A.P. Sen and; v. Balakrishnan Eradi, JJ.
1. The only question involved in this appeal by special leave is whether the appellant was guilty of culpable homicide amounting to murder punishable under Section 302 of the Indian Penal Code, 1860 or of culpable homicide not amounting to murder punishable under Section 304 Part I.
2. This was a rather unfortunate incident resulting in the loss of a precious human life. A batch of students of Motilal Nehru Regional Engineering College, Allahabad after they obtained degree in Engineering had been sent to BHEL, Hardwar for training. On the fateful day, the appellant Arvind Kumar and the deceased Om Prakash Gupta came late and were not allowed to join their classes. They took the key from PW 4 Ajit Singh and went to his room in the hostel. When PW 4 came to his room at about 12.30 p.m. he found the appellant and the deceased playing a game of cards. There was a sudden quarrel leading to an altercation and the appellant whipped out a knife and struck two blows on the deceased resulting in his instantaneous death. The first of these blows fell on his right forearm and the second on his chest. We find that the High Court on a consideration of the evidence rightly relied upon the testimony of the two eyewitnesses PW 3 S.C. Agarwal and PW 4 Ajit Singh and reversed the order of acquittal recorded by the Sessions Judge, Saharanpur. Both the two eyewitnesses were natural and disinterested witnesses and there was no reason whatever for the learned Sessions Judge not to have acted upon their testimony. The High Court on consideration of their evidence held that the act of the appellant fell within clause Thirdly to Section 300 and accordingly convicted the appellant of having committed an offence punishable under Section 302 of the Indian Penal Code.
3. After hearing learned counsel for the parties and examining the evidence in detail, we are inclined to the view that the case should fall within Exception 4 to Section 300. From the testimony of the two eyewitnesses PW 3 and PW 4, it is clear that the act was committed by the appellant without any premeditation. In the course of the game of cards there was a sudden quarrel and in the heat of passion the appellant inflicted the stab injuries on the deceased. It cannot be said that the appellant had taken undue advantage or calculatedly acted in a cruel and unusual manner. In the premises, the appellant must be held guilty of only culpable homicide not amounting to murder punishable under Section 304 Part I of the Indian Penal Code.
4. Accordingly, the conviction of the appellant under Section 302 of the Indian Penal Code is converted into one under Section 304 Part I. The appellant is sentenced to undergo rigorous imprisonment for seven years and to a fine of Rs 25,000. The amount of fine, if recovered, shall be paid to the legal heirs of the deceased Om Prakash Gupta by way of compensation. In default of payment of fine, the appellant shall undergo rigorous imprisonment for a further term of three years.
5. Subject to this modification, the appeal fails and is dismissed.