JUDGMENT : 1. Heard Sri Pramod Kumar Pandey, learned Amicus Curiae for the appellant and Mrs. Archana Singh, learned AGA for the State. 2. This jail appeal is directed against judgment and order dated 22.07.2005, passed by the Additional Sessions Judge/Special Judge, Budaun in Sessions Trial No. 29 of 2003, State vs. Nanhey whereby the appellant has been convicted under section 302 read with 34 IPC, in Crime No.123/98, Police Station Islamnagar, District Budaun and consequently sentenced to life imprisonment. 3. As per the prosecution version the first informant (PW-1) was cleaning drain in front of his house during morning when accused appellant Nanhey alongwith his brothers Nanki and Kalicharan objected to the waste water being discharged in their drain. The father of first informant (the deceased) is stated to have told the accused party that dirty water was being discharged in this fashion, from before, on which the accused persons got enraged and started abusing the informant’s father. This was objected whereafter the accused appellant Nanhey stabbed the deceased in his abdomen while Nanki and Kalicharan hit him by Lathi and Danda (stick-a blunt object). The incident is said to have occurred at 6.00 am. On raising alarm by the brother-in-law of the informant, who was also present, Mahipal and certain other persons saw the incident and the accused persons fled. On the basis of such written report given by PW-1, the first information report under Section 307 IPC was registered at 7.40 am on 11.5.1998. 4. The injured was taken to the police station whereafter he was referred to the hospital for medical examination. Injury report (Ext. Ka-14) of injured Ram Swaroop has been placed on record. The injured Ram Swaroop remain hospitalized and ultimately died on 15.5.1998. Panchayatnama has also been prepared on 15.5.1998 at 2.10 pm, in which the inquest witnesses opined that death of Ram Swaroop was homicidal. Postmortem of the body came to be conducted by Dr. R.K. Agarwal (PW-5) on 16.5.1998, wherein cause of death was held to be shock and septicemia, as a result of antemortem injuries. The investigation continued and ultimately a chargesheet was submitted against the accused appellant Nanhey and co-accused Nanki. Nanki, however, has absconded. Name of other accused Kalicharan was not included as an accused in the chargesheet. 5. R.K. Agarwal (PW-5) on 16.5.1998, wherein cause of death was held to be shock and septicemia, as a result of antemortem injuries. The investigation continued and ultimately a chargesheet was submitted against the accused appellant Nanhey and co-accused Nanki. Nanki, however, has absconded. Name of other accused Kalicharan was not included as an accused in the chargesheet. 5. Cognizance in the matter was thereafter taken by the concerned Magistrate, who committed the matter to the court of Sessions, by which the offence was triable. Sessions Trial No. 29 of 2003 came to be registered wherein the charges were read out to the accused appellant who denied them and the trial commenced. 6. In order to establish the charge framed against the appellant the prosecution adduced oral and documentary evidence. The documentary evidence consisted of written report of the FIR (Ext. Ka-1); Attachment memo (Ext. Ka-2); FIR (Ext. Ka-4); Postmortem Report (Ext. Ka-6); Injury report of Ram Swaroop (Ext. Ka-14); and Charge-sheet etc. These documents were also proved. 7. The prosecution adduced oral testimony of first informant Krishna Pal (PW-1), who is an eye-witness to the act of crime. PW-2 Munna Lal who happened to be son-in-law of the deceased was examined but he turned hostile. Prosecution has also examined Sushil Kumar (PW-3), who later conducted investigation in the matter. PW-4, Head Constable Raj Kumar Singh has verified that written report (Ext. Ka-1) was incorporated in the General Diary of the Police Station and Check FIR was consequently issued. Dr. R.K. Agarwal (PW-5), who conducted the autopsy has proved the postmortem report (Ext. Ka-6). The doctor opined that cause of death of deceased was septicemia due to ante-mortem injuries. Dr. M.K. Verma, who examined the injured was also adduced as PW-7, for verifying his injury report (Ext. Ka-14). PW-6 K.C. Dixit and PW-8 Mahendra Singh were formal witnesses. 8. On the basis of above evidence adduced by prosecution, during the course of trial, the Court of Sessions held the accused appellant guilty of commissioning offence under Section 302 read with 34 IPC and sentenced him to life imprisonment. Thus aggrieved, the accused appellant preferred the present Jail Appeal in 2005. 9. 8. On the basis of above evidence adduced by prosecution, during the course of trial, the Court of Sessions held the accused appellant guilty of commissioning offence under Section 302 read with 34 IPC and sentenced him to life imprisonment. Thus aggrieved, the accused appellant preferred the present Jail Appeal in 2005. 9. Sri Pramod Kumar Pandey, learned amicus curiae submits that charge under Section 302 read with 34 IPC is not made out against the accused appellant, inasmuch as, the cause of death has not been established and the allegation that it was on account of the stab wound caused by the appellant that the deceased died is not proved. He also urges that accused appellant has denied the accusations under Section 313 Cr.P.C. and in reply to Question No. 13 explained that deceased was hit by buffalo and he fell on the Plough due to which abdominal injury was caused. It is also argued that defence of the appellant has not been considered in its correct perspective. 10. Counsel for the appellant in the alternative submits that even if the allegations made against the accused appellant are taken on its face value, yet he cannot be convicted of an offence under Section 302 IPC since by virtue of Exception 4 to Section 300 IPC, the act not being on a premeditation and having arisen 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 would not amount to culpable homicide amounting to murder and, therefore, the appellant at best could be sentenced under Section 304 IPC Part 2 or at best Part 1, and that the life sentence awarded under Section 302 IPC is wholly unwarranted in the facts of the case and is unsustainable in law. 11. Learned AGA, Mrs. Archana Singh on the other hand submits that a timely first information report was lodged in the matter under Section 307 IPC and the injured was taken to the hospital by the police. She submits that the injury report is categorical with regard to the abdominal stab wound caused to the deceased on the left side of the abdomen which is consistent with the ocular testimony of eyewitness PW-1 who has seen the accused appellant inflicting stab wound on the abdomen of deceased. She submits that the injury report is categorical with regard to the abdominal stab wound caused to the deceased on the left side of the abdomen which is consistent with the ocular testimony of eyewitness PW-1 who has seen the accused appellant inflicting stab wound on the abdomen of deceased. It is further submitted that the ocular testimony of PW-1 is reliable and matches with the postmortem report and also the injury report and there is absolutely no reason for any false implication of the accused appellant. In such circumstances, learned counsel submits that the conviction and sentence awarded to the accused appellant is absolutely in accordance with law and the appeal lacks merit. 12. We heard learned counsel for the parties and perused the records of the present appeal and have carefully gone through the evidence brought on record. 13. Records clearly reveal that a timely first information report has been lodged in the matter at 7.40 am on the date of incident i.e. 11.5.1998. The incident itself has taken place at 6.00 in the morning. The allegation in the FIR is that it was a sudden fight which erupted between the parties on account of flowing of dirty water in the drain. The accused appellant and the deceased are otherwise neighbours and closely related to each other. As per FIR allegation the deceased had objected to the abuses, being hurled, when an objection was raised by the accused party over flowing of dirty water in the drain. It is alleged that the appellant Nanhey caused the first stab injury by knife on the left side abdomen of the deceased, whereafter injuries were also caused by hard and blunt object (Lathi and Danda) by the two brothers of the accused appellant. It is not in dispute that charge-sheet has been filed only against two brother namely Nanhey and Nanki and as Nanki has absconded and the trial has proceeded only against the accused appellant. 14. The statement of PW-1 has been relied upon by the prosecution, who happens to be the son of the deceased and his presence on the spot is not doubted. PW-1 was residing in the same house with the deceased and has categorically stated that the three accused in the matter are the sons of his uncle who live in the neighbourhood. PW-1 was residing in the same house with the deceased and has categorically stated that the three accused in the matter are the sons of his uncle who live in the neighbourhood. The site plan is part of record which shows that the accused party and the deceased were neighbours. He has clearly stated that a fight erupted at 6.00 in the morning when he was cleaning the drain in front of his house and his father was also present at the spot. The accused party are stated to have hurled abuses and on the deceased objecting to it the accused party caused injuries to the deceased. The statement of PW-1 is specific that it was the accused appellant who inflicted stab wound on the abdomen of the deceased. Although counsel for the appellant has tried to show some minor discrepancy in the statement of PW-1, but we find that on material particulars and aspects his statement is consistent with regard to injuries being caused by knife to the deceased by the accused appellant. We further find that the ocular testimony of PW-1, who happens to be the son of the deceased is consistent with the injury report and the postmortem report both of which have been duly proved by producing the doctor who examined the deceased and the doctor who conducted the postmortem of the deceased. Once the ocular testimony of witnesses is found consistent with the medical evidence available on record and the defence has otherwise not been able to show any inconsistency in the statement of eyewitness PW-1 on material aspects, we are of the view that the incident as has been alleged to have occurred has been proved by the prosecution. 15. So far as the statement of accused under Section 313 Cr.P.C. about a different reason (fall on the Plough) is concerned, the same clearly supports the prosecution statement that an injury was caused to the deceased on the eventful day. No defence witness has otherwise been produced on behalf of the accused appellant to substantiate his defence that the cause of injury was other than what has been alleged and substantiated by prosecution in the matter. 16. No defence witness has otherwise been produced on behalf of the accused appellant to substantiate his defence that the cause of injury was other than what has been alleged and substantiated by prosecution in the matter. 16. So far as the argument advanced by counsel for the appellant with regard to the matter being covered by Exception 4 to Section 300 IPC is concerned, it would be worth noticing the provision itself at the outset. Section 300 IPC defines murder. It also contains various exceptions where the offending act would not amount to murder. Exception 4, which is relied upon on behalf of the appellant, reads as under:- “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.” 17. The fourth exception takes out the specified act out of the purview of culpable homicide amounting to murder. Necessary ingredients of Exception 4 are that the offending act 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 to Exception 4 also provides that it is immaterial in such cases as to which party offers the provocation or commits the first assault. When the facts of the present case are viewed in the context of above provision, we find that the prosecution case is specific, inasmuch as, the dispute between the parties erupted suddenly at the time when the son of the deceased was cleaning his drain in front of his house. PW-1, who is the star witness of the prosecution, has clearly admitted that it was during cleaning of drain by him that the accused persons objected to flowing of dirty water in their drain which resulted in sudden fight erupting on the spot. The deceased objected to the protest by accused party by saying that such water was flowing from before on which he was abused and stab injury was caused to him by accused appellant. There is nothing on record to show that there was any premeditation on part of the accused party in inflicting the stab injury which ultimately resulted in septicemia and consequential death. There is nothing on record to show that there was any premeditation on part of the accused party in inflicting the stab injury which ultimately resulted in septicemia and consequential death. The statement of PW-1 as also the contents of FIR clearly go to show that it was a case of sudden fight in the heat of passion upon a sudden quarrel. It is otherwise on record that after the injuries caused to the deceased he was taken to the hospital where he remained hospitalized and ultimately died after five days due to septicemia and hemorrhage on account of ante mortem injuries. 18. We may at this stage refer to the judgment of the Supreme Court in State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227 wherein the Court examined Exception 4 to Section 300 IPC and observed as under: “8. In Virsa Singh [Virsa Singhv. StateofPunjab, AIR 1958 SC 465 : 1958 Cri LJ 818] , in paras 16 and 17, it was observed and held as under : (AIR p. 468) “16. … The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. 17. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. 17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact;….” (emphasis supplied) 9. In Dhirajbhai Gorakhbhai Nayak [Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 : 2003 SCC (Cri) 1809], on applicability of Exception 4 to Section 300 IPC, it was observed and held in para 11 as under : (SCC pp. 327-28) “11. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon 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”.” 10. In Pulicherla Nagaraju [Pulicherla Nagaraju v. State of A.P, (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500] , this Court had an occasion to consider the case of culpable homicide not amounting to murder and the intention to cause death. It was observed and held by this Court that 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.” 19. In light of the deliberations held, we find that the case at hand clearly falls within Exception 4 of Section 300 IPC and, therefore, the appellant could at best be punished for culpable homicide not amounting to murder, under Section 304 IPC, and not under Section 302 IPC. In light of the deliberations held, we find that the case at hand clearly falls within Exception 4 of Section 300 IPC and, therefore, the appellant could at best be punished for culpable homicide not amounting to murder, under Section 304 IPC, and not under Section 302 IPC. It is on record that the appellant was in Jail at the time when charges were framed against him in the year 2003. He has been released from Jail only on 26.1.2019 and, therefore, he has already undergone incarceration of nearly 16 years, even without remission. The appellant is thus convicted under Section 304 IPC and is released on the period of sentence already undergone by him. He shall be released from Jail, forthwith, unless he is wanted in any other cases subject to compliance of Section 437A Cr.P.C. 20. This Jail Appeal is thus partly allowed on above terms. 21. Sri Pramod Kumar Pandey, learned Amicus Curiae has assisted the Court in disposal of the present jail appeal and is entitled to his fee quantified at Rs.15,000/- from the High Court Legal Services Authority.