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2022 DIGILAW 1513 (ALL)

Salim @ Pappu v. State of U. P.

2022-09-20

ASHWANI KUMAR MISHRA, SHIV SHANKER PRASAD

body2022
JUDGMENT : Ashwani Kumar Mishra, J. 1. These two appeals are by the brothers of Dilshad, namely Saleem and Firoz, challenging the judgment and order of conviction and sentence, dated 28/29.8.2008, passed by the Additional Session Judge, Court No.11, Ghaziabad in Session Trial Nos. 383 of 1998 (State vs. Saleem @ Pappu and Firoz) and 309 of 1999 (State vs. Firoz), whereby the accused appellant Saleem @ Pappu has been convicted and sentenced to life imprisonment under Section 302/34 IPC with fine of Rs.10,000/- and has also been convicted and sentenced to ten years rigorous imprisonment under section 307/34 IPC with fine of Rs.5,000/- and accused appellant Firoz has been convicted and sentenced to life imprisonment under Section 302/34 IPC with fine of Rs.10,000/- and has also been convicted and sentenced to ten years rigorous imprisonment under Section 307 IPC with fine of Rs.5,000/- and he has also been convicted and sentenced to one year rigorous imprisonment under Section 25/4 Arms Act with fine of Rs.1,000/-. In default of fine accused appellants are to undergo two years rigorous imprisonment under section 302/34 IPC and one year rigorous imprisonment under Sections 307/34 IPC and 307 IPC and three months rigorous imprisonment under Section 25/4 Arms Act. All the sentences shall run concurrently. 2. Prosecution case, in brief, is that the first informant Tahzeeb alongwith Suhail had gone to meet Mazid Ali (injured witness, PW-2) and his brother-in-law Fasiuddin (deceased) at their workshop and their helper Moinuddin was also present at 09.30 AM, when their neighbour Saleem @ Pappu, Firoz and Dilshad sons of Imamuddin started sweeping areas in front of their workshop such that dust started coming to the workshop of Mazid. Mazid and Fasiuddin accordingly asked the three accused to sprinkle water before sweeping the area so that dust does not come to their workshop and on this Saleem, Firoz and Dilshad started abusing them. Mazid and Fasiudding asked them not to do so on which the accused persons attacked them with knife. Saleem grabbed Fasiuddin and Dilshad stabbed him and Firoz stabbed Mazid. Seeing the occurrence neighbours and adjoining workshop owners rushed to the spot and tried to apprehend the accused persons but they fled. Mazid and Fasiuddin were taken to government hospital where Fasiuddin was declared dead and his dead body was kept in mortuary. Mazid after first aid was taken to Yashoda Hospital and was admitted there. Seeing the occurrence neighbours and adjoining workshop owners rushed to the spot and tried to apprehend the accused persons but they fled. Mazid and Fasiuddin were taken to government hospital where Fasiuddin was declared dead and his dead body was kept in mortuary. Mazid after first aid was taken to Yashoda Hospital and was admitted there. It is with these contents that written report (Ext. Ka-1) was entered in the General Diary and registered as Case Crime No.594 of 1997 on 27.09.1997 at 12.20 PM, under Sections 302/307 IPC, Police Station Sihanigate, District Ghaziabad. Individual role of accused appellant Saleem @ Pappu is of grabbing/catching hold the deceased Fasiuddin while accused appellant Firoz is accused of causing stab injury to Mazid. Section 34 IPC has also been invoked since the prosecution asserted that with a common intent the three accused persons have committed the offence in which one person, namely Fasiuddin, died and another Mazid sustained stab injury. 3. After registration of FIR the investigation proceeded. The Investigating Officer reached the spot and collected the bloodstained and plain earth. The inquest also followed. The inquest witnesses were of the view that the deceased died due to stabbed injury caused on his chest. The post-mortem of the deceased Fasiuddin was conducted on 28.09.1997 and the autopsy doctor opined the cause of death to be shock and haemorrhage due to following ante-mortem injury:- "1. Incised wound 2cm x 1(1/2)cm x chest cavity deep on left side chest 7 cm away from left nipple at 10 o' clock position." 4. A subsequent FIR came to be lodged on 12.10.1997 at 02.00 AM when accused appellant Firoz and Dilshad were arrested on 11.10.1997 at 11.15 PM and two similar knives were recovered from them. The accused persons had no licence to keep such weapons. These two accused persons informed the police that they had killed Fasiuddin and had also injured Mazid with these knives. The recovered knives were sealed separately and recovery memo of two knives and arrest was accordingly prepared. 5. Upon conclusion of investigation charge sheet was submitted against the accused appellants, on which the Magistrate took cognizance and committed the case to the court of sessions, and was registered as Session Trial Nos. 383 of 1998. Charges accordingly were framed against the accused appellants on 26.03.1998 under Sections 302/34 IPC and 307/34 IPC. 5. Upon conclusion of investigation charge sheet was submitted against the accused appellants, on which the Magistrate took cognizance and committed the case to the court of sessions, and was registered as Session Trial Nos. 383 of 1998. Charges accordingly were framed against the accused appellants on 26.03.1998 under Sections 302/34 IPC and 307/34 IPC. Accused appellant Firoz was also charged under Section 25/4 Arms Act in respect of which Session Trial No.309 of 1999 was registered. The accused appellants denied the charges and consequently trial commenced. Both the sessions trial have been tried together. 6. The prosecution in order to establish the charges against accused appellants produced oral testimonies of following witnesses:- 1. Tahzeeb Ahmad PW-1 2. Majid Ali PW-2 3. V.N. Singh PW-3 4. Dr. Chiranji Lal PW-4 5. Panna Lal Sharma PW-5 6. R.A.S. Yadav PW-6 7. Braj Kumar PW-7 8. M.C. Gautam PW-8 9. Virendra Singh PW-9 10. Charan Singh Yadav PW-10 11. Dharam Pal Singh PW-11 12. Wasif Ali PW-12 13. Dr. Sangeeta Garg PW-13 14. Dr. Vinesh Kumar PW-14 7. Documentary evidences have also been adduced by the prosecution consisting of two FIRs as Ex.Ka. 4 & 14; written report as Ex.Ka.1; recovery memo of bloodstained and plain earth as Ex.Ka. 17; recovery memo of knife and arrest as Ex. Ka.11; postmortem report Ex.Ka. 3; two site plan with index as Ex.Ka.12 & 16. 8. On the basis of oral and documentary evidence, thus adduced, the trial court has found the accused appellants guilty of offence and has consequently convicted them. Aggrieved by the judgement of conviction and sentence the accused appellants have preferred these appeals before this Court. 9. On behalf of the accused appellants three submissions have been made. First and foremost it is urged that the accused appellants have been falsely implicated in the present case and the weight of evidence on record does not support their conviction and sentence. It is then urged that the incident, as alleged by the prosecution, occurred at spur of the moment and there was neither any pre-meditation nor any common intent to commit the offence. It is, therefore, argued that section 34 IPC cannot be invoked in the facts of the case since common intention on part of the two accused appellants was clearly lacking. It is, therefore, argued that section 34 IPC cannot be invoked in the facts of the case since common intention on part of the two accused appellants was clearly lacking. It is submitted that the accused appellants can at best be punished for their individual act and not under section 302 read with Section 34 IPC. It is lastly urged stated that only a single stab wound has been inflicted in the heat of the moment and, therefore, intent to murder the deceased was not established. It is submitted that there was no intention on part of the accused appellants to murder the deceased Fasiuddin and the incident occurred over a trivial issue, at the spur of the moment without any pre-meditation and, therefore, even if section 34 IPC is applied, yet, none of the accused appellants are liable to be punished under section 302 IPC and can at best be punished under section 304 part II IPC. It is also submitted that though the accused appellant Saleem has been granted bail vide order dated 22.01.2009 but the accused appellant Firoz is in jail since 28.08.2008. 10. Learned A.G.A. for the State, per contra, states that the weight of evidence clearly supports the conclusion drawn by the trial court inasmuch three accused persons committed the offence with a common intent and, therefore, section 34 IPC rightly invoked. It is urged that the intent on record shows that all three accused went inside the workshop to fetch knife whereafter the incident occurred and, therefore, there is clear evidence that common intention was formed at the spur of the moment and the argument that the accused appellants can be punished for their individual role cannot be accepted. Learned A.G.A. also states that this is a case of broad daylight incident in which one person is killed while other sustained grievous stab wound, as such the conviction and sentence awarded to accused appellants suffers from no infirmity. 11. We have heard Sri Kamlesh Kumar, learned counsel, assisted by Sri Kandarp Srivastava and Sri Pankaj Govil for the accused appellants and Km. Meena, learned A.G.A. for the State and have perused the records brought on record. 12. We may note that accused Dilshad who was assigned the role of stabbing the deceased Fasiuddin was found juvenile at the time of occurrence of crime and was dealt with as per the law applicable. 13. Meena, learned A.G.A. for the State and have perused the records brought on record. 12. We may note that accused Dilshad who was assigned the role of stabbing the deceased Fasiuddin was found juvenile at the time of occurrence of crime and was dealt with as per the law applicable. 13. Prosecution case in addition to documentary evidence, referred to above, has adduced oral testimonies of Tahzeeb Ahmad PW-1, Injured Witness Mazid Ali PW-2 and Wasif Ali PW-12 to prove the incident. PW-1 has supported the FIR version that he had come to workshop of Mazid Ali at 09.30 in the morning and in his presence Mazid, Fasiuddin and Moinuddin asked the accused persons to sprinkle water before sweeping the area so that dust does not come to their workshop on which the accused persons started abusing and when they were objected then the three accused with a common intent came forwarded and Saleem caught hold of deceased Fasiuddin while Dilshad stabbed him. Firoz is stated to have stabbed Mazid. In his cross-examination PW-1 has claimed that his workshop is at a distance of nearly 750 meters from the place of occurrence and he used to get his machine repaired at the workshop of Firoz. He has explained that in FIR he has narrated that he had gone to meet Mazid and that his visit was due to any work was not disclosed. Sohail has a shop about 3-4 kilometres from the place of occurrence. PW-1 has also stated that alongwith him Sohail and Mazid are from the same place and that the incident occurred when they reached the workshop of Mazid. The witness also stated that alongwith him Ahteshyam and one other worker went to police station but Ahteshyam, who happens to be brother-in-law of Mazid, has not been produced. Ahteshyam was called on phone who arrived 35-40 minutes later by his Maruti Car. However, they had gone to police station by rickshaw. It is also stated that when they took Mazid to police station for lodging the report he was conscious and in his senses. PW-1 has stated that the entire incident occurred within 5-7 minutes. He has emphasised that the incident occurred at spur of the moment and they could not apprehend the accused. 14. It is also stated that when they took Mazid to police station for lodging the report he was conscious and in his senses. PW-1 has stated that the entire incident occurred within 5-7 minutes. He has emphasised that the incident occurred at spur of the moment and they could not apprehend the accused. 14. PW-2 Mazid Ali (injured witness) has stated that alongwith him deceased Fasiuddin and helper Moinuddin were present at the workshop and Tahzeeb and Sohail had come to meet them. He has stated that his workshop adjoins the workshop of accused appellants. He has also supported the FIR version and has stated that with intent to kill him and Fasiuddin the accused persons stabbed him. He was admitted to Yasodha Hospital and that he was operated upon on account of stab wound. In the cross-examination the injured witness Mazid has admitted that the accused persons used to sweep the area in front of their workshop in the same way everyday but no incident in respect of it had occurred earlier and that it was only on the date of occurrence that such a dispute had arisen. He has specifically stated that Dilshad was not carrying knife when he was sweeping the area in front of their workshop and that these persons must have gone inside the workshop to get the knife and thereafter stabbed him. He has however feigned ignorance whether the accused had gone inside the workshop to fetch the knife after the altercation and it is not known as to how much time they took to come out. He also denied that he sustained injury elsewhere and they have falsely implicated the accused appellants. 15. PW-12 Wasif Ali was not shown to be the person present at the place of occurrence in the FIR. He has disclosed that he was standing near the workshop of Mazid. In his cross-examination he claims to be running a STD Booth at Kavi Nagar and used to cross the workshop of Mazid every morning. He has denied the suggestion that there existed open space between the workshop of Mazid and the accused persons. 16. Upon careful examination of the statement of witnesses PW-1, PW-2 and PW-12, we find that their presence on the spot has been explained. PW-1 was otherwise known to PW-2 as they hail from same area and his presence at the workshop cannot be doubted. 16. Upon careful examination of the statement of witnesses PW-1, PW-2 and PW-12, we find that their presence on the spot has been explained. PW-1 was otherwise known to PW-2 as they hail from same area and his presence at the workshop cannot be doubted. Similarly, PW-12 alleged that he crossed the workshop of Mazid everyday in the morning for going to his STD Booth, therefore, his presence on the spot also cannot be doubted. PW-2 is an injured witness and place of occurrence is his workshop. All three witnesses have supported the FIR version and have clearly stated the manner in which fight erupted. They have been consistent in assigning the role of catching hold to Saleem; stabbing by Dilshad to Fasiuddin; and stabbing by Firoz to Mazid. The statement of PW-1, PW-2 and PW-12 is clearly corroborated by the medical evidence, which refers to stab wound caused to deceased Fasiuddin as also injured PW-2. 17. From the evidence placed before us we have no doubt that the incident had actually occurred in front of workshop of Mazid wherein the accused persons stabbed Fasiuddin and Mazid, resulting in death of Fasiuddin and stab wound caused to Mazid. The finding of the trial court in that regard, accordingly, is confirmed. 18. It is next to be seen in the facts of the case as to whether the offence attributed to accused appellants was committed on account of common intention between three accused persons or they are to be held liable only for their own act. 19. Section 34 IPC is relevant and is reproduced hereinafter:- "34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." 20. It is by now well settled that principles of joint liability in committing an offence is contemplated under section 34 IPC. The factum of joint liability in committing the offence is dependent upon existence of common intention pursuant to which three accused acted in furtherance of their common intention. 21. It is by now well settled that principles of joint liability in committing an offence is contemplated under section 34 IPC. The factum of joint liability in committing the offence is dependent upon existence of common intention pursuant to which three accused acted in furtherance of their common intention. 21. In Ramashish Yadav and others vs. State of Bihar, (1998) 8 SCC 555 the Court has observed as in following words:- "Coming to the question of applicability of section 34 for the murder of Tapeshwar, we find from the evidence of the three eye witnesses that while Ram Pravesh Yadav and Ramanand Yadav caught hold of Tapeshwar, accused Samundar Yadav and Sheo Layak Yadav came with gandasa and gave blows on the head of Tapeshwar, as a result of which Tapeshwar died, section 34 lays down a principle of joint liability in the doing of a criminal act. The absence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a prearranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of mind may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack." 22. In a recent decision in Gulab vs. State of U.P. and others being Criminal Appeal No.81 of 2021 the ingredients of section 34 IPC has been summed up in para 24 to 27, which are reproduced hereinafter:- "24. Emphasizing the fundamental principles underlying Section 34, this Court held that: (i) Section 34 does not create a distinct offence, but is a principle of constructive liability; (ii) In order to incur a joint liability for an offence there must be a pre-arranged and pre-mediated concert between the accused persons for doing the act actually done; (iii) There may not be a long interval between the act and the pre-meditation and the plan may be formed suddenly. In order for Section 34 to apply, it is not necessary that the prosecution must prove an act was done by a particular person; and (iv) The provision is intended to cover cases where a number of persons act together and on the facts of the case, it is not possible for the prosecution to prove who actually committed the crime. 25. These principles have been adopted and applied in another two judge Bench decision of this Court in Chhota Ahirwar v. State of Madhya Pradesh, 2020 (213) AIC 66. Justice Indira Banerjee speaking for the two-judge Bench observed: "26. To attract Section 34 of the Penal Code, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention [see Asoke Basak [Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660 : (2011) 1 SCC (Cri) 85], SCC p. 669]. To quote from the judgment of the Privy Council in the famous case of Barendra Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 : (1924-25) 52 IA 40 : AIR 1925 PC 1 ], "they also serve who stand and wait". 27. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other." 26. In Dhanpal v. State (NCT of Delhi), 2020 (112) ACC 813 (SC) the appellant had exhorted a co-accused to kill the deceased. The exhortation was not repeated by the eyewitnesses in identical terms. Further, it was also alleged that there was no neutral witness since all the eyewitnesses were related to the deceased and there was a delay in lodging the FIR. Justice Aniruddha Bose speaking for the two judge Bench of this Court observed: "8. There are sufficient materials, however, to establish that the three appellants had returned together to the place of occurrence and attacked the deceased victim with Dhanpal exhorting to kill Ajay. They had grappled the victim and said Kamal inflicted multiple injuries on him with the knife. Justice Aniruddha Bose speaking for the two judge Bench of this Court observed: "8. There are sufficient materials, however, to establish that the three appellants had returned together to the place of occurrence and attacked the deceased victim with Dhanpal exhorting to kill Ajay. They had grappled the victim and said Kamal inflicted multiple injuries on him with the knife. On the basis of evidence disclosed, the trial court and the High Court found that there was prior meeting of minds of all the four convicts and all the three appellants had intention common with that of Kamal. On this point, the ratio of the judgment of this Court in Asif Khan v. State of Maharashtra, (2019) 5 SCC 210 : (2019) 2 SCC (Cri) 484 is relevant. In an earlier case, Rajkishore Purohit v. State of M.P., (2017) 9 SCC 483 : (2017) 3 SCC (Cri) 749, it has been held that to establish common intention to cause murder, overt act or possession of weapons by all the accused persons is not necessary. In Richhpal Singh Meena v. Ghasi, (2014) 8 SCC 918 : (2014) 6 SCC (Cri) 424, the ratio is that in the event the nature of the assault is such that the target person is likely to die from the injuries resulting therefrom, the accused must be deemed to have known the consequences of his act. ..... 11. We find the approach of the trial court and the High Court in appeal was proper in dealing with the discrepancies pointed out on behalf of the appellants. The delay in registering the FIR has been explained properly and judgment of conviction cannot fail for that reason. It is a fact that the eyewitnesses were known to the deceased and there was no neutral witness. But for that factor alone we cannot exonerate the appellants, particularly since the court of first instance and the first appellate court have already examined the evidence and given their findings in favour of prosecution. We do not find any error in the judgment of conviction and order of sentence so far as the appellants are concerned. But for that factor alone we cannot exonerate the appellants, particularly since the court of first instance and the first appellate court have already examined the evidence and given their findings in favour of prosecution. We do not find any error in the judgment of conviction and order of sentence so far as the appellants are concerned. All the three appeals are dismissed." Recently in Sandeep v. State of Haryana, 2021 (225) AIC 108 (SC) a two-judge Bench of this Court held that an exhortation given by an accused immediately before a co-accused fired a shot killing the deceased would prove his involvement in the crime beyond reasonable doubt. Accordingly, this Court upheld the conviction of the accused under Sections 302 and 34 of the IPC. 27. The evidence on the record clearly establishes a common intention in pursuance of which the appellant exhorted Idrish to kill the deceased. The prosecution is not required to prove that there was an elaborate plan between the accused to kill the deceased or a plan was in existence for a long time. A common intention to commit the crime is proved if the accused by their words or action indicate their assent to join in the commission of the crime. The appellant reached the spot with a lathi, along with Idrish who had a pistol. The appellant's exhortation was crucial to the commission of the crime since it was only after he made the statement that the enemy has been found, that Idrish fired the fatal shot. The role of the appellant, his presence at the spot and the nature of the exhortation have all emerged from the consistent account of the three eye-witnesses." 23. In light of the settled position in law we are required to examine as to whether there existed common intention on part of the accused appellants in committing the offence. 24. It may be noticed that all the three accused are real brothers. They were present when the incident occurred in which they were objected to by the deceased and injured from sweeping before sprinkling water, so as to avoid dust coming to their workshop. The sudden fight which erupted thereafter was between the three brothers on one side and the deceased as well as injured on the other side. They were present when the incident occurred in which they were objected to by the deceased and injured from sweeping before sprinkling water, so as to avoid dust coming to their workshop. The sudden fight which erupted thereafter was between the three brothers on one side and the deceased as well as injured on the other side. PW-2 in his statement has stated that Dilshad was not carrying knife when he was sweeping the area in front of their workshop. It appears otherwise logical that a person sweeping the floor outside his workshop would not be carrying arms (knife here). This witness appears to be a natural witness who has asserted that he had not seen the accused persons going inside the workshop to fetch knife but it remains undisputed that the injury was caused by the accused persons to Fasiuddin and Mazid. These persons must have got the knife after the fight, though in the heat of moment at that spur. Specific role has been assigned to all three accused inasmuch as one of the brothers caught hold of the deceased Fasiuddin while Dilshad stabbed him and Firoz stabbed Mazid. The manner in which offence occurred clearly indicates that at spur of the moment common intention was formed between the three brothers which resulted in stab injury caused to deceased Fasiuddin and injured witness Mazid. 25. Law is otherwise settled that in order to incur joint liability for an offence there need not be a long interval between the act or pre-meditation and the plan may be formed suddenly. We, therefore, are in agreement with the conclusion drawn by the trial court that section 34 IPC would be attracted in the facts of the case and each of the accused would be held liable for offence under section 302 IPC. 26. This takes us to the last question urged on behalf of the accused appellant in the present two appeals whether trial court was justified in sentencing the accused appellants under section 302 IPC. According to the accused appellants the maximum punishment which could be imposed upon them is under section 304 part II IPC. 27. The prosecution case clearly is that it was at the spur of moment that a fight erupted when the deceased and injured objected to sweeping the area in front of workshop of accused appellants without sprinkling water. According to the accused appellants the maximum punishment which could be imposed upon them is under section 304 part II IPC. 27. The prosecution case clearly is that it was at the spur of moment that a fight erupted when the deceased and injured objected to sweeping the area in front of workshop of accused appellants without sprinkling water. The witnesses present on spot i.e. PW-1, PW-2 and PW-12 have stated that it was at spur of the moment that incident occurred in which one of the persons has died while other sustained stab injury. It is also admitted to the prosecution witnesses that no such incident occurred earlier although accused appellants used to clean the area in similar fashion. In such circumstances, it is apparent that there was no pre-meditation on part of the accused appellants in committing the offence which occurred at the spur of moment. 28. Learned counsel for the accused appellants has urged that the incident in question would be covered under the fourth exception to section 300 IPC, which 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." 29. 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 Singh v. State of Punjab, 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. 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. 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. 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. 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. 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. 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. 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." 30. Necessary ingredients to attract 4th Exception to section 300 IPC are clearly present in the facts of the present case inasmuch as death is caused; there existed no pre-meditation; it was a sudden fight; the offender has not taken undue advantage or acted in a cruel or unusual manner, therefore, the case in hand clearly falls under fourth exception to section 300 IPC. The accused appellants are accordingly sentenced to ten years imprisonment under Section 304 Part I IPC, by substituting the sentence of life imprisonment awarded to them under Section 302 IPC. 31. It is on record that the accused appellant Saleem @ Pappu was arrested and was on bail during trial and has also been granted bail by this Court on 12.10.1997, during pendency of appeal. Accused appellant Firoz was arrested on 12.10.1997 and he is in jail since then and by now he has already undergone incarceration of nearly 25 years. It is on record that the accused appellant Saleem @ Pappu was arrested and was on bail during trial and has also been granted bail by this Court on 12.10.1997, during pendency of appeal. Accused appellant Firoz was arrested on 12.10.1997 and he is in jail since then and by now he has already undergone incarceration of nearly 25 years. Since the appellant Saleem @ Pappu is on bail, his sureties and bonds stand cancelled and he be taken into custody for serving his remaining sentence, and the appellant Firoz shall be released from Jail, forthwith, unless he is wanted in any other case, subject to compliance of Section 437A Cr.P.C. Fine imposed upon the accused appellants is maintained. 32. Both the appeals are thus partly allowed on above terms.