 21 who in his cross examination has stated that he along with two of his other colleagues including the deceased were on patrolling duty on that fateful night. He has deposed that it was too dark when the incident took place and that except the four of them, there was no one around. He admitted that the appellant is mentally sick and keeps on roaming about in the Areth village. He has deposed that he cannot say for sure as to who hit the deceased as it was very dark. However, the trial court has not considered this part of the evidence of this witness, who was in company of the deceased at the time of the incident. He has deposed that he cannot say for sure as to who hit the deceased as it was very dark. However, the trial court has not considered this part of the evidence of this witness, who was in company of the deceased at the time of the incident. [9] The trial court in para 14.3 of the judgment has recorded that the defence has stated that the accused is of unfit mind and is unable to understand the consequences of his action. However, the trial court not accepted the said contention of the defence, though the same has also come out of the deposition of the witnesses and erred in convicting the appellant for the offence under section 302 of IPC and sentencing him for life imprisonment. [10] The trial court failed to appreciate the deposition of witness Mukund Prabhakar Alok Ex. 22 who has stated in his cross examination that he was informed about the incident through telephone and he has not seen the appellant inflicting the blow, though he made allegation on the appellant and holds the appellant responsible for the incident. His evidence is hear-say evidence and cannot be relied upon for convicting the appellant. [11] The trial court failed to appreciate serious infirmities in the case of the prosecution and the trial court brush aside the defence of the accused; 4. The present appeal is opposed by Mr. Himanshu Patel, the learned APP appearing for the State. He submitted that the prosecution has successfully proved the case beyond reasonable doubt. He further submitted that the witnesses have supported the case of the prosecution. He submitted that the judgment and order of conviction and sentence passed by the trial court is on appreciation of evidence and same is not perverse. 4.1. Mr. Patel, further submitted that complainant-Chuniyabhai Laliyabhai Chaudhary, who has been examined at Ex. 20 has stated in his deposition that while he, deceased and other personnel were on patrolling at the time of incident, the accused came from back side and inflicted a blow on the head of the deceased and thereafter he and other personnel had caught hold the appellant and he was taken to the police station. He in his cross examination has categorically denied that he cannot definitely say who had inflicted the blow to the deceased. The said witness has also identified the appellant. He in his cross examination has categorically denied that he cannot definitely say who had inflicted the blow to the deceased. The said witness has also identified the appellant. He submitted that even no fruitful has come from his cross examination to save the accused. He submitted that the said witness has fully supported the case of the prosecution and from his evidence the involvement and role of the appellant has been proved and established. 4.2. Mr. Patel, further submitted that even prosecution witness Pratapbhai Masabhai Chaudhary, who has been examined at Ex. 21 has also deposed in his deposition that the appellant came from behind the deceased and inflicted a stick blow from backside on the head of the deceased and he and other persons had arrested the appellant and was kept in police station along with the wooden stick. 4.3. Mr. Patel, further submitted that the prosecution has proved that the appellant was arrested from the spot along with the muddamal wooden stick. 4.4. Mr. Patel, further submitted that even Manubhai, one of the panchas of the panchnama of the place of offence has also supported the case of the prosecution. 4.5. Mr. Patel, further submitted that even Dr. Kalpeshbhai Maheshbhai Zanzarukiya who has been examined at Ex. 23, who performed the postmortem of the deceased, has also supported the case of the prosecution. The said Doctor has deposed that as per column No. 17, there was stitched wound on head in oblique shape in occipital parietal region admeasuring 5.5 c.m. As per the said Doctor, the cause of death is shock due to head injury and said head injury is possible by blow of wooden stick on the head. The said Doctor has admitted that the muddamal weapon stick if inflicted on the head with force, such injury would be sufficient to cause death. 4.6. Mr. Patel, further submitted that the evidence of FSL has also supported the case of the prosecution. 5. Heard Mr. Mrudul Barot, the learned counsel for the appellant and Mr. Himanshu Patel, the learned APP appearing for the State at length. Perused the impugned judgment and order of conviction. Re-appreciated the evidence on record. 6. On consideration of the evidence on record, the following facts emerge:- 6.01. The case of the prosecution hinges on the evidence of prosecution witnesses - Chuniyabhai Laliyabhai Chaudhary PW No. 5 Ex. Himanshu Patel, the learned APP appearing for the State at length. Perused the impugned judgment and order of conviction. Re-appreciated the evidence on record. 6. On consideration of the evidence on record, the following facts emerge:- 6.01. The case of the prosecution hinges on the evidence of prosecution witnesses - Chuniyabhai Laliyabhai Chaudhary PW No. 5 Ex. 20, Pratapbhai Masabhai Chaudhary PW No. 6 Ex. 21 as well as Dr. Kalpeshbhai Maheshbhai Zanzarukiya PW No. 8 Ex. 23. 6.02. The complainant- Chuniyabhai Laliyabhai Chaudhary PW No. 5, who has been examined Ex. 20 has stated in his deposition in clear terms that at the time of incident, he was on patrolling along with Pratapbhai Masabhai, Gumanbhai Bhavsingbhai, Nashvantbhai Rumsibhai - deceased during the period from 1.00 a.m. to 1.30 a.m. and at that time, the accused came from back side of the deceased and inflicted a blow on the head of the deceased. He further deposed that thereafter he and other personnel caught hold the appellant and he was taken to the Areth Police Chowki. He deposed that the victim was taken to the hospital where he died during the treatment. The said witness has identified the appellant as well as the muddamal wooden log. The said witness has supported the case of the prosecution and from his evidence, the involvement and role of the appellant has been proved and established. 6.03. The deposition of Pratapbhai Masabhai Chaudhary PW No. 6 who has been examined at Ex. 21, is also identical to the deposition of Chuniyabhai Laliyabhai Chaudhary PW No. 5 Ex. 20. The said witness has also stated in his deposition that while he was on duty along with the deceased and other personnel, the appellant came from backside of the deceased and inflicted a stick on the head of the deceased and therefore, he and other personnel arrested the appellant and he was kept in police station along with the wooden stick. The said witness has also identified the appellant as well as muddamal weapon - wooden log/stick. 6.04. Even the of Dr. Kalpeshbhai Maheshbhai Zanzarukiya PW No. 8 Ex. 23 has also supported the case of the prosecution. The said Doctor has performed the postmortem of the deceased. The said witness has also identified the appellant as well as muddamal weapon - wooden log/stick. 6.04. Even the of Dr. Kalpeshbhai Maheshbhai Zanzarukiya PW No. 8 Ex. 23 has also supported the case of the prosecution. The said Doctor has performed the postmortem of the deceased. The said Doctor has deposed that as per column No. 17, there was stitched wound on head in oblique shape in occipital parietal region admeasuring 5.5 c.m. And as per his opinion, the cause of death is shock due to head injury. As per the said Doctor, the head injury sustained to the deceased is possible by blow of wooden stick on the head. As per the said Doctor, the muddamal weapon stick, if inflicted on the head with force, the injury would be sufficient to cause death. 6.05. Manubhai Vanabhai Chaudhary PW No. 2 who has been examined at Ex. 13, is the panch witness of the panchnama of the place of offence and panchnama for recovery of mud with blood stains. He has not supported the case of the prosecution and is declared hostile. 6.06. Umeshbhai Rameshbhai Chaudhary PW No. 3 who has been examined at Ex. 18, is also another the panch witness of the panchnama of the recovery of mud with bloodstains. The said witness has not supported the case of the prosecution. 6.07. Arunbhai Chimanbhai Kansara PW No. 4 Ex. 19 is the panch witness of the panchnama of recovery of muddamal stick and clothes of the accused. The said witness has supported the case of the prosecution. 6.08. Deposition of Mukundbhai Prabhakar Chalke PW No. 7, who has been examined at Ex. 22, is hearsay evidence. The said witness had not seen the incident and he has no personal knowledge about the evidence, however, his colleague Kamleshbhai had informed him about the incident telephonically. The evidence of the said witness being hearsay evidence, is not admissible in the evidence. 6.09. Kamleshbhai Vinayakbhai Borse PW No. 9 has been examined at Ex. 28. The said witness has not seen the appellant bearing stick on the head of the deceased. He found the deceased in bleeding condition when his colleague brought the deceased to the Police Chowki. His colleague had informed him about the incident. However, the said witness deposed that other personnel had brought the appellant with stick in his hand at the police station. He found the deceased in bleeding condition when his colleague brought the deceased to the Police Chowki. His colleague had informed him about the incident. However, the said witness deposed that other personnel had brought the appellant with stick in his hand at the police station. He had seen the appellant with stick in his hand at the police chowki. 6.10. Hemendrasinh Mahendrasinh Chauhan, PW No. 10 who has been examined at Ex. 31 is the investigation officer. He has supported the case of the prosecution. 6.11. Even the appellant was arrested from the spot along with the muddamal wooden stick and the said facts have been proved and established by the prosecution. 6.12. The evidence of FSL and medical evidence has also supported the case of the prosecution. 6.13. Thus, from the evidence of the aforesaid witnesses, medical evidence and evidence of FSL, the prosecution has proved and established beyond reasonable doubt that the appellant has committed the offence. 7. Having heard the learned counsel for the respective parties and considering the evidence on record, more particularly, depositions of Chuniyabhai Laliyabhai Chaudhary PW No. 5 Ex. 20, Pratapbhai Masabhai Chaudhary PW No. 6 Ex. 21 as well as Dr. Kalpeshbhai Maheshbhai Zanzarukiya PW No. 8 Ex. 23, it is clear that the prosecution has proved the case against the appellant beyond reasonable doubt. The aforesaid three witnesses are eye witness and they have categorically stated in their depositions that the appellant came from behind and hit a stick blow on the head of the deceased and the accused was nabbed from the place of offence with the muddamal stick. Even the eye witnesses have identified the appellant and muddamal stick. The evidence of the aforesaid witnesses also corroborates the medical. 7.1. So far as the contention raised by the learned counsel for the appellant that the trial court has failed to consider the defence that the appellant was not in a fit state of mind at the time of commission of the offence and even the witness Prabhatbhai Masabhai Chaudhary PW No. 6 Ex. 21 has admitted in his cross examination that appellant is a man of unfit mental state and keeps roaming around the Areth village, is concerned, the onus to establish the plea of insanity is on the accused. However, the defence has failed to raise any such plea of insanity. 21 has admitted in his cross examination that appellant is a man of unfit mental state and keeps roaming around the Areth village, is concerned, the onus to establish the plea of insanity is on the accused. However, the defence has failed to raise any such plea of insanity. No evidence worth the name has been led by the defence to prove the plea of insanity. Even the investigating officer has admitted that it was not found in his investigation that the appellant is insane. It is needless to say that burden to prove the defence of insanity is on the accused. 7.2. In this connection we would like to refer to and rely on section 84 of the Indian Penal Code, which reads thus:- "84. Act of a person of unsound mind.- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that what he is doing is either wrong or contrary to law." It is obvious from a bare reading of this provision that what may be generally an offence would not be so if the ingredients of Section 84 IPC are satisfied. It is an exception to the general rule. Thus, a person who is proved to have committed an offence, would not be deemed guilty, if he falls in any of the general exceptions stated under this Chapter. 7.3. To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosus nulla voluntas est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behaviour. 7.4. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behaviour. 7.4. In the case of Surendra Mishra v. State of Jharkhand, reported in (2011) 11 SCC 495 , the Apex Court was dealing with a case where the accused was charged for an offence under Section 302 IPC and Section 27 of the Arms Act. While denying the protection of Section 84 IPC to the accused, the Apex Court held as under: "11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Penal Code is to prove legal insanity and not medical insanity. Expression 'unsoundness of mind' has not been defined in the Penal Code and it has mainly been treated as equivalent to insanity. But the term 'insanity' carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer, are not sufficient to attract the application of Section 84 of the Penal Code." 7.5. From the abovestated principles, it is clear that a person alleged to be suffering from any mental disorder cannot be exempted from criminal liability ipso facto. The onus would be on the accused to prove by expert evidence that he is suffering from such mental disorder or mental condition that he could not be expected to be aware of the consequences of his act. Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability. Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability. 7.6. So far as the contention of the appellant that the appellant hit a single blow on the deceased and there was no intention on the part of the accused is concerned, the same requires consideration. It is an admitted position that the appellant accused hit one blow on the head of the deceased with a stick, on account of which the deceased sustained injury and died. However, reading the entire evidence on record, it could be said that there was no intention on the part of the accused to kill the deceased. Even if the entire evidence on record is taken to be true, the intention of the appellant to kill the deceased is not proved and established. Hence there is substance in the contention of the advocate of the appellant that the trial court erred in convicting the appellant for the offence under section 302 of the IPC. 7.7. Considering the overall evidence on record, we are of the opinion that there is substance in the submission of the learned counsel for the appellant that at the best it is a case of culpable homicide not amounting to murder. There is absence of premeditation and intention to kill the deceased. The medical evidence indicates a single penetrating wound on the head of the deceased. Thus this is a case of one blow by a wooden log all of a sudden without any rhyme or reason or any motive. 7.8. Section 299 of the IPC explains culpable homicide as causing 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 the act complained of is likely to cause death. The first two categories require the intention to cause death or the likelihood of causing death while the third category confines itself to the knowledge that the act complained of is likely to cause death. On the facts of this case, the offence of culpable homicide is clearly made out. 7.9. The first two categories require the intention to cause death or the likelihood of causing death while the third category confines itself to the knowledge that the act complained of is likely to cause death. On the facts of this case, the offence of culpable homicide is clearly made out. 7.9. Section 300 of the IPC explains what is murder and it provides that culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or the act complained of is so imminently dangerous that it must in all probability cause death or "such bodily injury as is likely to cause death." There are some exceptions when culpable homicide is not murder and we are concerned with Exception 4 which reads: "Exception 4. - 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." Explanation. - It is immaterial in such cases which party offers the provocation or commits the first assault." 7.10. Exception 4 to Section 300 of the IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The fourth exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of 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 an 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 could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders 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. 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". 7.11. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code. 7.12. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code. 7.12. In State of A.P. Versus Rayavarapu Punnayya and another, reported in (1976) 4 SCC 382 : ( AIR 1977 SC 45 ), the Supreme Court, while drawing a distinction between Section 302 and Section 304, held as under:- "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice- versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide forth second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304." 7.13. In the case of Budhi Singh Versus State of Himachal Pradesh, reported in (2012) 13 SCC 663 : 2013 AIR SCW 457, the Supreme Court has held as under:- "18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury. Another test that is applied more often than not is that the behaviour of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self-control and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill, it will obviously fall beyond the scope of culpable homicide not amounting to murder..... " 7.14. In the case of Kikar Singh v. State of Rajasthan, reported in (1993) 4 SCC 238 : AIR 1993 SC 2426 , the Supreme Court held as under:- "8. The counsel attempted to bring the case within Exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to Exception 4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying Exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the Exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder. 9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302. Equally for attracting Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4...." 7.15. The Supreme Court, in the case of Singh v. State of Punjab, reported in (2017) 5 SCC 796 : ( AIR 2017 SC 1904 ), has observed that: "The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders 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. 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......... 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". 7.16. Section 304 of the IPC provides the punishment for culpable homicide not amounting to murder. Part I of this Section provides that if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death then the punishment may extend up to imprisonment for life. On the other hand, Part II of Section 304 provides that if the offending act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death then the punishment may extend to imprisonment for 10 years. 7.17. As held by the Apex Court in the case of Talaram Versus State of Madhya Pradesh, reported in AIR 2018 S.C. 2146 , the intention to cause death must not be readily inferred though the accused may be attributed with the knowledge that the injury is likely to cause death. The Apex Court in the said case, in the absence of any premeditation, altered the conviction from section 302 of IPC to the second part of the section 304 of the IPC. The court below assumed that the accused had intended to cause death of the deceased. There is nothing on record to suggest such an intention and none of the witnesses have given any indication of the intention of the appellant to cause death of the deceased. The court below assumed that the accused had intended to cause death of the deceased. There is nothing on record to suggest such an intention and none of the witnesses have given any indication of the intention of the appellant to cause death of the deceased. The appellant caused injury by wooden log on the head of the deceased but the intention of the accused to kill the deceased is not apparent. In view of the evidence on record, we are satisfied that the ingredients of murder as explained in Section 300 of the IPC are missing in this case. 7.18. Thus, considering the factual scenario of the case on hand in its entirety, the evidence on record and in the background of the legal principles laid down by this Court in the cases referred to supra, the attack was sudden and not premeditated. Such being the position, it cannot be held that the accused had the intention to kill the deceased or to cause such bodily injury as is likely to cause death. In the facts of the case on hand, all the requirements under Section 300 Exception 4 of the IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300 IPC is attracted to the fact situations and the appellant-accused is entitled to this benefit. 7.19. In the case of Deepak v. State of U.P., (2018) 8 SCC 228 , the Supreme Court observed in para 7 as under:- "7. On consideration of the entirety of the evidence, it can safely be concluded that the occurrence took place in the heat of the moment and the assault was made without premeditation on the spur of time. The fact that the appellant may have rushed to his house across the road and returned with a sword, is not sufficient to infer an intention to kill, both because of the genesis of the occurrence and the single assault by the appellant, coupled with the duration of the entire episode for 1½ to 2 minutes. Had there been any intention to do away with the life of the deceased, nothing prevented the appellant from making a second assault to ensure his death, rather than to have run away. The intention appears more to have been to teach a lesson by the venting of ire by an irked neighbour, due to loud playing of the tape recorder. The intention appears more to have been to teach a lesson by the venting of ire by an irked neighbour, due to loud playing of the tape recorder. But in the nature of weapon used, the assault made in the rib-cage area, knowledge that death was likely to ensue will have to be attributed to the appellant. Applying the above referred case to the fact of the prest case which is squarely covered by the above referred judgment to the facts of the present case. In the entirety of the evidence, the facts and circumstances of the case, we are unable to affirm the conviction of the appellant under Section 302 IPC and are satisfied that it deserves to be altered to Section 304 Part II IPC. 8. In the result, the present appeal is partly allowed. The impugned judgment and order of conviction and sentence passed by the 7th Additional Sessions Judge, Bardoli, District Surat, the Sessions Case No. 14 of 2016 dated 1/8/2018, is hereby quashed and set aside. The conviction of the appellant for the offence punishable under Section 302 of the IPC is altered to section 304 Part-II and the sentence is reduced to 5 (five) years rigorous imprisonment. Before parting with the judgment, we would like to observe as a precaution that during the pendency of the appeal, we had called for the report from the Medical Officer of the Jail Authority about the mental condition of the appellant. According to the jail authority, there is no complaint against the appellant. As per the Medical Officer, in jail he had not found any symptoms of insanity. However, by way of precaution, we would like to direct the jail authority that before releasing the appellant, the mental condition of the appellant be checked by the Medical Board and if the appellant is found in fit state of mind, he be released, otherwise, he be referred for medical treatment as per the opinion of the Medical Board.