- 1 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF SEPTEMBER, 2025 PRESENT THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND THE HON'BLE MR. JUSTICE M.G.S. KAMAL CRIMINAL APPEAL NO. 1821 OF 2018 (C) BETWEEN: NARASIMHAIAH S/O KADARANARASIMHAIAH, AGED ABOUT 60 YEARS, R/AT MARIHEGGAIAHNAPALYA DODDABELAVANGALA HOBLI, DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT - 561 204. …APPELLANT (BY SRI. P D SUBRAHMANYA.,ADVOCATE) AND: THE STATE OF KARNATAKA BY DODDABELAVANGALA POLICE STATION, DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT - 561 203 NOW REPRESENTED BY STATE P.P., HIGH COURT OF KARNATAKA BUILDING, BENGALURU-560 001. …RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE SPP II.,) THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 29.06.2018 AND SENTENCE DATED 10.07.2018 PASSED BY THE IV ADDITIONAL DISTRICT AND Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 SESSIONS JUDGE, DODDABALLAPURA IN S.C.NO.10024/2017 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC.THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO LIFE IMPRISONMENT WITH FINE AMOUNT RS.10,000/- AND IN DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT FOR A PERIOD OF 1 YEAR FOR THE OFFENCE P/U/S 302 OF IPC AND ETC. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE M.G.S. KAMAL) This appeal is by the appellant/accused being aggrieved by the judgment and order dated 29.06.2018, passed in Session Case No.10024/2017 on the file of IV Additional District and Sessions Judge, Doddaballapura, (hereinafter referred to as the 'trial court' for short), by which, the trial Court has convicted the appellant/accused for the offence punishable under Section 302 of IPC and has sentenced him to undergo life imprisonment with fine amount of ₹ 10,000/- and in default to pay the fine amount to further undergo simple imprisonment for a period of one year. - 3 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 2. Case of the prosecution in brief is that; (a) Accused/appellant- Narasimhaiah is the father of victim-Manjunath and both were addicted to alcohol. Manjunath was pestering the appellant for money for purpose of meeting his alcoholic addiction which was the reason for frequent quarrels between them. At times victim-Manjunath had even assaulted his father, the accused in this regard. That on 12.05.2017 there was a programme of Nallathangi kathe in the house of one Rajanna s/o Chikkaerappa. Appellant/accused and his son victim-Manjunath and other neighbours had attended the said programme. Appellant /accused and the victim-Manjunath had quarrelled even in the said programme. Accordingly, neighbours had brought appellant/accused and victim -Manjunath to their house early in the morning. (b) That the complainant one of the neighbours of the appellant/accused and victim-Manjunath who had also attended the said programme, had returned to his home at about 03.00 a.m. That on 13.05.2017 at about 05.30 a.m. when the complainant came out of his house, found gathering of villagers in front of house of appellant/accused and victim-Manjunath. - 4 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 When he went to the spot, he saw the dead body of victim- Manjunath lying on the cot with bleeding head injuries. That when he asked appellant/accused, he had admitted to his guilt of committing the murder of his own son for not being able to tolerate his behaviour. Accordingly, the complaint was filed before the police. (c) Thereupon, a case was registered in Crime No. 95/2017 against the appellant/accused for the offence punishable under Section 302 of IPC. After the investigation, police filed the charge sheet against the appellant/ accused. Since the appellant/accused pleaded not guilty, the prosecution led its evidence examining 17 witnesses as PW1 to PW17. It marked 24 documents as Ex.P1 to P24 and 6 material objects as MO1 to MO6. Statement of the appellant/accused was recorded under Section 313 of Cr.PC. The appellant/ accused denied all the incriminating evidence against him and has not led any evidence. The trial Court on appreciating the material evidence produced by the prosecution convicted and sentenced the appellant/accused as noted above. Being aggrieved by the same, the appellant/accused is before this court. - 5 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 3. Heard both side. 4. Sri. P.D.Subrahmanya, learned counsel appearing for the appellant/ accused submitted that; (a) The prosecution has not established the ingredients of the alleged offence punishable under Section 302 of IPC beyond reasonable doubt. That there are no eyewitnesses to the incident and the entire case is based on circumstantial evidence. (b) That admittedly appellant/accused is the father of victim- Manjunath and there was no motive of any nature whatsoever for him to commit the offence. (c) That though the prosecution has cited PW2 and PW3 to be the eyewitnesses they cannot be considered to be so as they have not witnessed appellant/accused assaulting or causing injuries resulting in death of the victim- Manjunath. (d) Alternatively he submits even assuming appellant/ accused had indeed caused injuries to victim-Manjunath, - 6 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 the same would fall within the Exceptions provided under Section 300 of IPC. Consequently, appellant/accused is entitled for the benefit under second part of Section 304 of Indian Penal Code. (e) That the trial court has failed to take the overall circumstances of the matter into consideration and has erred in convicting and sentencing appellant/accused for life imprisonment. Hence, seeks for allowing of the appeal. 5. Sri Vijaykumar Majage, learned State Public Prosecutor-II, justifying the judgment and order passed by the trial court, submitted that; (a) there is no dispute with regard to the relationship between appellant/accused and victim-Manjunath and place of death. (b) Motive for commission of offence is to get rid of victim -Manjunath who was troubling appellant/accused for demanding money for consuming alcohol. - 7 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 (c) The nature of injuries that are sustained would indicate that appellant/accused was having knowledge and intention to cause death of his son Manjunath. (d) that facts and circumstance would not permit the case to be considered under any of the Exceptions provided under Section 300 and to grant any benefit under Section 304 of IPC. (e) that prosecution has proved the case beyond reasonable doubt and all the witnesses have supported the case of the prosecution. Hence, seeks for dismissal of the appeal. 6. On consideration of submissions of both side and on perusal of the records the point that arises for consideration is; "Whether on the facts and the circumstances of the case, the trial Court was justified in sentencing the appellant/accused for the offence punishable under Section 302 of Indian Penal Code?" - 8 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 Analysis 7. Admitted facts of the matter are that appellant/accused is the father of victim-Manjunath. That death of victim -Manjunath has occurred in the house of appellant/accused. 8. PW13- Dr. Raju, who conducted the post mortem of victim-Manjunath as per Ex.P10 has spoken about the injuries found on the dead body of the victim which are as under; "The body of the victim Mr. Manjunatha is moderately built and nourished HL of 5" the scalp hair bleach in CR the rigor mortis is present both in GL and LL (GL is greater than LL) The eyes are closed. Deep cut wound over centre of lower hip 3X2X1/2 deep transverse cut wound on occipital area 9X3X3cm. Occipital bone (cut piece) is found lying outside the body. One more deep gutter wound just above the wound mentioned earlier measuring 8X3X3 ring transversely." 9. PW.13 in his evidence has stated that cause of the death is the injuries sustained by victim on his head. He has also identified the iron pipe marked as MO.3 having been examined by him. He has opined that injuries found on dead body of victim-Manjunath could be caused by use of MO.3. Thus, the evidence of PW.13 read in the light of the contents of - 9 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 Ex.P10-postmortem report would indicate that death of victim- Manjunath is homicidal. The question therefore is whether the appellant/ accused has caused the injuries on the head of victim-Manjunath resulting in his death. 10. PW1.-Sulaiah, who is an acquaintance and the villager, in his deposition has stated that appellant/ accused and his son Manjunath were residing in their house and victim- Manjunath was addicted to alcohol and were frequently quarrelling on account of victim-Manjunath demanding money from the appellant/ accused. That he was frequently advising both appellant/accused and victim-Manjunath, but did not yield any result. The said witness has also spoken about Nallathangi event which was organised in the house of one Rajanna in the village. He has spoken about he waking up to the commotion between 04.00 a.m. and 04.30 a.m. and he finding villagers gathering in front of house of appellant/accused and he seeing dead body of victim-Manjunath inside the house. That he was informed that appellant/accused had assaulted and killed him. That when he enquired with appellant/accused, who was outside the house, did not respond. Accordingly, he went to - 10 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 Doddabellavangala Police Station and filed a complaint, which is marked as Ex.P1. The said witness has further spoken about he being witness to spot mahazar at Ex.P2. He has also spoken about the police collecting the blood which has spilled in the house. The said witness has also identified scraped cement mixed mud sample and blood recovered from the cement floor which are marked as MO.1 and MO.2. In the cross-examination the said witness has pleaded his ignorance about the persons who had gathered in front of the house of appellant/accused. He has stated that since he heard people talking about appellant/accused having caused injuries and death of victim-Manjunath, he had gone and lodged the complaint. He has pleaded ignorance as to the persons who prepared the said complaint. That since the police had asked him, he had affixed his signature to the said complaint and he is not aware as to the contents of the said complaint and nobody had even read over the said complaint to him. 11. PW2.- Gangaraju is the neighbour of appellant/accused and victim-Manjunath. The said witness in his chief-examination has stated that appellant/ accused and - 11 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 victim-Manjunath were quarrelling frequently in inebriated condition. That he had advised both of them on many occasions. He has also spoken about the Nallathangi program, organized in the village in which appellant/accused and victim- Manjunath had also participated. The said witness also spoken about Manjunath demanding appellant/accused for money, being the reason for quarrel even in the said event. The said witness has further spoken about he along with one Murthy and others pacifying victim-Manjunath and appellant/accused and sending them home. He has also spoken about he personally escorting them to their house. He has stated that even when they left the house of appellant/accused and victim, they were continuing to quarrel. He has stated that even after reaching home victim-Manjunath was insisting appellant/accused to pay the money immediately to which the appellant/accused was scolding him refusing to pay the money. He has also spoken about victim-Manjunath, throwing the photos of deities hung on the wall and was even attempting to assault the appellant/accused. The said witness has further stated that appellant/accused had assaulted on the head of the victim with a iron pipe and victim-Manjunath fallen on the cot. That when - 12 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 he enquired with appellant/accused, he had replied that there was no point in having such children. That PW.2 had informed the villagers and had requested them to take them to the hospital. Accordingly, when he went inside, he found victim- Manjunath was dead and his blood was spilled all over. The said witness has further spoken about police conducting the mahazar and seizing of the iron pipe kept inside the house as per Ex.P3. The said iron pipe has been marked as MO.3. In the cross-examination, the said witness has stated during the quarrel at their home, victim-Manjunath and the appellant/accused were fully drunk. Victim-Manjunath had assaulted appellant/accused first and appellant/accused had assaulted victim-Manjunath thereafter. He has however denied the suggestion that victim-Manjunath fell on the cot as the appellant/accused had pushed him in inebriated condition. He also denied the suggestion that appellant/accused had not assaulted in any manner to victim-Manjunath. He has also spoken about appellant/accused assaulting victim- Manjunath 4 to 5 times on his head by iron pipe. The said witness has further stated that when appellant and victim-Manjunath were - 13 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 quarrelling he had pacified them and had left the home and when he went again for the second time, he found both of them still continuing to fight. Victim- Manjunath had already fallen on the cot with injuries on his head. 12. PW.3-Murthy, who is also an acquaintance at the same village, has spoken about his house being situated about 100 feet away from the house of appellant/accused and victim - Manjunath and both of them being addicted to alcohol and frequently quarrelling. He has also spoken about the event organized in the house of Rajanna s/o Chikkaerappa and appellant/accused and victim quarrelling in the said house on account of victim demanding money from appellant/accused. The said witness has also spoken about he accompanying others in leaving appellant/accused and victim-Manjunath in their house. He has further stated that he is not aware as to what transpired thereafter. That when he went at 06.00 a m in the morning, he found victim on the cot with injuries on his head. In the cross examination by the Public Prosecutor, the said witnesses has admitted that even after they leaving - 14 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 appellant/accused and victim-Manjunath inside their house, victim was insisting appellant/accused to pay the money and since he refused, victim-Manjunath was throwing the photos of the deities hung on the wall onto the ground. That enraged by this, appellant/accused had assaulted the victim 4 to 5 times on his head by using iron pipe. Due to which the blood had spilled all over and victim-Manjunath had fallen on to the cot. He has further stated that appellant/accused had stated that it did not matter if such children were dead or alive. In the cross examination by the learned counsel for accused, the said witness has admitted that he did not go to the event. He slept at his home. He only went to the spot in the morning and learnt about the incident from the people gathered and he did not have any personal information about it. The said witness has further stated that he has affixed his signature as the police had asked him, without knowing the contents of the same. That he had not given any statement to the police and no mahazar was drawn in his presence. 13. PW4- Sidlaih is the villager, who has also spoken about appellant/accused and victim quarrelling on the day - 15 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 when the event was organised in the house of Rajanna s/o Chikkaerappa. That his house is situated about a furlong away from the house of appellant/accused. That at 5.00 a.m. people had gathered in front of the house of appellant/accused. That both appellant/accused and victim were addicted to alcohol. The said witness had turned hostile and has not supported the case of the prosecution. 14. PW5-Poojahanumanthaiah, PW6-Hanumanthaiah who was a witness to Ex.P4- inquest mahazar, PW 11-Bhaskar, who was a witness to Mahazar Ex.P2 have turned hostile and have not supported the case of the prosecution. 15. PW9-Poojaramaiah has spoken about he being witness to mahazar at Ex.P3, which is prepared while recovering the iron pipe produced by appellant/ accused as per MO.3. 16. PW.10-Dr. Vinod Janardhan Lakkappan has spoken about he receiving 4 material objects namely preservative, sample blood, Liver, kidney and other intestines subjected to forensic science investigation. - 16 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 17. PW12-Srinivas, a Police Constable has spoken about arresting appellant/accused at 4.00 p.m. on 13.05.2017 from Hulikunte bus stop and producing him before the Investigating Officer at 5.00 p.m. 18. PW 14-Raghavendra has spoken about he receiving the complaint at Ex.P1 and registering the FIR in Crime No. 95/2017 and sending the same to the Court. 19. PW.15-Shivakumar S is the Investigating Officer who has spoken about he taking over the investigation from PW14 and he conducting the spot mahazar; recovering the items; taking the photographs and sending them for forensic verification; drawing up of inquest mahazar; obtaining the report from the FSL. He has also spoken about recovery of the weapon from the spot as per Ex.P3. The said witness was subjected to cross-examination. 20. PW16- Siddaraju G, CPI, who has spoken about he receiving the report from FSL as per Ex.P9 and the post mortem report from CW22. - 17 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 21. PW17- Dr. Chandrasekhar has spoken about he receiving 6 objects for forensic examination, namely blood, mixed cement, sample mud, a shirt, an underwear, a pant and a iron pipe. He has spoken about Item Nos. 1, 3 and 6 being stained with human blood of 'A' group and he has given the opinion regarding the same as per Ex.P23. 22. On scrutiny of aforesaid evidence it is seen that PW1, PW2, PW3, PW4 have consistently spoken about appellant/accused and victim-Manjunath being addicted to alcohol and quarrelling frequently. They have also spoken about victim-Manjunath pestering appellant/accused for money to meet his alcoholic addiction. The said witnesses have also spoken about appellant/accused and victim-Manjunath attending Nallathangi Katha organized in the house of one Rajanna s/o Chikkaerappa in the village and both of them quarrelling even in the said incident. 23. PW2 and PW3 have further spoken about they along with others accompanying appellant/accused and victim- Manjunath to their house, pacifying them, after the quarrel. Thus, PW.2 and PW.3 have seen appellant/accused last - 18 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 together in inebriated condition quarrelling with each other. All these witnesses have further spoken about they seeing victim- Manjunath lying on the cot with head injury during early hours of the morning i.e., at 5.00 a.m. 24. Though, PW2 has spoken about he witnessing appellant/accused assaulting victim-Manjunath with a iron pipe while victim-Manjunath quarreling and throwing photos of deities hung on the wall onto the ground and breaking them, in the cross examination the said witness has stated that when he went inside for the second time victim-Manjunath had already fallen on the cot with the injuries on his head. Be that as it is, the consistent evidence of these witnesses would indicate that appellant/accused and victim-Manjunath were last seen together by all these witnesses and they also saw victim- Manjunath with head injuries fallen on cot early hours of the morning. 25. The theory of last seen has been well established by the prosecution. Relevant at this juncture to refer to the judgment of the Apex Court in the case of STATE OF U.P. VS - 19 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 SATHISH reported in (2005) SCC 114 wherein at paragraph 22 has stated as under: "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the victim were seen last alive and when the victim is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the victim was last seen with the accused when there is a long gap and possibility of other persons coming in between exists." 26. Thus, proximity of time between aforesaid witnesses seeing appellant/accused and victim-Manjunath alive and they seeing the dead body of victim-Manjunath on the cot is so proximate that there cannot be any other doubt with regard to any other person having caused such injuries onto the head of the victim-Manjunath. 27. As regards the motive for appellant/accused to commit such an offence, though the prosecution has not provided any motive, from the evidence on record it appears that both appellant/accused and victim/Manjunath, father and son were addicted to alcohol and victim/Manjunath was pestering appellant/accused for money to meet his alcoholic addiction. - 20 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 28. Learned counsel for the appellant/accused vehemently contended that even if it is proved that appellant/accused had committed the offence, same not being premeditated and without there being any ill-will or ill-motive, the said Act would fall within Exception 1 and Exception 4 of Section 300 of IPC. Therefore, he submits that case would fall within second part of Section 304 of Indian Penal Code. 29. Necessary at this juncture to refer to Section 300 of IPC with Exception provided thereunder, which reads as under: "300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death, or Secondly-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.'' Exception 1.— When culpable homicide is not murder.— Culpable homicide is not murder if the - 21 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:— First— That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly— That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.— Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. 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. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault." 30. Section 304 of IPC reads as under: ''304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to - 22 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.'' 31. It is emanating from the records that appellant/accused being the father of victim/Manjunath, both of them were working as masons and were frequently quarrelling on the issue of victim/Manjunath demanding money for his alcoholic addiction. Even on the fateful day when both of them had attended the event of Nallathangi katha at Rajanna's house, they had quarreled for the very same issue. The witnesses had accompanied them to their house, pacified them. Even after they leaving them in their house, victim/Manjunath had insisted and demanded money and had even attempted to assault appellant/accused. He had further thrown the photos of deities hung on the wall and broke them. These circumstances would indicate that appellant/accused who was already inebriated had lost his self control and was given a sudden - 23 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 provocation which has resulted in him assaulting victim/Manjunath. 32. On reading of the evidence and provisions of law indicated hereinabove, this Court is of the considered view that appellant/accused though had caused the injuries onto the head of victim/Manjunath, he had no intention of causing death, the same would therefore as rightly insisted by the learned counsel for appellant/accused would fall within the Exception 1 of Section 300 of IPC. 33. Apex Court in the case of MARIAPPAN VS. STATE represented by Inspector of Police reported in (2024) 2 SCC 598 at paragraphs 15, 16 and 17 has held as under: "15. Hence the only question that remains for consideration before us is whether the act of the accused is culpable homicide amounting to murder or not. In other words, the question is whether the acts of the accused would come under Exception 4 to Section 300 IPC or would be an act of culpable homicide amounting to murder punishable under Section 302. 16. This Court in Rampal Singh v. State of U.P.2, while altering the offence under Section - 24 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 302 to Section 304 Part 1 of IPC, has elaborately discussed the distinction between (2012) 8 SCC 289 culpable homicide amounting to murder and culpable homicide not amounting to murder. What is held is that classification would be a matter of fact depending upon the evidence led in the trial. Broadly speaking, the factors to be considered are enumerated in paragraph 25 thereof. The same is been reproduced below: “25. As we have already discussed, classification of an offence into either part of Section 304 is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of premeditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view i.e. by applying the “principle of exclusion”. This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of - 25 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 the Code, that is, “culpable homicide amounting to murder”. Then secondly, it may proceed to examine if the case fell in any of the Exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused.” 17. It would also be apt here to refer to the judgement of Surinder Kumar Vs. Union Territory, Chandigarh3, wherein this Court had laid down the grounds to invoke Exception 4 to Section 300 IPC: “7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant no is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not - 26 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which (1989) 2 SCC 217 proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 34. In the light of aforesaid factual aspect of the matter and evidence made available by the prosecution, considering the relationship between the parties and age of appellant/accused was 60 years at the time of incident, this Court is of the considered view that the case of appellant/accused would fall within the Exception requiring consideration under second part of Section 304 of Indian Penal Code. 35. Accordingly, the following; Order (1) The appeal is partly allowed. (2) The impugned judgment and order of conviction and sentence dated 29.06.2018/10.07.2018 in S.C.No.10024/2017 passed by the IV Additional District and Sessions Judge, Doddaballapura, is modified as follows: - 27 - HC-KAR NC: 2025:KHC:37509-DB CRL.A No. 1821 of 2018 (a) Appellant/accused is convicted for the offence punishable under second part of Section 304 IPC. For the said offence he is sentenced to period of detention already undergone by him. (b) Appellant/accused shall be set at liberty forthwith if his detention is not required in other case. The order of the trial Court with regard to disposal of the properties and regarding compensation under Section 357A of Cr.P.C is maintained. Communicate copy of this order to the trial Court and concerned prison forthwith. Appreciation for the able assistance rendered by Sri.P.D.Subramanya, learned Advocate of HCLSC who represents the appellant is placed on record. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (M.G.S. KAMAL) JUDGE RU/RL, List No.: 1 Sl No.: 13