CF0000062147 IN THE H20H COURT OB> M. E>, JUDICATURE AT .3-ABM-PUR CRIMINX. APPE&L NO.'C\^.% OF 1999 <"' APPBLIANT (J^^ i^. BABLU @ MAMfiSH JMN, S©n©f^S awa^eshi Jiiia^ a@e<8 ab©ut 26 years, resi<aent ©£ S a<Sar Bazar^ aiata^ara P, S, Bihata^ara^&LstrjLat- ^ RaApur^M,1?, ^ .^ ^^ ,r:^- \k.v* ^' VEESUS RSSPONDENT STATE OF NJOm-A PRA&E3H, thr@U@h Police §tafci©nNevefira^Sistrict- *,M,P, . •^PPB: QNDER S B2TION 374 (2) OF THECODE OP CRIMINAL PRGCEDURE . B~~~ XI-HC-78 3TT^T SFT (<4i<=h cTSrT3TT^?Tsh^ich /y\ *TT*f^TTSt»+11ch 3^r ^|^|<n<q, ^Tfl^^Ko, fc)diy^< ^erA.ftio..JW.%.|^ ^ A.F.R. 3TT^?T 1qraRF (^qI^^T) ^RTT^K ^TfN'W^T DIVISIQNBENCH: - <t)i^?<n41ri ^i^i^l* ^ te^t <Ri«i< ^3Tf^R'3TT^T HON'BLE MR. L.C. BHADOO ^ND HON'BLE MR. V.K. SHRIVAS-rlAVA. JJ. 1 8W2006 Shri S.L. Bajaj.counse! fc Shri U.N.S. Deo, Additior|al Public Prosecutor with Shri G.D. Vasvani, Govt. Advocate for the State/resbondent. Oral Judgment dictated 01 PER L.C. BHADOO. J. This appeal is directed sentence dated 29th April 1999 No.192/98 whereby learned S| appellant guilty for commission committing murder of Mohan for life. The case of the prosecut] -yth/Qth Gopi Yadav (since deceased) ^ r the appellant. i Da/'s. a^ainst the judgment of conviction and order of j^assed bythe Sessions Judge, Raipur in S.T. i|essions Judge after holding the accused/ <>f offence under Section 302 of the I.P.C. for S<|>ni, sentenced him to undergo imprisonment on, in brief, is that in the intervening night of "/8I"April 1998 deceased M^han Soni, accused Bablu @ Mahesh Jain aiong with witnesses PW-5 Shif @ Shatrughan, PW-16 Bharat Lal Yadav & ere roaming in the hotels in front of Railway Station Tilda and they consume^l liquor also at two places. Ultimately, in the mid night, witnesses Shiv @ Sh^trughan, Bharat Lal Yadav and 3rd associate Gopi Yadav left for their resjdei|ice, the accused and the deceased also left the place for other side. When (he accused and deceased Mohan Soni were going towards petrot pump that raised suspicion in the mind of the witnesses as to why they are going to tl^at side, therefore, they also followed them. However, after some distance, 1|hey saw that the accused and the deceased started quarrelling near Sasaholi Railway Cmssing where mercury light was P.T.O. XI-HC-78 3:ST^I<41d^, ^TTl-H^Ko, Rldl^^< +11*1^11 »>^11<*> ^200 311^1 45<ch 3TT^T^T^i<=h cW 3TT^T sR^TW s^RTTW^crW^T ^- burning. They saw that the accu^ Mohan Soni and when he fell dow|n the deceased 4-5 times, as a restlil head, occipital and parietal bor|< Abhaydas, Kotwar of village Sas^holi side of the road whlch was betwe^n Petrol Pump. Amritlal, owner of tl^c Soni as his servant. On this, Abh{ 8-4-98 at about 9 a.m. in the Polic^ The Investigating Officer in^rr after giving notice Ex.-P/2 to the of the dead body of the decea; possession onepair of sleepers, p| stained stone weighjng about 4-i Ex.-P/5. Clothes of the accused The Executive Magistrate conducl] in which witness Shiv jdentjfied prepared. Another identification Executive Magistrate of the accu; accused of which report Ex.-P/K deceased was sent for postmorterrl Tilda under Ex.-P/S where Dr. the postmortem, prepared the re( death is due to severe haemorrhade that there were multiple lacerated to 1/2" in depth and 1/4th" jn brea bone, temporal bone and mastoi Meelna chi^l^i41ri ^i^i^iT ^'te^ <Ri^i< ^3Tf^T3TT^?T )d, in the first instance, slapped deceased i, he attacked with a stone on the head of It of which he sustained fatal injury on the ss were fractured. Next day morning, loli saw the body of Mohan Soni on one Sasaholi Railway Crossing and Saurabh hotel Ambu jdentified the body of Mohan lydas gave a merg intimation (Ex.-P/1) on Station Nevra. in^mediately left for the scene of occurrence, >anchas, prepared Panchanama (Ex.-P/S) ^ed. The Investigating Officer took into |ajn soil & blood stained soil and one blood kg from the place of occurrence under /ere taken into possession under Ex.-P/6. Ijed jdentification parade of accused Bablu le accused of which memo Ex.-P/7 was parade was conducted by the same )ed in which witness Bharat identified the was prepared. The dead body of the examination to the Government Hospital, Samual, Assistant Surgeon, conducted ^ort Ex.-P/30, and opined that cause of as a result of head injury. It was noticed tvounds in the size of 2" to 1" in length, 1" <dth all over the head placed on occipital bone. Right occipital bone was found P.T.O. XI-HC-78 3TT^T^T^Jch cWW^Tsb^ich ^ 3^^TPTR^T, ^TTl^41(o, R<diy^< *IW^TT »i*l|Ch ^[200 3T1^?T<T^7 (^di^^aT) ?^<TTW ^f?cT 3TT^T -^^— fractured. There Were 6 lacerat^d wounds on the head. Smell of alcohol was present in the stomach. Thereafter, First lnformatic|n I.P.C. was registered. The accu^e Dr. A.A; Siddique and as per shoulder, on right forearm and There was cut wound on the inde wound on the middle finger of rj Ex.-P/31 was prepared. examination to the Forensic P/39, P/40, and 41 were receive<|. Patwari. Report Ex.-P/33 under Section 302 of the i4ed was also medically examined by PW-18 th|e report, abrasionswere found on the left o^er right posteriolateral upper part of elbow. inc|ex finger of the right hand. There was cut Ight hand. After examination, injury report Redovered articles were sent for chemical Scjence Laboratory from where reports Ex.- Site plan Ex.-P/4 was prepared by Halka After completion of the ir| Court of Judicial Magistrate 1 case to the Sessions Judge, Raipl The prosecution in order examined 19 witnesses. On the recorded under Section 313 of appearing against him in the pi seizure of his clothes and Deceased Mohan Soni and his he has been falsely implicated in the stat^d Learned Sessions Judge s|fter hearing and counsel for the accused mentioned in para-1 of this judgn^ent. <=hl^I<rl<41v1 ^I^^T ^f tec^t <F^«K ^3Tf^T3:TT^T ir|vestigation, charge sheet was fited in the ilass, Raipur, who in turn, committed the <ur. t|o establish the charge against the accused other hand, statement of the accused was Cr.P.C. in which he denied the material tosecution evidence. Even he denied the that he was at the hotel at Bhatapara. bk'other used to work at his uncle's hotel and the crime. arguments of Public Prosecutor onvicted and sentenced the accused as P.T.Q. XI-HC-78 W^T^Tf^TToF cTSTT3TT^?T$hHi<=h -y 3'^'^^TPTR^T, «irn'y41<S, fs|<ni^^< *11*1ClTShH|Ch t4 ^ 200 {?T^5(<h (^t^q^T) ^RTTW: ^rf?cT 3TT^T ^ We have heard Shri S.L. Legal Aid Commjttee on behall <=bl^f^41r1 ^\H^\\ ^'te^ <p3t«K ^^Tf^TCT^T ?ajaj, Advocate appointed by the High Court of the accused/appellant and Shri U.N.S. Deo, Additional Public Prosecutdr with Shri G.D. Vasvani, Govt. Advocate for the State/respondent. As far as homicidal dealh of deceased Mohan Soni is concerned, learned counsel for the accuse Samual has stated in her evider may be homicidal. therefore, the that the death of deceased Mohs But, perusal of the reci learned counsel for the accusec that as per the evidence of PW- bones wer§found fractured and < \-<?kAA*-^ . —^ parietal aitA-inasteid ben^is. haemorrhage and excessive bl^eding homicidal and injuries were ar\ evidence of PW-5 Shiv @ Shatrijghan crime in question. they have sta{ on his head with a stone, as wounds on the head, parietal is vital organ and the manneil deceased, we have no manner sustained by the deceased anc( medical evidence, death anU of decefesed As far as involvement question is concerned, convicti^ d/appellant argued that PW-17 Dr. Meena ice that the death of deceased Mohan Soni prosecution has not been able to establish n Soni was homicidal. |>rd reveals that arguments advanced by (/appellant is devoid of merit for the reason (17Dr. Meena Samual, occipital and parietal |there were lacerated wounds over occipital, ^he has stated that the death was due to It is possible that the death was Ite-mortem in nature. If we examine the and PW-16 Bharat, who witnessed the ted that the accused attacked the deceased |a result of which he received 6 lacerated ocdpital bones were fractured. The head in which injuries were sustained by the (|)f doubt that in view of the nature of injuries looking to the ocular evidence as well as Mohan Soni was homicidat in nature. ^f the accused/appellant in the crime in |n primarily rests on the ocular evidence of P.T.O. XI-HC-78 3^r<=3TPTI^PT, ^Tfl^^Ko, Rfdl^^< *11+1WSbHlch ^ 200 ^TT^TSFH'f^T^ cT8TT3TR?T$b^l<^ 'v 3ii^i ^sitt) (<{cii^<sj(^saT) ?^TTW ^f?<T 3TT^?T —^- eyewitnesses namely R/V-5 Shiv) have categorically stated that in Yadav (since deceased), accusecf spells and thereafter at about 11 PW-16 Bharat and Gopi teft the the accused left together to anothfer and the accused were going tow^rds where they aregoing, they turn^d distance, in the mercury light started quarrelling and in that when he fell down, the deceased on his head with that the scene of occurrence. accus^d Shatrughanand PW-16 Bharat. They |the fateful night, they along with one Gopi and the deceased consumed liquor in two |15 in the night, RA/-5 Shiv @ Shatrughan, |)lace together whereas, the deceased and '|er side. When they saw that the deceased the wrong side, in order to know as to and sterted following them. After some saw that the deceased and the accused >, the accused slapped the deceased, picked up a stone and attacked the ^tone 4-5 times. Being frightened, they left the|y pr^cess, Learned counsel for the witnesses are cooked up witnesjses incident for the following reasons:^ (1) that as a natural witnesses, accused liquor together, wherj was attacking the dec|s2 they ought to have in^ervened deceased; (2) Witness PW-16 Bh^r PW-9 Ramesh, as h4 Ramesh, next day wtien <^l^?^l41rl HP^ff ^ f^t rf^F^K ^3Tf^T3T1^T pcused/appellant submitted that these two In fact, they had not witnessed the consequence when these jind the deceased consumed they saw that the accused ;|sased, in the ordinary course, and tried to save the trat, who was employee of i4 was working at the hotel of he came on duty, he dfd not disclose about thel incident to him. P.T.O. >-7; XI-HC-78 OT^T^T^Jcb cWW^TsbHlch V . ^- \ -^' 70CI' r^|q|^tq, ^Tfl^^Ko, f^^11^|^< *11*ini Sh+lich ^200 W M5<cb ^RTT^IT ^Tf^T 3TT^T ^k^ Learned counsel for the| Ex.-P/4 prepared by Patwari, it witnesses saw the incident and are said to have witnessed the the incident. appellant further argued that in the map las not been indicated that from which place (ooking to the distance from where witnesses c|rime, it was not possible for them to witness (3) the incident is said interyening night o1 statements of these of the Cr.P.C. were the 1.0., therefore, cannot bebelieved. On the other hand, 1< As far as first point r^ intervened and tried to save Shatrughan has categorically ^ seeing the incident, he along morning, he came to know abouf cross-examination, he has witnessed the crime. He did nol But, in cross-examination, no qu| did not inter/ene when the Bharat has stated that first the a| which the deceased fell down the with stat^d chi^Ici^^i ^i^cnl ^te^t <RI^I< ^3^'q'3TI^T to have been occurred in the 7th/8th April 1998 whereas, witnesses under Section 161 recorded only on 17-4-98 by evidence of these witnesses ^arned counsel for the State/respondent supported the judgment of the tri|al Court. Having heard learned co|unsel for the parties, we have perused the record of the trial Court. ^ised that why these witnesses had not deceased is concerned, PW-5 Shiv @ ^tated in the examination-in-chief that after Bharat came to their house and next day u|t the death of deceased Mohan Soni. In the that it is wrong to say that he has not go to the Police Station on account of fear. u^stion was put to this witness as to why they was assaulting the deceased. PW-16 a|scused slapped the deceased, as a result of |on the earth and thereafter, the accused P.TO. acclised XI-HC-78 3Ti^T^T^i<=h cTSTT3TI^Tsb^l<sb v3^T ^NKn^, ^TH^^KD, Ricni^^< +ll*ic<ll sh+<ich ^200 3TT^?T ^5ich (^i^cK^T) ^TTW^f^TW^T - sflone attacked on his head with a deceased died on the spot. Thi^ the point that as to why they had t|iot inten/ened arld Now, question comes tha| consumed liquor together. It is in particular circumstances how h|e be laid down that a particular manner, in particular situation. upon the nature of a person Shatrughan has stated that whert the deceased, they left for their that these witnesses had not inNn witness the crime, of-course, in 01] of occurrence, their evidence h{ circumspection. Their presence| reason that in the first instance, ir| show that on account of any ani} the accused person. Moreover, t^ and these witnesses consumeld substantiated by the fact that indicates consumption of tiquor b^ who is the owner of hotel of examination, has categorically him, he himself enquired from hin[i liquor, therefore, he may have fact to the Police also. Therefoil deceased, accused and these inNrvened, <?hi^?^i4i^ ^i^^iT ^" r^^ <r^^<i< ^ 3Tf^T 3TT^T 4-5 times, as a result of which the witness has not been cross-examined on why they had not intervened when they djfficult to say anything about a person as to will behave, no hard and fast formula can |>erson will always behave in a particular varies from person to person depending also circumstances. As PW-5 Shiv @ they saw that the accused was attacking ijesidence, therefore, merely on this ground j, it cannot be said that they did not i|der to ascertain their presence at the scene ts to be scrutinized with more care and on the scene cannot be doubted for the their cross-examination, there is nothing to (nosity or bias, they have deposed against ley have stated that the deceased,accused liquot together and this fact stands |the postmortem report of the deceased the deceased. Moreover, PW-9 Ramesh, PW-16 Bharat, in last para of cross- that when Bharat did not disclose to that yesterday night they were consuming nturdered the deceased. He disclosed this |e, consumption of liquor together by the has further been established by the witfiess sNed withesses k.._ P.T.O. XI-HC-78 3^T ^1<11^1^, ^TTl^41<o, Rfdiy^< ^1*4011 Sh+licb ^ 200 3ii^i ^sith (*i<:<i^s'^£r) 3:n^T^T^i<=h c^TT3TT^T$h^i<=b -^A ?^TT8fK ^fN'W^T —S^tn' evidence of PW-9Ramesh. Id <=bi^T^i41^ Hm^ff ^' tecc?!' <Ri<^i< ^3Tf^TW^?T this connection, as far as judgment cited by learned counsel for the accus^d/appellant in the matter of Mohan Singh V. Prem Singh and another principle lajd down in para-2^ because conduct of the witn^ looking to the other aspects o< not intervened in the incident. As far as the question Shatrughan did not disclose thi eported in 2003 CRI. LJ. 11 is concerned, of the judgment is distinguishable on facts sses was not believed by the Apex Court, the case apart from their unnatural conduct, as to why PW-16 Bharat and PW-5 Shiv @ ^ fact to anyone is concemed, PW-9 Ramesh, owner of the hotel where witn^ss Bharat was working, has stated that next day morning when Bharat can^e to his hotel, he did not disclose about the incident. He himself enquired| from Bharat that previous night this witness along with accused, decease<|i and other persons were consuming liquor together, therefore, he may ha^/e committed the crime. As the incident was of the mid night, these witness^s left for their residence, these witnesses had also consumed liquor with the |deceased and the accused, possibility cannot be ruled out that out of fear tftese witnesses had not disclosed this fact to anyone and also as these persjons were in drunken condition which might be the cause for not disclosing th| examination of these witnesse) why they had not disclosed presence on the scene of oc<] their evidence, they consumed| and fact of consumption of tiqi| doctor who conducted postmorl the deceased. In the viscera r^ 3 incident to anyone. Moreover, in the cross- >, it has not been specifically asked for as to this fact immediately to the police. Their ;urrence cannot be doubted because as per liquor together with the accused & deceased, lor has been corroborated by the fact that the ;em found the smell of liquor in the stomach of port. contents of alcohol has also been found. P.T.O. XI-HC-78 3^T ^ 1^1^^, ^Tfl^l^Ko, i^^1l^^< ^l^^l »»^1<*» ^200 311^1 M^ch (^cii^^T) W^TcFrR^Jcb c^TT3TT^T$b^ich V s^.. ^:cfT^T^f?53TRt?T —3— 0}1 accusled There is no cross-examination unnecessary implicate the rhyme or reason. Moreover, established from the fact that h^ various parts of the body i.e. left | medical report Ex.-P/31 prepaj examination of the accused, that it has been mentioned {n the rep| incident was of intervening night o] body of the accused further Therefore, looking to the totality o\ on record, presence of these occurrence and their evjdence insl this aspect that why these persons will in such a hejnous crime without any Involvement of the accused in crime is himself sustained several abrasions on |shoulder, right forearm and fingers as per ted by PW-18 Dr. Siddique after the 4xamination was conducted on 11-4-98 and >{>rt that injuries were 3-4 days old and the ' 7th/8th April 1998, therefore, injuries on the ^stablish his involvement in the crime. the circumstances and evidence available cannot be doubted on the scene of confidence ofthe Court. witrtesses insDire As far as the question, thaf incident as there was dark not possible for them to witnesse^ prosecution and evjdence of assaulting the deceased at a plac|i was possible for these witnesses) Moreover, no specific question hs| to the distance from where they ^ it was not possible for them to w( any substence in this argument al^ hsls Coming to the points rai^ appellant that Patwari, who plan it has not been shown from crime. It is true that Patwari wh<^ <=hi^?<n41'i ^ii^^iT^ teT^t <Rt^i< ^3Tf^T3T^T these witnesses were not able to see the night a|id from where they saw the incident, it was the crime. In the first instance, case ofthe thlese witnesses is that the accused was placje where mercury light was on, therefore, it to witness the crime in the mercury iight. hs|s been put to these witnesses that looking 4re said to have been witnessed the crime, ttness the crime, therefore, we do not find ^o. i^ed by learned counsel for the accused/ prep^red the site plan Ex.-P/4, in the said site Iwhere these witnesses had witnessed the prepared the site plan has not shown the P.T.O. XI-HC-78 3TI^T^T^TW cWW^Tsb^lcb ^>- (® 3^T^Ni<n^, ^in^Ko, (^<ni<H^< +11*1^1 sh+lich ^ 200 3TT^?T 4^ch (^c<t^<s«^T) ^cTTW^^ 3TT^T ^ | O sltated place from where these witnes^es examined as PW-10, who has 98. He has stated that he pre^ared Kotwar. The site plan was not p|' as to from which ptace they ha<| the consi'dered opinion that look|ing case and evidence available or} where witnesses witnessed the 4es witnessed the crime. Patwari has been that he prepared the site plan on 10-4- the site plan after enquiring from the 1-epared after ascertaining from the witnesses witnessed the crime. Therefore, we are of to the totality of the circumstances of the record, merely not showing the place from (trime does not affect the prosecution case. As far as late examinaticjn of the witnesses by the 1.0. i.e. about 10 days after the incident is conc^rned, the question of delay in examining a witness during investigation is n|iaterial only if it js indicative and suggestive of some unfair practice adopted discloses that they along with ^ and their evidence to that effectl report Ex,-P/31. Even smell therefore. in the totality of the| opinion that 10 days' delay in e^ prosecution case. Mere delay in| the testimony of witnesses if jt is| investigating officer is categori <=hi^I<n41'i ^i^<nT^te^t<Ri^i< ^3T^T3:TT^T by 1.0. with a view to jntroduce a cooked up wrtness to falsely support the pr{)secution case. Evidence of a witness does not become untrustworthy mer^y because there was delay in recording his statement. The evidence of P\|V-5 Shiv @ Shatrughan and PW-16 Bharat iccused and the deceased consumed liquor is clear, cogent, convincing and truthful from the fact that the accused himse|f received injuries in the incident as per the f liquor was found in the stomach of the deceased as per the postmorten|i report. Moreover, these witnesses have not been cross-examined on the asriect of delay in examination ofthe witnesses, circumstances, we are of the considered [aminjng these witnesses does not affect the examination of a witness cannot in all cases be termed to be fatal. There majy be several reasons. The Court can act on found to be cogent and credible. Unless the <|;ally asked as to why there was delay in P.T.O. XI-HC-78 3TI^T ^T f^TTpF cT8TT3TT^T5h^i<=b \\ ^. 3rcT ^l^ld^, ^Tfl<-141<o, ^tclK-l^i ^IIH^I sh+lich ^ 200 3TTi^T ^?(ch (^cii^q^T) ?^TTW:^cT3TT^T — \\ examination of the witnessesf therefrom. Itcannot be laid dt there is any delay in examin^tion version becomes suspect. It explanation offered for the del^ and the court accepts the sam^ wjth the conclusion, On the implausible, certainly the Courf affect credibility of the witnessjes principle has been laid down by| Vs. Satish reported in (2005) 3| the defence cannot gain any advantege t?wn as a rule of universal application that if of a particular witness the prosecution |would depend upon several factors. If the jyed examination is plausibleand acceptable as plausible, there is no reason to interfere c|ther hand, if the explanation is found to be can consider it to be one of the factors to who were examined belatedly. The said 1 the Apex Court in the matter of State of U.P. ISCC114. For the foregoing reasor^s, accused, postmortem report of considered opinion that the evj^ence 16 Bharat inspire confidence of any infirmity in their evidence we do not fmd any Hlegality o|i regarding involvement ofthe act In the last, learned coum the facts of the case, it js establ the accused, deceased & witne^s animosity. They consumed accused and the deceased we^e some quarrel ensued and on picked up a stone and attacked |the falls within Exception IV of Sect|on <=M^Td41vi RTR^rf ^ te^ <Ri<^j< ^3Tf^:T3T7^?T >, looking to the medical examination of the the deceased and other record, we are of the of PW-5 Shiv @ Shatrughan and PW- the Court. We have not been able to notice r^garding witnessjng of crime by them, as such o|r infirmity in the judgment of the trial Court ;|;used in crime in question. |el for the accused/appellant argued that from |ished that quarrel took place all of a sudden, ^ses were on friendly terms and there was no pquor together, however, unfortunately, the fre in drunken condition and all of a sudden, trivial matter, the accused, all of a sudden, deceased, therefore, case of the accused iSOOofthel.P.C.. P.T.O. XI-HC-78 STT^ST cR f^TW <T8TT3TT^Tsb^ict) 'Y" Barve ^ 3^cT ;:2TFnoTq', ^rfl^^Ko, f®«ni^< HTq^TT Sf»*T[ch ^[200 ^ 1^1 ^5<Ch g^TT^K ^rfN'W^?T -— appreciate a|rguments In order to accused/appellant, we have p^r on record. Even the prosecutil; stated that the accused, dece^sed in two spells and at about 11.1 the deceased left for one s| occurrence, all of a suddenj accused first slapped the de^ pjcked up a stone and attac|t Ex-P/31 shows that he sustali therefore, this fact further strt deceased and the accused, preparation or pre-meditation up a stoneand attacked the d< or cruel manner, as such, cas^ to Section 300 of the I.P.CJ Section 302 of the I.P.C. and cannot be sustained. In the result, the appeal and sentence imposed upon I.P.C. He is convicted under S to undergo R.l. for 8 years. It 11-4-98 as per arrest memo about Syears 4 months,as s therefore, he be set at liberty f< Sd/- L.C, Bhadoo Judge <=hl^Id41r1 HPT^Tf ^ tel<9' <fa«l< ^^rf^TOT^r advanced by learned counsel for the ^rused the evidence. There is ample evidence >n witnesses in their examinatjon-in-chief have and witnesses consumed liquor together 15 jn the night they set apart, the accused and |de, when they were going at the place of |they started quarrelling, in that quarrel, the ^eased and when he fell down, the accused |ked on his head. Injury report of accused ined abrasions on various parts of the body, mgthens that there was scuffle between the as there was sudden quarrel, without any |and jn a heat of passion, the accused picked ^ceased, the accused had not acted in unusual of the accused is covered under Exception IV therefore, conviction of the accused under ^entence imposed upon him under that Section Ipartly succeeds, while