DILIP KUMAR MONDAL & ANR. versus STATE OF WEST BENGAL
[2015] 1 S.C.R. 907, Supreme Court of India, 2015
Outcome: Disposed off
Segment: Facts
[2015] 1 S.C.R. 907 
DILIP KUMAR MONDAL & ANR. 
v. 
STATE OF WEST BENGAL 
(Criminal Appeal No. 82 of 2015) 
JANUARY 14, 2015 
[T.S. THAKUR AND R. BANUMATHI, JJ.] 
A 
B 
Penal Code, 1860: ss. 302134 - Allegation that PW-3, the 
brother of deceased was working with his sons PW-11 and 
PW-12 in his field - Deceased and his son PW-10 on bullock C 
cart crossed the field of appellants-accused to which 
appellants objected resulting in altercation - One appellant 
inflicted injuries in the abdomen of the deceased with the pasli 
and other appellant attacked him with a dau - When PW-10 
tried to rescue his father, he was also badly beaten by the D 
accused - PWs11 and 12 were also assaulted - Courts 
below convicted the appellant ulss.302134 - Held: The 
contradiction pointed out in the evidence of the witnesses and 
the discrepancies in the prosecution case were duly 
considered by the courts below -
The contradictions so 
E 
pointed out by the appellants did not create infirmity in the 
prosecution case - The defence plea that the false case was 
foisted on the accused due to political rivalry was not 
substantiated - On the evidence of injured witnesses and 
other, the courts below had correctly recorded concurrent F 
findings of fact that the appellants inflicted fatal injuries on the 
deceased -
The entire evidence and the facts and 
circumstances of the case showed that there was no 
premeditation on the part of the appellants and the incident 
was a sudden fight and the
scuffle between the parties led to 
the causing of injuries to the deceased - Considering the G 
injuries, it cannot be said that accused took undue advantage 
of the situation - Offence fall u/s. 300 Exception 4 - Conviction 
of the appellants modified and altered to one u/s.304 Part I. 
907 
H
908 
SUPREME COURT REPORTS 
[2015) 1 S.C.R. 
A 
Disposing of the appeal, the court 
HELD: 1. The contention was raised by the defence 
that the details of attack with dau were not mentioned in 
the complaint. By and large, people cannot be expected 
8 
to have a photographic memory of the incident to recall 
the minute details of the incident. Immediately after the 
incident, PW-3 must have been under shock and in such 
disturbed mental condition, while he was narrating the 
incident to Pradhan of village to reduce the complaint into 
writing, PW-3 might have omitted to mention that second 
C appellant caused hurt to the deceased with dau. Such 
omission, would not affect the credibility of evidence of 
PW-3. Evidence of PW-11 amply corroborated the 
evidence of PWs 3 and 10. Evidence of injured witnesses 
PWs 10 and 11 lent credence to their testimony and their 
D evidence is entitled to great weight. Despite searching 
cross-examination, nothing substantial was elicited from 
PWs 10 and 11 to discredit their evidence. PW-6 who was 
doing agricultural work in his field had also stated that 
he had heard one jhamela and when he went to the place 
E of incident, a maramari took place. PW-6 had spoken 
about the overt act of each of the appellants and causing 
injuries to the deceased and others. The contradiction 
pointed out in the evidence of the witnesses and the 
discrepancies in the prosecution case were duly 
F 
considered by the courts below. [Paras 11 to 14] [913-E-
H; 914-F-H; 915-A-B] 
2. Having agreed with the findings of the courts 
below that the appellants inflicted fatal injuries on the 
body of the deceased, it is to be ascertained whether or 
G not it was a result of pre-meditation and whether the 
conviction of the appellants under Section 302 IPC is 
sustainable. The accused persons were objecting to the 
entry of the bullock cart in their field and before the attack, 
there was a wordy altercation. The totality of the facts and 
H circumstances of the case showed that the incident was
DILIP KUMAR MONDAL & ANR. v. STATE OF WEST 909 
BENGAL 
not a premeditated one. The accused had been objecting 
A 
to the ingress and egress of the bullock cart in their field 
and no sooner did the deceased try to enter their field, 
than a free fight ensued between the parties. Insofar as 
the contention of the prosecution, that the accused were 
already armed with deadly weapons to pounce upon the 
B 
deceased-complainant party, it appears to be not 
acceptable as the accused party were proceeding to their 
fields for carrying out their agricultural work and, 
therefore, it is quite normal for them to possess such 
agricultural instruments which are used as weapons in c 
this case. Upon consideration of the entire evidence and 
the facts and circumstances of the case, there was no 
premeditation on the part of the appellants and the 
incident was a sudden fight. (Paras 18, 23] (916-C-E; 919-
F-H; 920-A-B] 
D 
3. In order to invoke Exception 4 to Section 300 IPC, 
it must be f1,1rther shown that the offender has not taken 
undue advantage or acted in a cruel or unusual manner. 
The appellants are said to have inflicted injuries with 
henso and dau. A perusal of post-mortem certificate 
E 
showed that the deceased sustained one incised injury 
on the back which has caused injury to scapula and 
spinal cord and another incised wound over the back just 
below the right scapula causing injury to the right lung 
and pleura. PW-10 was discharged from the hospital after 
F
giving first aid treatment indicating thereby that the injury 
was not grievous. Considering the injuries, it cannot- be 
said that the accused had taken undue advantage of the 
situation. The incident was not premeditated and the 
scuffle between the parties led to the causing of injuries 
G 
to the deceased and considering the circumstances of 
the case, the offence would fall under Section 300 IPC 
Exception 4 and the conviction of the appellants is 
modified and altered under Section 304 Part I IPC. [Para 
24] (920-C-F] 
H
910 
SUPREME COURT REPORTS 
(2015) 1 S.C.R. 
A 
Sridhar Bhuyan v. State of Orissa (2004) 11 SCC 395 : 
2004 (3) Suppl. SCR 395 - relied on. 
Case Law Reference: 
2004 (3 ) Suppl. SCR 395 
Relied on 
Para 22 
B 
CRIMINAL·APPELLATE JURISDICTION: Crimina! Appeal 
No. 82 of 2015. 
From the Judgment and Order dated 13.02.2012 of the 
Division Bench of Calcutta High Court in C.R.A. No. 747 of 
c 2008. 
D 
Pijush K. Roy, Ms. Kakali Roy, Mithilesh Kumar Singh for 
the Appellants. 
Shagun Matta (For Anip Sachthey) for the Respondent. 
The Judgment of the Court was delivered by 
R. BANUMATHI, J. 1. Leave granted. 
E 
2. This appeal arises out of the judgment of the Calcutta 
High Court dated 13.2.2012 passed in C.R.A. No.747/2008, 
in and by which, the High Court confirmed the conviction of the 
appellants under Section 302/34 IPC and the sentence of life 
imprisonment imposed upon them and set aside the conviction 
F of the appellants under Section 326 IPC. 
3. Briefly stated case of the prosecution is as under:-
Complainant - PW 3 -Fatik Chandra Debnath is the brother 
of the deceased Nripen Debnath. On 22.11.1998 at about 
10.00 A.M. the complainant along with his two sons namely, 
G PW-11 Ranjit Debnath and PW-12 Santosh Debnath was doing 
agricultural work in his field-collecting harvested paddy crops 
and tying the same. Deceased Nripen Debnath, brother of the 
complainant and his son Nikhil Debnath (PW-10) proceeded 
towards the field in a bullock cart for bringing the bundles
of 
H harvested paddy crops. The only way to reach their field was
DILIP KUMAR MONDAL & ANR. v. STATE OF WEST 911 
BENGAL [R. BANUMATHI, J.] 
through the field belonging to the accused persons and as A 
soon as the bullock cart touched the border of the field of the 
accused, the accused took exception to the same, which 
resulted in a wordy altercation between the parties and injuries 
were inflicted by the appellants on the deceased and 
witnesses. Appellant Dinesh inflicted injuries in the abdomen 
B 
of Nripen Debnath with the pasli and the appellant Dilip 
attacked him with a dau. The other two accused also assaulted 
the deceased. When Nikhil Debnath (PW-10) tried to rescue 
his father, he was also badly beaten by the accused. On seeing 
the incident, PW-3 -Fatik Chandra Debnath rushed to the place c 
of incident and raised alarm. In the process, PW 11-Ranjit 
Debnath and PW-12-Santosh Debnath also sustained injuries. 
On hearing hues and cries, the villagers gathered at the place 
and the accused fled away. 
4. All the four injured persons were immediately taken to D 
Godhanpara Hospital wherein PW-10-Nikhil Debnath and PW-
11 -Ranjit Debnath were discharged after first aid. As the 
condition of Nripen Debnath and PW-12 Santosh Debnath was 
precarious, they were referred to N.G. Hospital, Berhampore. 
Nripen Debnath succumbed to the injuries on his way to the 
E 
hospital. 
5. Law was set in motion by PW-3 Fatik Chandra Debnath 
by lodging a complaint at Police Station Raninagar, District 
Murshidabad. On the basis of the complaint,
a case was 
F 
registered under Section 302/34 IPC and 326/34 IPC against 
the accused persons. PW-14 Dr. Gobinda Banerjee conducted 
autopsy on the body of Nripen Debnath and PW-14 opined that 
the death was due to shock and haemorrhage and issued Ex 
P6-Post mortem certificate. After completion of due G 
investigation, chargesheet was filed against the appellants and 
two other accused under the above stated provisions. To prove 
the charges against the accused, prosecution has examined 
16 witnesses and exhibited a number of documents and 
material objects. The accused were questioned under Section 
H
912 · 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A 
313 Cr.P.C. about the incriminating evidence and the 
circumstances but the accused denied all of them and pleaded 
innocence. The accused have stated that they have been falsely 
implicated due to political rivalry and they have been victimized 
B 
6. Upon consideration of oral and documentary evidence, 
the Sessions Court convicted the appellants under Sections 
302/34 IPC and 326/34 IPC and sentenced them to undergo 
imprisonment for life and to pay a fine of Rs.2000/- with default 
clause. For the offence under Section 326 IPC, the accused 
C 
were sentenced to undergo imprisonment for three years and 
to pay a fine of Rs.1000/- with default clause. Accused Arjun 
Mondal was acquitted of all the charges giving him the benefit 
of doubt. Fourth accused-Vipad died pending trial. Aggrieved 
by the conviction, the appellants preferred appeal before the 
D 
High Court of Calcutta which by the impugned judgment has 
confirmed the conviction of the appellants under Section 302/ 
34 IPC and the sentence of life imprisonment imposed on them. 
Their conviction under Section 326 IPC was set aside. Being 
aggrieved, the appellants have preferred this appeal by special 
E 
leave. 
F 
7. Assailing the conviction of the appellants, learned 
counsel for the appellants contended that the testimony of the 
witnesses suffered from serious contradictions and 
inconsistencies and they could not be said to be reliable. It was 
submitted that
the appellants had been falsely implicated in the 
case on account of political rivalry, which aspect was not 
properly considered by the courts below. 
8. Contrariwise, learned counsel appearing for the 
G respondent-State contended that there is no material 
contradiction in the testimony of the witnesses affecting their 
veracity. It was contended that the accused were already armed 
with deadly weapons with which the appellants inflicted injuries 
on the deceased and the complainant party. It was submitted 
H 
that after inflicting fatal injuries on the deceased, appellant Dilip
• 
DILIP KUMAR MONDAL & ANR. v. STATE OF WEST 913 
BENGAL [R. BANUMATHI, J.] 
rushed to hospital, just only to evade arrest. It was urged that A 
there is no political rivalry between the parties and courts below 
rightly negatived the defence put forth by the appellants. 
9. We have given our thoughtful consideration to the 
contentions urged by the counsel for the parties and perused 
8 
the impugned judgment and the materials on record. 
10. PW-3-Fatik Chandra Debnath, brother of the 
deceased, has deposed that at the relevant time he was busy 
in the field with his sons in collecting the harvested paddy and 
he witnessed the incident from his field which is adjacent to the C 
place of incident. PW-3 stated that the appellants assaulted his 
brother Nripen Debnath in the abdomen and when his nephew 
Nikhil, PW-3 rushed with his son$ PW-11 Ranjit Debnath and 
PW-12 Santosh Debnath to rescue his brother, his sons PWs 
11 and 12 were also assaulted. PW-3 being the eye-witness, 
D 
his evidence was relied upon as creditworthy by the courts 
below. 
11. Evidence of PW-3-Fatik Chandra Debnath is assailed 
contending that in the complaint lodged by him, it is not E 
mentioned that Dilip caused hurt to Nripen Debnath with dau 
and the only fact that is mentioned there is that appellant Dinesh 
chopped the stomach of the deceased and other accused also 
joined in the assault. Additionally, it was submitted that PW-3 
had rushed to the place of occurrence only after the fight had
started, so there arose doubt as to the veracity of PW-3. Insofar 
F 
as the contention that the details of attack with dau are not 
mentioned in the complaint, by and large, people cannot be 
expected to have a photographic memory of the incident to 
recall the minute details of the incident. Immediately after the 
incident, PW-3 must have been under shock and in such G 
disturbed mental condition, While he was narrating the incident 
to Pradhan of village to reduce the complaint into writing, PW-
3 might have omitted to mention that Dilip caused hurt to Nripen 
Debnath with dau. Such omission, in our considered view, does 
not affect the credibility of evidence of PW-3. Insofar as the plea 
H
914 
SUPREME COURT REPORTS 
[2015) 1 S.C.R. 
A 
that PW-3 could not have witnessed the assault as he reached 
the scene after the fight started is not sustainable for the reason 
that the place of occurrence is just adjacent land within a short 
distance. Obviously, even from his field, PW-3 must have seen 
the attack before he rushed to the rescue of his brother Nripen 
B Debnath. 
12. PW-10 Nikhil Debnath son of deceased Nripen 
Debnath has also sustained injuries while he was trying to 
rescue his father and PW-10 had spoken about the incident. 
PW-10 Nikhil Debnath deposed that on 22.11.1998 at about 
C 10.00 AM. while he was proceeding with his father on a bullock 
cart towards the field where his uncle PW-3-Fatik Chandra 
Debnath was collecting harvested paddy crops, the accused 
persons who were in their landed property shouted that no one 
could enter the landed property and immediately after their 
D entering the land of the accused, the appellants attacked his 
father and inflicted injuries on him and when PW-10 tried to 
rescue his father, they also assaulted him. PW-11 -Ranjit 
Debnath son of PW-3 -Fatik Chandra Debnath who also 
sustained injuries had deposed that the accused threatened the 
E deceased as soon as bullock cart entered the land of the 
accused saying "saladarka aj sosana pathabo" which means 
"we will send the rascals to the crematory". PW-11 further stated 
that Nripen Debnath came down from the bullock cart, 
appellant-Dinesh caused injuries
with henso and Dilip attacked 
F 
him with a dau and when PW-11-Ranjit Debnath and PW-12-
Santosh Debnath tried to intervene, the accused (Arjun and 
Bipad) attacked them with a lathi. Evidence of PW-11 amply 
corroborates the evidence of PWs 3 and 10. 
13. Evidence of injured witnesses PWs 10 and 11 lends 
G credence to their testimony and their evidence is entitled to 
great weight. Very much convincing ground is essential to 
discard the evidence of the injured witnesses PWs 10 and 11. 
Despite searching cross-examination, nothing substantial was 
elicited from PWs 10 and 11 to discredit their evidence. 
H
DILIP KUMAR MONDAL & ANR. v. STATE OF WEST 915 
BENGAL [R. BANUMATHI, J.] 
14. PW-6 Anil Kumar Mondal who was doing agricultural A 
work in his field had also stated that he had heard one jhamela 
and when he went to the place of incident, a maramari took 
place. PW-6 had spoken about the overt act of each of the 
appellants and causing injuries to the deceased and others. 
PW-8 Mastoram Debnath labourer who was working in the field 
B 
of the deceased at that time had also deposed that an 
altercation crept up between the parties. 
15. As far as evidence of PW-2-Abul Kasim Sk is 
concerned, the courts below have rightly recorded him unworthy C 
of credit as he stated that Nripen Debnath was lying dead on 
a village road. As pointed out by the courts below, it appears 
that PW-2 has just deposed whatever he heard from others. 
PW-4 -lntajul Haque, an agricultural labourer had deposed the 
incident and the overt act of the appellants in causing hurt to 
Nripen and that while PW-10-Nikhil Debnath attempfed to save D 
his father, Dilip caused hurt to Nikhil with dau and that all the 
accused attacked sons of PW-3 Fatik Chandra Debnath with 
bamboo split. During investigation, statement of PW-4 was not 
recorded by the investigating officer under Section 161 Cr.P.C. 
and the High Court rightly declined to take notice of the evidence 
E 
of PW-4. Likewise, High Court has also rightly rejected the 
testimony of PW-5 Karuna Krishna Sarkar who had stated that 
he saw the accused
running through his house and that he 
witnessed the incident from his garden. 
F 
16. The contradiction pointed out in the evidence of the 
witnesses and the discrepancies in the prosecution case were 
duly considered by the courts below. The contradictions so 
pointed out by the appellants do not create infirmity in the 
prosecution case. The core of the prosecution story remains G 
the same that Nripen Debnath and his son PW-10 Nikhil 
Debnath along with two sons (Ranjit Debnath and Santosh 
Debnath) of PW-3 Fatik Chandra Debnath were assaulted by 
the accused on their landed property. The defence plea that the 
false case has been foisted on the accused due to political 
H
916 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A 
rivalry is not substantiated by the appellants. 
17. On the evidence of PW-3-Fatik Chandra Debnath, 
injured witnesses PWs-10 to 12 - Nikhil Debnath, Ranjit 
Debnath and Santosh Debnath and other witnesses PWs 6 
8 
and 8, the courts below have recorded concurrent findings of 
fact that the appellants have inflicted fatal injuries on the 
deceased Nripen Debnath and the concurrent findings so 
recorded are unassailable. 
18. Having agreed with the findings of the courts below that 
C 
the appellants inflicted fatal injuries on the body of the 
deceased, it i~ to be ascertained whether or not it was a result 
of pre-meditation and whether the conviction of the appellants 
under Section 302 IPC is sustainable. So far as this question 
is concerned, facts and circumstances of the case and the 
D 
statement of the witnesses are to be examined. As pointed out 
earlier, the accused persons were objecting to the entry of the 
bullock cart in their field and before the attack, there was a 
wordy altercation. PW-6 Anil Kumar Mondal had also deposed 
that he heard jhamela and when he rushed to the place of 
E 
offence, he noticed a maramari took place and the appellants 
inflicted injuries on Nripen and PW-10 Nikhil Debnath. PW-10 
son of deceased himself deposed that accused persons were 
guarding their landed property so that no one enters their land 
and as he along with his father Nripen entered their land in their 
F 
bullock cart,
the accused persons restrained them saying "sala 
toder gari jete debo na". PW-11-Ranjit Debnath, another 
injured witness had also spoken that there was fight between 
the parties. 
19. The High Court had referred to the evidence and the 
G defence put forth by the appellants that the incident was a 
sudden fight between the parties. The High Court declined to 
invoke Exception 4 to Section 300 on the grounds that:- (i) the 
defence plea of sudden fight was not clearly put forth by the 
accused during their questioning under Section 313 Cr.P.C.; 
H
DILIP KUMAR MONDAL & ANR. v. STATE OF WEST 917 
BENGAL [R. BANUMATHI, J.] 
(ii) even assuming that there was a sudden fight, and that four 
A 
accused persons were injured, there is nothing to suggest that 
the complainant party were the aggressors, the injuries must 
have been inflicted on the accused only to prevent the 
complainant party from entering the field of the complainant 
party and in self defence. 
B 
20. Learned counsel for the appellants contended that the 
defence emerging from the evidence is that the appellants 
have been objecting to the user of any part of their field for the 
purpose of ingress and egress of the bullock cart and inspite 
C 
thereof the complainant party armed with deadly weapons tried 
to pass their bullock cart through their field as a result whereof, 
a free fight ensued in which the appellants and two other 
accused persons sustained injuries and while so the High Court 
failed to appreciate that there was no premeditation and the 
entire incident was due to a sudden fight and the High Court 
D 
ought to have invoked Exception 4 to Section 300 IPC. 
21. Exception 4 to Section 300 IPC 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." 
In order to invoke the applicability of Exception 4 to Section 
300 IPC, the following
conditions are to be satisfied namely: 
(i) 
that the incident happened without premeditation; 
(ii) 
in a sudden fight; 
(iii) 
in the heat of passion; 
(iv) 
upon a sudden quarrel and 
E 
F 
G 
(v) 
without the offender having taken undue advantage 
H
A 
B 
c 
D 
E 
F 
G 
H 
918 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
or acted in a cruel or unusual manner." 
22. This Court in Sridhar Bhuyan vs. State of Orissa 
(2004) 11 sec 395, reaffirmed the same and held as under:-
"For bringing in operation of Exception 4 to Section 300 
IPC, it has to be established that the act was committed 
without premeditation, in a sudden fight in the heat of 
passion upon a sudden quarrel without the offender having 
taken undue advantage and not having acted in a cruel or 
unusual manner. 
The fourth exception of Section 300 IPC covers acts done 
in a sudden fight. The said exception deals with a case of 
prosecution 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 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 in such. 
cases could 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
DILIP KUMAR MONDAL & ANR. v. STATE OF WEST 919 
BENGAL [R. BANUMATHI, J.] 
aggravated it by his own conduct it would not have taken A 
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 B 
offender's 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 c 
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 have 
worked themselves into a fury on account of the verbal 
altercation in the beginning. A fight is a combat between 0 
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 
E 
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". 
F 
23. Considering the totality of the facts and circumstances 
of the case, we are unable to agree with the view taken by the 
courts below that the incident was a premeditated one. As 
discussed earlier, the accused had been objecting to the G 
ingress and egress of the bullock cart in their field and no 
sooner did the deceased try to enter their field, than a free fight 
ensued between the parties. Insofar as the contention of the 
prosecution, that the accused were already armed with deadly 
weapons to pounce upon the deceased-complainant party, it H
920 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A 
appears to be not acceptable as the accused party were 
proceeding to their fields for carrying out their agricultural work 
and, therefore, it is quite normal for them to possess such 
agricultural instruments which are used as weapons in this 
case. Upon consideration of the entire evidence and the facts 
s 
and circumstances of the case, in our view, there was no 
premeditation on the part of the appellants and the incident was 
a sudden fight. 
24. In order to invoke Exception 4 to Section 300 IPC, it 
must be further shown that the offender has not taken undue 
C 
advantage or acted in a cruel or unusual manner. The appellants 
are said to have inflicted injuries with henso and dau. By a 
perusal of Ext. P6 post-mortem certificate, it is seen that the 
deceased sustained one incised injury on the back which has 
caused injury to scapula and spinal cord and another incised 
D wound over the back just below the right scapula causing injury 
to the right lung and pleura. Insofar as the injuries caused to 
Ranjit Debnath and Santosh Debnath, there is no sufficient 
evidence as to the alleged injuries caused to them. As far as 
PW-10-Nikhil Debnath is concerned, he was discharged from 
E 
the hospital after giving first aid treatment indicating thereby that 
the injury was not grievous. Considering the injuries, in our view, 
it 'cannot be said that the accused have taken undue advantage 
of the situation. The incident was not
premeditated and the 
scuffle between the parties led to the causing of injuries to the 
F 
deceased Nripen Debnath and considering the circumstances 
of the case, in our view, the offence would fall under Section 
300 IPC Exception 4 and the conviction of the appellants is to 
be modified and altered under Section 304 Part I IPC. 
25. In the result, the conviction of the appellants under 
G Section 302/34 IPC is altered to one under Section 304 Part I 
IPC and the appellants are sentenced to undergo imprisonment 
for a period of ten years. The appeal stands allowed to the 
above extent. 
H 
Devika Gujral 
Appeal disposed of.