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8.1 The next submission advanced by the learned counsel for the appellant was that the nature of the offence alleged to have been committed by the appellant cannot by any stretch of imagination be said to be murder as defined in section 300, IPC, but at best can be said to be culpable homicide not amounting to murder under section 304, IPC, for which a punishment lesser than life imprisonment may be imposed on HC-NIC Page 9 of 52 Created On Tue Jan 12 02:37:21 IST 2016 the appellant. Reference was made to Exception 4 to section 300, IPC, which postulates that 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. It was contended that even if the prosecution case is accepted, from the testimonies of the witnesses and the circumstances as emerging from the record, it is evident that there was no premeditation and there was a sudden quarrel and a sudden fight and the incident occurred in the heat of passion whereupon one blow with a pipe which was lying at the spot was inflicted on the deceased. It was also pointed out that the incident had occurred in the compound of the accused which supports the case of the accused that it was the deceased and his sister who were the aggressors. It was submitted that Exception 4 to section 300, IPC would therefore, clearly be attracted in the present case and consequently, the conviction is required to be converted to one under section 304 Part-II instead of section 302 of the Indian Penal Code. It was urged that the appellant has undergone six years imprisonment; he has no criminal antecedents; he has been enlarged on temporary bail on several occasions and no untoward incident has occurred at the time of his release; therefore, having regard to the overall circumstances, the conviction is required to be converted to a lesser offence of section 304 Part-II, IPC.

HC-NIC Page 11 of 52 Created On Tue Jan 12 02:37:21 IST 2016 8.4 Reference was made to an unreported decision of this court in the case of Rajeshkumar @ Raju Lakhubhai Patel v. State of Gujarat rendered on 13.5.2009 in Criminal Appeal No.2014 of 2006 with Criminal Appeal No.2303 of 2006, wherein the court recorded that the quarrel appeared to have heated up into a scuffle when the main accused rushed from his house in spite of recent serious injury in his leg and dealt a blow of an axe without even caring to see the face of the victim. That indicated the gravity of the situation or imminent danger to the person of his brother, who was admittedly surrounded by members of the victim's family, who were otherwise also hostile. The court, accordingly, was of the opinion that even as the injury caused by the main accused was such as was likely to cause death it could not have been his intention to cause death since the situation had arisen without premeditation in a sudden fight and he appeared to have dealt the blow in the heat of passion upon a sudden quarrel. The court further recorded that none of the accused persons appeared to have acted in concert or in an extraordinarily cruel manner so as to take undue advantage of the situation. Under such circumstances, the culpable homicide did not fall in the parameters of clause (3) of section 300, IPC and it satisfied the conditions contained in Exception (4) of section 300, IPC. The court, accordingly, held that the prosecution had succeeded to the extent of proving beyond reasonable doubt the case of culpable homicide not amounting to murder, which would fall in second part of section 304, IPC and, accordingly, altered the conviction to section 304 Part II, IPC and reduced the sentence to rigorous imprisonment of five years with fine of Rs.3,00,000/-. Reliance was also placed upon the decisions of this court in the case of Baldevbhai alias HC-NIC Page 12 of 52 Created On Tue Jan 12 02:37:21 IST 2016 Bachubhai Motibhai Rathod v. State of Gujarat, 2009 (2) GLH 263 and in the case of Dilipbhai Madhubhai Patel v. State of Gujarat, 2002 (2) GLH 152, for a similar proposition of law. Mr. Qureshi submitted that in the present case the facts justify alteration of the sentence to one under section 304 Part- II IPC and that the current trend of decisions of the Supreme Court indicate that instead of imposing sentence, the accused can be called upon to pay compensation to the family members of the deceased. In support of his submission the learned counsel placed reliance upon the decision of the Supreme Court in Manohar Singh v. State of Rajasthan, (2015) 3 SCC 449, wherein the court has held that order of sentence in a criminal case needs due application of mind. There exists a mandatory duty of the court to apply its mind to the award of compensation in every criminal case. It was urged that therefore, a reasonable amount of compensation may be awarded to the family of the victim and a lesser sentence of imprisonment may be imposed.

9. On the other hand, Mr. N. J. Shah, learned Additional Public Prosecutor supported the impugned judgment by submitting that the prosecution has duly established all the parameters necessary for conviction of an offence of murder under section 300, IPC and, therefore, the trial court did not commit any error. Referring to the depositions of the witnesses, it was submitted that the present case would not fall within Exception 4 to section 300, IPC inasmuch as while the murder was not premeditated, it cannot be said that there was a sudden fight as contemplated in the fourth exception to section 300, IPC. Reliance was placed upon the decision of the Supreme Court in the case of Kikar Singh v. State of HC-NIC Page 13 of 52 Created On Tue Jan 12 02:37:21 IST 2016 Rajasthan, (1993) 4 SCC 238, wherein the court has explained the circumstances under which Exception 4 to section 300, IPC would be attracted. It was submitted that if the facts of the present case are considered in the light of the principles enunciated in the above decision, it can be said that the appellant convict acted cruelly with no justification and that by his conduct he has denied himself the benefit of Exception 4 to section 300, IPC.

36. The next ingredient which is required to be satisfied for invoking Exception 4 to section 300, IPC is that the offender must not have taken undue advantage or acted in a cruel or unusual manner. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. Where the deceased is unarmed and does 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. To attract 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, 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. In Kikar Singh's case (supra) the Supreme Court held that if the appellant used deadly weapons against the unarmed man and struck him a blow on the head it must be held that he inflicted the blows with the knowledge that they would likely to cause death and he had taken undue advantage. He did not stop with the first blow, he inflicted two more blows on the fallen one and the third one proved fatal. He acted cruelly with no justification. By his conduct the appellant denied himself the benefit of Exception 4 to section 300, IPC. Reverting to the facts of this case, the deceased was unarmed HC-NIC Page 36 of 52 Created On Tue Jan 12 02:37:21 IST 2016 and intervened in the quarrel between the appellant and Madhuben to pacify the appellant, who picked up an iron pipe lying nearby and dealt more than one blow on the head of the deceased. The fact that more than one blow was inflicted on the head of the deceased is borne out from the postmortem report as well as the testimony of the medical witness. The fact that the appellant was armed whereas the deceased was not, leads to the inference that the appellant took undue advantage and the fact that the appellant did not stop at one blow clearly shows that he acted cruelly without any justification. Consequently, Exception 4 cannot be invoked in the present case. Additionally, the last ingredient which is required to be satisfied viz., that the fight must have been with the person killed, is also not satisfied, inasmuch as, in the present case, the quarrel was between Madhuben and the appellant and there was no fight with the deceased. The appellant, therefore, by his conduct has denied himself the benefit of Exception 4 to section 300, IPC.