P.W.3, who had no clear eyesight and was also hard of hearing reveals that when deceased in course of quarrelling inside the house came out from the house of accused, he was chased by accused and spade blows were given and the blunt side of the spade was used. It is also revealed from the evidence of P.w.3 that even after falling down on the ground facing down ward, the accused has not used the sharp side of the spade. Further, according to P.W.3 five blows were given but the doctor found only three injuries as one lacerated injury was on the right knee. Accepting the evidence of P.W.3 to the extent, that accused dealt blows by blunt side of the spade to cause injuries on the deceased, it is also proved that accused had no pre-meditation. It was a sudden fight in the heat of passion upon a sudden quarrel. Had it not been so, the accused could have used the sharp side of the spade inside his house. The accused was not expecting deceased to come his house, so there is no pre-meditation on his part to commit the above offence to actualize the assault. There is no evidence that accused has taken an undue advantage or acted in a cruel manner. Learned lower court has miss-appreciated the evidence to infer the intention and entered into some conjectures to find the ingredients of murder. By taking all the above evidence into consideration, we are of the considered opinion that the offence of murder as defined under Section 300 I.P.C. is not made out, instead the offence of culpable homicide not amounting to murder as defined under section 300 Exception-4 is proved beyond
