ORDER 1. The accused-appellant Ubesh Khan, son of Chhutan Khan, has preferred the present appeal against the judgment and order of the High Court of Delhi dated 30.05.2008 dismissing Criminal Appeal No. 363 of 2005 preferred against the judgement passed by Additional Sessions Judge, New Delhi convicting the appellant for : offences punishable under sections 302, 307 and 324 of Indian Penal Code, 1860 [In short 'IPC'] and awarding the following sentences: i) life imprisonment and fine of Rs.5000/- in default six months rigorous imprisonment under section 302 of IPC; ii) rigorous imprisonment for 3 years and fine of Rs.2000/- in default rigorous imprisonment for 3 months under section 307 IPC; iii) rigorous imprisonment for 1 year and fine of Rs1000/- in default 1 month rigorous imprisonment under section 324 IPC. 2. The facts of the case in brief are as follows : i) At about 9:45 AM on 16th June 2003, the appellant-Ubesh Khan, his sister Rukhsana and his brother-inlaw Sajid Master went to Mohd. Murshid's house to ask for return of the money which the latter owed to the appellant. Murshid told him that he shall return the money within 2-3 days when he recovers the same. On this, an altercation took place between the two and the appellant started abusing Murshid. The appellant got enraged, took out a knife from beneath his clothes and gave blows on the chest and stomach of Murshid. Upon intervening, PW-2 Mehboob and PW-3 Jahangir were also assaulted by the appellant. PW-4 Mohd. Shakir took the three injured persons to the AIIMS hospital, New Delhi. ii) PW-7 the Investigating Officer, Babu Lal obtained statements of PW-2 and PW-3, after obtaining permission of the Chief Medical Officer, as they were eyewitnesses to the incident. After that, returned to the scene of crime took photographs and collected evidence from the spot. iii) On the same day, PW-7 received information about the death of Murshid and autopsy was conducted on 17th June 2003 by PW-1, Dr Sunil Arora. iv) The appellant was arrested from New Delhi Railway Station on 20.06.2003 and an arrest memo and personal search memo was prepared. 3. Chargesheet under section 173(2) Code of Criminal Procedure, 1973 [In short 'the CrPC'] was filed against the accused-appellant under sections 302, 307 and 324 IPC. 4. Charges were framed against the accused, to which he pleaded not guilty and the trial commenced. 5. 3. Chargesheet under section 173(2) Code of Criminal Procedure, 1973 [In short 'the CrPC'] was filed against the accused-appellant under sections 302, 307 and 324 IPC. 4. Charges were framed against the accused, to which he pleaded not guilty and the trial commenced. 5. The prosecution in support of its case examined eight witnesses which included the informant Mehboob (PW-2) and Jahangir (PW-3), the injured eyewitnesses to the incident, Dr Sunil Kumar (PW-1), who had conducted the autopsy, Mohd. Shakir (PW-4) who brought the injured to the hospital, Sub-Inspector Kiran Sood (PW-5) who recorded the FIR, Sub-Inspector Madanpal (PW-6) draftsman who prepared the scaled site plan, SI Babu Lal (PW-7) the Investigating Officer (IO) and Dr. Anandita (PW-8) who examined the injured. 6. During trial, in his statement under section 313 of CrPC, the appellant contended that he was innocent and claimed to be falsely implicated in the case. 7. After perusing the evidence on record and hearing the learned counsel for both prosecution and defence, the Trial Court vide order dated 21.02.2005 in Sessions Case No. 78/03 convicted the appellant for offences under sections 302, 307 and 324 IPC and vide order dated 23.02.3005 sentenced the appellant as already reproduced in the opening paragraph. 8. Aggrieved by the conviction and sentence, the appellant preferred Criminal Appeal No. 363 of 2008 before the High Court. The High Court vide judgment dated 30.05.2008 dismissed the appeal filed by the appellant and upheld the conviction and sentence imposed by the Trial Court. Aggrieved by the judgment of the High Court, the appellant has filed the present appeal in this Court. 9. The Trial Court and the High Court relied upon the following evidences to record finding of conviction and awarding sentence as disclosed above: i) Testimony of PW-2 Mehboob, real brother of the deceased, an eye witness to the incident who narrated the happenings of the day to the police officer. The narration of the incident during the examination in chief appeared to be spontaneous and truthful of the events which transpired on the fateful day and was duly corroborated by the statement which was made to the police. PW-2's testimony when read as a whole proves the occurrence of the incidents and also established the identity of the accused-appellant as PW-2 was not a stranger to the accused but brother of the deceased who was the neighbour of the appellant. PW-2's testimony when read as a whole proves the occurrence of the incidents and also established the identity of the accused-appellant as PW-2 was not a stranger to the accused but brother of the deceased who was the neighbour of the appellant. ii) Motive of the incident: The appellant had visited the house of the deceased Murshid seeking return of money which the deceased owed to the appellant. When the deceased told the appellant that he will return it after he recovers from other transactions, it enraged the appellant and a verbal altercation took place between the two. It was then that the appellant took out a knife from underneath his clothes and stabbed him. iii) Medical evidence: The MLC Report of the deceased (Ex- PW1/B-6) prepared by PW-1, and MLC report of PW-2 and PW-3 sufficiently corroborates the prosecution's case. iv) The disclosure statement of the appellant regarding the recovery of weapon of offence (Ex.P-1), and blood stained clothes of the appellant. The recovery of the knife/churra from the residence of the appellant at his instance connects him with the offence in question. The blood stains found on his clothes matched with that of the injured persons. v) PW-1's testimony clearly establishes that the death of the deceased was caused due to the incised wounds found on the right side of the chest and upper left part of back of the neck, which were sufficient in the ordinary course of nature to cause death. 10. The learned counsel for the appellant initially sought to argue that the judgments of the courts below are against the weight of the evidence on record and both the courts below have wrongly convicted the appellant. Learned counsel referred to the evidence on record in particular the statement of PW-2 and PW-3, who had turned hostile and were cross-examined by the Public Prosecutor; the delay in lodging the FIR for which there was no explanation. 11. In the alternative, learned counsel for the appellant submitted that as per the own prosecution story right from the stage of the FIR the incident had taken place in the heat of the moment due to the verbal altercation which took place between the deceased and the appellant and that it was not a pre-planned or pre-meditated episode of murder. In the alternative, learned counsel for the appellant submitted that as per the own prosecution story right from the stage of the FIR the incident had taken place in the heat of the moment due to the verbal altercation which took place between the deceased and the appellant and that it was not a pre-planned or pre-meditated episode of murder. He, thus, submitted that at best the appellant could be convicted under section 304 Part II IPC and not under section 302 IPC. 12. On the other hand, learned counsel for the respondent submitted that it was a clear case of culpable homicide amounting to murder as the appellant had come armed with a knife. It is a dangerous weapon and he caused repeated blows which resulted into the death of the deceased. He, thus, submitted that the judgments of the courts below do not call for any interference and the appeal deserves to be dismissed. 13. After going through the evidence on record, we are satisfied that the prosecution has proved beyond reasonable doubt that the appellant has caused the death of Murshid by inflicting knife blows upon him on account of Murshid not returning the money due to the appellant in the manner as set up and established by the prosecution. 14. The sole question to be considered now is whether the case falls under the category of culpable homicide amounting to murder punishable under section 302 IPC or culpable homicide not amounting to murder punishable under section 304 IPC. 15. Once the guilt of the accused is established under section 300 of IPC the Court needs to examine whether any of the exceptions enumerated to section 300 of IPC are available or in existence in order to escape from the rigour of section 302 of IPC. If the evidence on record establishes the applicability of any of the exceptions enumerated thereunder, the culpability/punishability gets reduced to culpable homicide not amounting to murder made punishable under section 304 Part I or Part II IPC. If the evidence on record establishes the applicability of any of the exceptions enumerated thereunder, the culpability/punishability gets reduced to culpable homicide not amounting to murder made punishable under section 304 Part I or Part II IPC. In the present case, the appellant sought to take assistance of Exception 4 to section 300 of IPC which is reproduced as follows: "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." 16. It is apt to take assistance of the recent decision rendered in the case of Mohd. Rafiq vs. State of Madhya Pradesh (2021) 10 SCC 706 , in which this Court after discussing the previous law has dealt with the issue of the features and considerations to be accounted for when dealing with the distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder, relevant paragraphs of which are reproduced below: "11. The question of whether in a given case, a homicide is murder, punishable under section 302 IPC, or culpable homicide, of either description, punishable under section 304 IPC has engaged the attention of courts in this country for over one and a half century, since the enactment of the IPC; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this court. The use of the term 'likely' in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.' 12. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.' 12. The decision in State of Andhra Pradesh v Rayavarapu Punnayya & Anr, (1976) 4 SCC 382 notes the important distinction between the two provisions, and their differing, but subtle distinction. The court pertinently pointed out that: "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 of the 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. 13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of sections 299 and 300." 13. The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh, (2006) 11 SCC 444 . This Court observed that: "29. The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh, (2006) 11 SCC 444 . This Court observed that: "29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances; (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body;(iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention." 17. From the examination of the statement of PW-2 Mehboob, it is evident that the appellant and the deceased Murshid used to be business partners and had separated a month prior to the incident. The deceased owed some money to the appellant and the appellant had visited the house to recover the same. When the deceased refused and informed him that he would return it within 2-3 days, the appellant became furious and a quarrel took place between the two of them. A sudden fight erupted between them, in the course of which in the heat of passion, the appellant inflicted fatal blows on the deceased. The aim of the visit of the appellant to the house of the deceased was not to kill him rather it was to recover the money which was owed to him. It was not a case of pre-planned or premeditated case of eliminating the deceased. Had the appellant gone to the house of the deceased with the intention to kill him, he would have done it right away and would not have taken his sister Rukhsana and brother-inlaw Sajid Master with him. Their complicity is not set up by the prosecution in any manner although their presence is stated in the FIR as also the statement of PW-2. The quarrel regarding the returning of money led to a scuffle between the ones present there i.e the appellant Ubesh Khan, deceased PW-2 Murshid, Mehboob, PW-3 Jahangir, Rukhsana (sister of the appellant), Sajid Master (brotherin-law of the appellant). There is one more reason to indicate that the appellant had no prior intention of eliminating the deceased as it would result into permanent loss of recovery of his dues. Apparently, the verbal altercation resulted into the assault. 18. Thus, for the reasons stated above, the offence would not fall under the category of culpable homicide amounting to murder but would be covered by the exceptions and would fall under the category of culpable homicide not amounting to murder. The appellant is thus liable to be acquitted of charges under section 302 IPC but liable to be convicted and sentenced under section 304 Part II IPC. The appellant is thus liable to be acquitted of charges under section 302 IPC but liable to be convicted and sentenced under section 304 Part II IPC. The rest of the conviction under sections 307 and 324 IPC as was upheld by the High Court is sustained. It is ordered, accordingly. 19. With reference to the question of sentence to be awarded under section 304 Part II IPC, it is on record that the appellant in respect of the present case was released on bail vide order dated 10.12.2012 as he had served more than 9 1/2 years of actual sentence. The sentence is thus awarded for the period already undergone. 20. Appeal is partly allowed as above. The appellant is already on bail. His bail bonds are cancelled and sureties discharged.