Sabu Varghese Kannikulathil Veedu v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE P.BHAVADASAN FRIDAY, THE 10TH DAY OF AUGUST 2012/19TH SRAVANA 1934 CRL.A.No. 540 of 2009 ( ) ------------------------(SC.102/2008 of SESSIONS COURT,KOTTAYAM) APPELLANT/ACCUSED IN SC.NO.102/2008;: ------------------------------------------------------------ SABU VARGHESE KANNIKULATHIL VEEDU, KURISUPALLY BHAGAM KANAKKARY VILLAGE, NOW RESIDING AT THE RENTED HOUSE BY NAME CHERUVIL, PATTITHANAM. BY ADVS.SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.N.K.SUBRAMANIAN RESPONDENT/COMPLAINANT IN SC.NO.102/2008:: ------------------------------------------------------------------------ STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.ROY THOMAS MUVATTUPUZHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR & P.BHAVADASAN, JJ.** ------------------------------------------------------------------Criminal Appeal No.540 of 2009-B ------------------------------------------------------------------Dated this the 10[th] day of August 2012 ## Judgment ## **Bhavadasan, J.** The accused was prosecuted for the offence punishable under Section 302 of IPC. He was found guilty. He was accordingly convicted and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.1 lakh in default of which he had to suffer simple imprisonment for a further period of six months. It was also directed that if the fine amount was realised, it has to be given as compensation to the legal representatives of the deceased. Set off as per law was also allowed. 2. The incident in this case occurred on 7.6.2007 at about 3 pm., inside a toddy shop. In the morning at about 9 am, the accused came to the toddy shop and had toddy. The prosecution case is that the 2 accused showered abuses in the shop and unable to bear it, the deceased asked him to stop showering abuses, but the accused did not heed to this and he continued his pranks. Then the deceased caught hold of his collar and took him outside. Infuriated, the accused uttered that he will see to it later. The prosecution case is that at about 3 pm in the afternoon, the accused came with MO1 knife to the toddy shop and attacked Asokan, the deceased, inflicting injuries on him. Even though PWs 1 and 14 tried to intervene, they could not rescue Asokan. Injured Asokan was first taken to Matha Hospital. He was then referred to the Medical College Hospital. Asokan breathed his last on the way to the Medical College Hospital. In the meanwhile, CW1 laid Ext.P8 first information statement before the Kuravilangad Police Station, which was recorded by PW13 and crime was registered as per Ext.P8(a) F.I.R. 3 Coming to know about the presence of the accused near the place of incident, PW13 directed PW12 and two constables to restrain the accused at the place. After registering the crime, the S.I. of Police proceeded to the place of occurrence and had MO1 knife seized as per Ext.P5 mahazar. In the meanwhile, Ext.P2 intimation was issued by PW3 doctor, who intimated the police that Asokan was brought dead to the hospital and therefore, Section 302 of IPC was incorporated in the charge sheet. Investigation was taken over by PW15, who, on the next day went to the Medical College Hospital and conducted inquest over the body of the deceased and prepared Ext.P5 inquest report. He seized Mos 2, 3, 4 and 5 found on the body of the deceased. Thereafter, the body was sent for autopsy. PW2 Police Surgeon attached to the Medical College Hospital conducted autopsy and prepared Ext.P1 post- 4 mortem certificate. PW15 Investigating Officer prepared the scene mahazar and collected Mos8 and 9 from the site. He had the articles sent for chemical examination and Ext.P10 FSL report was obtained. He recorded the statement of witnesses, completed the investigation and laid charge before court. 3. The Judicial First Class Magistrate, Pala before whom the charge was laid, took cognizance of the offence. On finding that the offence is exclusively triable by a court of sessions, the learned Magistrate committed the case to the Sessions Court, Kottayam under Section 209 of Cr.P.C. The said court made over the case to the Additional Sessions Court (Adhoc) Kottayam for trial and disposal. The latter court on receipt of records, framed charge against the accused. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, 5 examined PWs 1 to 15 and had Exts.P1 to P11 marked. Mos 1 to 9 were also identified and marked. 4. After close of the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. His version was that he had gone to the toddy shop at about 8 am in the morning on 7.6.2007 in search of one Varghese, who was engaged in the construction work of his house. He asked Asokan whether he had seen Varghese. Asokan replied that Varghese did not come there. The accused is said to have gone again to the toddy shop at 9 am and asked for Varghese. At that time, Asokan is said to have got agitated and abused him and cautioned him not to come to the toddy shop to enquire about Varghese and pushed him by catching on his neck. According to the 6 accused, he again went to the toddy shop at 1 pm in search of Varghese. He went inside the shop and searched for Varghese and when he did not find Varghese, he left the shop. He would say that again at 3 pm, he went to the toddy shop and asked Asokan whether Varghese had come there. Asokan is said to have replied that Varghese is not there and that he has been telling right from the morning that Varghese had not come there. According to the accused, Asokan is said to have beaten him on his face and pushed him. There was a scuffle between the two. According to the accused, at that time, Asokan hit him with a bottle on his head and he suffered a bleeding injury on his left ear. The accused would also say that he was kicked and stamped by Asokan and he pleaded to Asokan not to kill him. Asokan is said to have replied that he has killed two persons and nothing is going to happen if he 7 kills him also. Asokan is then said to have lifted him from the ground and made him stand near the wall and then hit him with the knee. When he bent down, he was hit on the back of his head. He would say that then he took a knife from the room in the shop where curry was kept and fearing that Asokan would again attack him, he wielded the knife. He says that he had done it in self defence and he went out of the shop with the knife. After some time, police came to the place where he was standing and asked him to hand over the knife. Thereafter, he was taken to the police station. He would say that in the night when he felt pain on his head and stomach, he informed the police and he was taken to the General Hospital, Pala, but he was kept outside and an injunction as given to him. He would say that finding that his ear was bleeding, the doctor asked him what had happened. He would say that he told the 8 doctor that he was beaten with a bottle. The doctor wanted to dress the wound but the police did not allow him to do so and he was taken to the Sub Judge, Pala. In the morning on 9.6.2007, he was taken to the Government Hospital, Pala from where he was taken to the District Hospital, Kottayam. In the said hospital, he was told that there is a fracture to his cartilage and he was given medicine. Finding that the accused could not be acquitted under Section 232 of Cr.PC., he was asked to enter on his defence. The accused examined Dws 1 to 3 and had Exts.D1 to D4 marked. Exts.X1 to X3 were also marked. 5. On a consideration of the materials before it, the court below came to the conclusion that the injury which caused the death of Asokan was inflicted by the accused. His plea of self defence was found to be untenable. It was also found that the case would not 9 fall under any of the Exceptions under Section 300 of IPC. The court below therefore found him guilty of Section 302 and convicted and sentenced him as already mentioned. 6. The learned counsel for the appellant pointed out that it is clear from a reading of the evidence that the incident had not occurred as alleged by the prosecution. Attention was drawn to the fact that the incident is admittedly said to have taken place at 3 pm. Going by the evidence, the police station is nearly 5 to 7 kms away from the place of occurrence. Ext.P8 FI statement is seen to have been lodged at about 3.15 pm which is virtually impossible as the distance between the police station and the place of occurrence of the incident is nearly 5 to 7 kms. It is also pointed out that initially, crime was registered for the offence under Section 307 and it was with a deliberate intention of 10 manipulating the case at a later stage. The learned counsel also drew attention of this court to the fact that by the time Asokan was taken to the hospital, he had breathed his last and PW13 must have been aware of the same since intimation was forwarded to him by PW2. The learned counsel went on to point out that the evidence of PW1 cannot be accepted in toto as he had concealed several facts. The evidence of PW6 was referred to and according to him, he knew Asokan for the last six years. PW1 on the other hand, stated that he had been working in the toddy shop for one year and if that be so, PW6 could not have seen Asokan in the toddy shop prior to that period. PW6 has been deliberately introduced by the prosecution to speak about the motive and he is a planted witness. Relying on the evidence of PW1, it was pointed out that PW1, in his cross examination has admitted that the accused, in 11 the morning showered abuses in the shop since his worker had not come to the place of work and that probablises the version given by the accused of the incident. It is also contended that PW1 could not have seen the origin of the incident because he was in another room which is separated by a wall from the room in which the incident took place. It is also pointed out that PW1 had deliberately feigned ignorance about the injury inflicted by the deceased on the accused with a deliberate intention to conceal the true incident. Relying on the evidence of DWs 1 to 3 and Exts.X1 to X3 and D4, it is contended that it is clear from the evidence adduced by the defence that the accused had suffered an injury on his ear and he was treated for the same. According to the learned counsel, it is therefore, clear that the accused had also suffered injuries in the incident and the prosecution had deliberately concealed 12 the said fact with oblique motive. In fact, PW15 ought to have enquired about the same and for reasons best known to him, he did not enquire as to how the injury was suffered by the accused and that was with the deliberate motive to give a distorted version of the incident. It is also pointed out that going by the prosecution case, injury was inflicted with MO1 knife which was recovered from the accused. Going by the nature of the injuries as could be seen from the postmortem certificate namely Ext.P1, the knife would have been drenched in blood on the infliction of the injuries. Drawing attention to the FSL report, it was pointed out that the FSL report shows that even though blood was detected on the knife, the origin of the blood could not be known due to insufficient quantity of blood. That would not have been the case, had MO1 been the weapon that was used by the accused. Finally, even 13 assuming the prosecution case is true, the offence under Section 302 cannot be attracted. The learned counsel pointed out that the injury suffered by the accused is an indication of the altercation and scuffle between the deceased and the accused and there is nothing to show that the act committed by the accused was a premeditated one. Even assuming all that the prosecution says is true, the act of the accused would not fall under any of the clauses under Section 300. The evidence is clear to the effect that the act, at worst, would be covered by Exception 4 to Section 300 and then the act would fall under Section 299 and would be punishable only under Part II of Section 304. Elaborating on the above aspect, it was contended that there is nothing to show any pre-meditation on the part of the accused to act as he did and the act was clearly a result of a sudden fight in the heat of passion upon a 14 sudden quarrel and he had not taken undue advantage or acted in a cruel or unusual manner. In support of the said contention, the learned counsel relied on the decision in **Ramachandran v. State of Kerala** (1999 (3) KLT 866), **Thankachan v. State of Kerala** (AIR 2008 SC 406), **Haridas v. State of Kerala** (2012(1) KLT 124) and **Gopalakrishnan v. State of Kerala** (2012(1) KLT SN 39). Referring to the judgment of the lower court, it was pointed out that even the lower court had noted that it is possible that the accused might have acted in self defence and if that be so, the accused should be deemed to have discharged his burden of proof and the benefit of doubt could have gone in his favour. According to the learned counsel, the conviction and sentence under Section 302 cannot be sustained in law. 15 7. The learned Public Prosecutor, on the other hand, pointed out that the court below has analysed the evidence and come to the conclusion that the defence version is highly improbable and unacceptable. According to the learned Public Prosecutor, there is no suggestion either to PW1 or to PW14 that Varghese used to come to the toddy shop. The learned Public Prosecutor pointed out that after the incident which occurred in the toddy shop in the morning and from where the accused was forcibly sent out of the shop, it is highly inconceivable that he would have gone into the toddy shop repeatedly for the same purpose. The learned Public Prosecutor went on to point out that there is no suggestion to PW1 and PW14 that the knife used by the accused was a knife which was available in the toddy shop. It is clear according to the learned Public Prosecutor that the accused had 16 come armed with the weapon and had inflicted injuries on the deceased Asokan. As regards the criticism levelled against the evidence of PW1, it was pointed out that the incident had occurred at 3 pm, when there was no one else in the toddy shop, the accused came into the shop asking for deceased and that would have obviously attracted the attention of PW1 and he would have come to the place of incident. There is nothing to doubt the version given by PW1. The presence of PW6 is spoken to both by PWs 1 and 14 also. The learned Public Prosecutor pointed out that even assuming for the sake of argument, the evidence of PW6 is not acceptable, there is convincing and cogent evidence of PWs 1 and 14 and there is no reason to doubt the version of the said witnesses. No oblique motive is proved against these witnesses to falsely implicate the accused. The evidence of PWs 7 and 12 show that the 17 accused was seen outside the toddy shop soon after the incident. The evidence of PW7 is to the effect that he was seen holding a knife. The evidence of PW12 would show that noticing the accused, they had restrained him and MO1 was forcibly taken from him. There can be no manner of doubt regarding the fact that it was the accused who had inflicted the injuries on the deceased which resulted in his death. As regards the exceptions pleaded by the appellant, the learned Public Prosecutor submitted that there is no basis for the appellant to claim the exception as the evidence show that the accused had come armed with a weapon and there is nothing to show that there was a scuffle or exchange of words or any manner of fight between the accused and the deceased and that the deceased had inflicted any sort of injury on the accused. There was nothing which could have provoked the accused to 18 inflict the injury, which resulted in the death of Asokan. Even assuming, according to the learned Public Prosecutor, that there was no intention to cause the inflicted are death of the deceased, the injuries sufficient in the ordinary course of nature to cause death and therefore, clause 3 of Section 300 of IPC would be attracted and the claim of the appellant that he is entitled to Exception 4 under Section 300 IPC stands unsubstantiated. Accordingly it is contended that there are no grounds to interfere with the conviction and sentence passed by the court below. 8. That Asokan died as a result of the injuries received by him at the hands of the accused, cannot be disputed. Ext.P1 is the post-mortem certificate and Ext.P5 is the inquest report. Ext.P5 inquest report prepared by PW15 shows the injuries found on the body of the deceased. Ext.P1 post-mortem report shows the 19 ## : following ante-mortem injuries - “1. Incised wound 4x1 cm.bone deep obliquely placed just above right eye brow the inner end being 2 cm.outer to midline. - 2.Incised wound 2x0.2x0.2 cm transversely placed over right upper eyelid 0.3 cm above the lid margin and 4 cm.outer to midline. Conjunctiva showed haemorrhage over an area 1x0.5 cm. - 3.Incised wound 2x0.5 cm muscle deep transversely placed over the left side of lower border of jaw, 5 cm outer to chin. - 4.Incised wound 1.5x0.2 muscle deep transversely placed on the front of neck 1 cm to left of midline and 6 cm below chin, - 5.Incised punctured wound 1.8x0.5x2.5 cm obliquely placed over the left side of front of chest its lower inner end being 1 cm to the left of midline and 3.5 cm below collar bone underneath the sternum at its junction with left 1[st] rib showed a cut the ternal portion of sternomasoid muscle showed a cut. - 6.Incised penetrating wound 2x0.7 cm transversely placed over the left side of front 20 of chest, inner blunt end was 6 cm. outer to midline and 15 cm below the collar bone, the other end was sharply cut. The wound entered the left chest cavity by cutting the IVth left intercostal space and upper border of Vth costa cartilage. The wound entered the chest cavity, cut the percardium and tranfixed the left ventricle. From there, the wound entered the abdominal cavity after cutting the pericardium and diaphragm and terminated in the left lobo of liver. The wound was directed backwards and downwards for a total minimum depth was 15 cm. The pericardial cavity contained 400 ml. blood mixed with clot. Abdominal cavity contained 1 litre fluid blood. - 7.Incised penetrating wound 2.5x1 cm obliquely placed on the left side of front abdomen. The upper inner blunt end was 15 cm left of midline and 5 cm below costal margin. The wound perforated small intestine 8 cm distal to stomach. The wound was directed backwards and to right for a toral minimum depth of 5 cm. - 8.Incised penetrating wound 2.5x1 cm obliquely placed on left side of front of abdomen. The upper inner blunt end was 9 cm to the left of 21 midline and 10 cm above pubic symphysis (hip bone) the wound perforated the samll intestine at two places. The wound was directed backwards and to the right for a total minimum dept of 5 cm. - 9.Incised wound 2.5x0.5 cm x muscle deep over outer aspect of left thigh 8 cm below top of hip bone. - 10.Contused abrasion 2.5x0.5 on back of right forearm 3 cm below elbow. 9. The evidence of PW2 shows that there were 10 ante-mortem injuries found on the body of the deceased. According to this witness, the injuries which caused the death of the deceased were injury Nos.6, 7 and 8. PW2 has categorically stated that the said injuries are sufficient in the ordinary course of nature to cause death. He has also deposed that the said injuries could be inflicted by a weapon like MO1. In fact, there is no dispute regarding the cause of death of Asokan at all. It is clear from the evidence that injuries 6, 7 and 8 22 are sufficient in the ordinary course of nature to cause death of the injured and the death of Asokan was homicide. 10. There is also not much dispute regarding the fact that the deceased had suffered injures at the hands of the accused. While the prosecution would say that the accused had barged into the toddy shop with MO1 knife at 3 pm and had attacked Asokan and caused fatal injuries to him, the accused would say that the deceased had come to him and picked up quarrel with him and there was a scuffle between the two. The further case of the accused is that in the scuffle, Asokan beat him and pushed him on the ground and then, hit him with a bottle. At that time, he got a knife and wielded the same. 11. The evidence regarding the incident is furnished by PWs 1 and 14. There are two parts to the 23 incident. The first part is in the morning at 9 am which is spoken to by PWs 1, 6 and 14. In fact, the accused, in his 313 statement also admits about the incident which took place in the morning. But, his case is that he had gone in search of his worker Varghese. PW1 would say that finding that the accused was showering abuses Asokan had asked him to stop doing the same which was not heeded to by the accused and thereafter, he was forcibly sent out by Asokan. This fact is spoken to by PWs 1, 6 and 14 also. 12. There is no suggestion either to PW1 or PW14 that thereafter, the accused had repeatedly come to the toddy shop in search of Varghese or any suggestion to PW1 and PW14 that Varghese the construction worker of the accused used to come to the toddy shop. There is also no suggestion to them that the accused had ever come there in search of 24 Varghese. It is true that PW1 does say that the accused had showered abuses because of the absence of his worker in the morning. It is here that the non-suggestion to PWs 1 and 14 as to whether Varghese used to come to the toddy shop, assumes importance. There is nothing to indicate that the construction worker Varghese used to visit the toddy shop and he could be found there by the accused, as claimed by him. 13. With regard to the incident which took place at 3 pm in the noon, the prosecution has relied on the evidence of PW1 and 14. PWs 1 and 14 say that the accused had come to the toddy shop and asked for Asokan. Both PW1 and 14 would say that at that time, Asokan, the deceased was arranging the bottles of toddy. PW1 would say that the accused then suddenly attacked Asokan and caused injuries to him. His evidence is to the effect that even though he and PW14 25 tried to rescue Asokan, they could not do so, because the accused was wielding the knife at them also. The evidence of PW1 gets ample support from the evidence of PW14 also. It is significant to notice here that it is not suggested to either of them that the knife used by the accused was the one which was available in the toddy shop. They have denied that Asokan had caused any injury to the accused. The court below has examined their evidence and found it to be convincing enough. There is no reason to disbelieve them. Therefore, it is clear that it was the accused, who had inflicted injuries on Asokan which resulted in his death. The criticism that Ext.P8 F.I. statement could not have been recorded at 3.15 pm and the initial mentioning of Section 307 of IPC is with oblique motive is without any basis. CW1 who laid Ext.P8 is no more. True, the evidence of PW14 would suggest that CW1 too had accompanied the 26 deceased to the hospital. But, it is possible that PW14 might have made an honest mistake in stating about CW1 accompanying the deceased to the hospital. As regards the distance to be covered to the police station, it is quite possible that CW1 might have gone in a vehicle. Moreover, neither PW13 nor the investigating agency stands to gain by showing the recording of F.I.statement at 3.15 pm and showing initially Section 307 IPC. The fact that initially Section 307 IPC was shown in the F.I.statement clearly suggests that CW1 had not accompanied the deceased to the hospital. 14. The question then arises for consideration is what is the offence committed by the accused. The court below has considered the plea of self-defence and has come to the conclusion that the said plea is not available and the act of the accused falls within the ambit of Section 300 IPC. 27 15. The plea based on self-defence has to fail for more than one reason. First of all, there is nothing to show that the incident had taken place as claimed by the accused. It is true that the accused relies on the evidence of Dws 1 and 3, Exts.X1 to X3 and Ext.D4 to show that he had suffered injuries on his left ear. The evidence only shows that he was treated for infection of his left ear. DW3, the doctor has categorically stated that when he examined the accused, he was not told that accused had suffered injuries due to beating with a bottle and that it was suffered on the date of incident at the hands of the deceased. Further more, the injury claimed to have been suffered is a minor injury. The defence evidence does show that the injury on the pinna of the ear of the accused was sustained 2 days ago. But, evidence of DW1 is to the effect that it is only an infection. From the nature of injury noticed in Exts.X1 28 to X3 and D4, it is highly improbable that the said injury could have been inflicted by beating with a bottle. It is here one has to notice that neither to the doctor nor to the Magistrate before whom the accused was produced, did the accused say that the injury was inflicted by the deceased by beating him with a bottle. 16. It is not the obligation of the prosecution to explain every injury suffered by the accused. Unless the injury is grave, the prosecution is under no duty to offer any justifiable explanation. 17. There is also nothing to indicate that the deceased had any weapon with him or that he had committed any act which would create an apprehension in the mind of the accused so as to act himself in defence. Since it has been found that the accused had come with a knife to the toddy shop and his plea that he was attacked by the deceased has not been 29 substantiated by acceptable evidence, the plea based on self defence has necessarily to fail. 18. Even assuming for argument's sake, that the accused did not have any intention to do away with the deceased, his act of inflicting injuries 6, 7 and 8 which are sufficient in the ordinary course of nature to cause death, is sufficient to attract clause Thirdly of Section 300 of IPC. The manner of infliction of injuries, the force with which they were inflicted, the parts of the body where injuries were inflicted etc. leave one in no doubt that the accused did intent to inflict those injuries which are sufficient in the ordinary course of nature to cause death. The act of the accused squarely falls under clause 3 of Section 300. 19. The next question which needs to be considered is whether Exception 4 under Section 300 is attracted to the facts of the case. It is only appropriate 30 here to refer to the decisions relied on by the learned counsel for the appellant. 20. The facts of the decision in **Ramachandran v. State of Kerala** (supra) show that the accused and the deceased had a quarrel in the teashop and thereafter, they left the place at the intervention of PW7. They proceeded to their colony and when they reached Eruthuvapuzha Junction, they had to go through Eruthuvapuzha-Keerithodu mud road. The facts of the case reveal that at about 6 pm, the accused was found being beaten by the deceased and thereafter, the deceased went ahead when the accused followed and stabbed him. On the facts, it was held as follows : - “7. The factual background of the case at hand clearly go to show that the occurrence took place in a c course of sudden quarrel. The starting point seems to be attack by the 31 deceased, who for all practical purposes was the aggressor. In our view, the case is covered under the Fourth Exception to S.300 IPC. Conviction is altered from S.302 CPC to second limb of S.304 IPC. Accused is sentenced to undergo rigorous imprisonment for eight years to meet ends of justice.” 21. In the decision reported in **Thankachan v. State of Kerala** (supra), the facts show that there was an altercation and the deceased had attacked the accused with a soda bottle and there was a mutual fight. In the said case, a fight had suddenly erupted. On facts, it was clear that there was mutual provocation and aggravation, which prompted the accused to act in the manner he did. On the facts of the case, it was held as follows : “Considering the background facts, appropriate conviction would be under Section 304 Part I 32 IPC and not Section 302 IPC. The conviction is accordingly altered. Custodial sentence of ten years would suffice. Fine amount is reduced to Rs.5,000/-. In case fine is not paid, default sentence would be two years.” 22. In the decision reported in **Haridas v. State of Kerala** (Supra), it is seen from the facts that the deceased had gone to the house of the accused and picked up quarrel with him and in the incident, the mother of the accused was injured. It was in that context that the act of the accused was considered by the court in the said case. On the facts of that case, it was held as follows : “62. To sum up, we note that there was no premeditation on the part of the appellant. Nay, he could not even have reasonably anticipated the unfortunate incident. There was a sudden quarrel and a sudden fight upon such sudden 33 quarrel as per all indications available though we have no ocular account of the manner in which that sudden quarrel and sudden fight developed before PW1 saw the infliction. The conclusion appears to be safe that there was a sudden quarrel and a sudden fight upon such sudden quarrel. Passion was evidently running high and the overt act seen by PW1 can evidently be described to be committed in the heat of passion. The appellant cannot be said to have taken any undue advantage or acted in any exceptionally cruel or unusual manner. We do, in these circumstances, unhesitatingly agree that the appellant is entitled to the mitigative protection of Exception 4 to Section 300 IPC.” 23. In the decision reported in **Gopalakrishnan** **v. State of Kerala** (supra), it was held as follows : “The following circumstances must simultaneously and cumulatively co-exist to 34 entitle an indictee to claim the benefit of Exception No.4. They are (i) There must be no premeditation. (ii) There must have been a sudden fight upon a sudden quarrel. (iii) The act must have been committed in the heat of passion (iv) The offender must not have (a) taken undue advantage ; or (b) acted in a cruel or unusual manner. The quarrel was sudden and the fight which ensued was also sudden. It is also possible to perhaps agree that the appellant had not taken any undue advantage or had not acted in an unusually cruel manner. All murders can widely be described to be cruel and unusual. To attract Exception No.4, the cruelty or unusualness in the manner of infliction must certainly be exceptional. We, therefore, find it possible to agree with the learned counsel for the appellant in respect of ingredients 1, 2 and 4, but certainly, the 3[rd] ingredient that the act must have been committed in the heat of passion is not satisfied in the facts and circumstances of this case. Exception No.4 does not entitle an accused to absolution from culpable liability. It helps the accused only to claim mitigation of his culpable liability. 35 Exception No.4 is a classic case of the legislature making an offender less responsible for his culpable indiscretion when he acts in an occasion when passion over runs reason. In the instant case, the first incident took place in the house of the deceased and the appellant had all the time in the world to cool his passion and get over the emotional disturbance if any. We are certainly of the option that incident No.2 which is at a point geographically distant from the place of incident No.1 and chronometrically away from the incident which took place at scene No.1 cannot be held to be one entitling the accused to the plea that he acted in the heat of passion. The plea of Exception No.4 does not therefore appeal to us.” 24. In order to attract the Exception 4 of Section 300, the following ingredients will have to be satisfied : “It has to be proved: (i)that it was committed without premeditation ; (ii)that it was committed in a sudden fight ; 36 (iii)that it was committed in the heat of passion ; (iv)that it was committed upon a sudden quarrel ; and (v)that it was committed without the offender having taken undue advantage or acted in a cruel or unusual manner.” 25. Recalling the facts of the case on hand, it has already been noticed that the reason given by the accused to be present at the toddy shop at 3 pm is not acceptable. It has also been noticed that he had come there armed with a weapon. There is nothing to indicate that there was any altercation, exchange of words or scuffle between the accused and the deceased. Going by the evidence on record namely, the evidence furnished by PWs 1 and 14, the act committed by the accused at the toddy shop at 3 pm was a unilateral act. It is true that the prosecution does not admit that the accused had suffered any injuries in the incident. Though heavy reliance has been placed by the defence on the evidence of Dws 1 to 3 and Exts.X1 to X3 and 37 Ext.D4 as already discussed, that is insufficient to show that the injury was suffered by the accused as claimed by him. It has also been noticed that there is no suggestion either to PW1 or PW14 that the weapon used was the weapon which was available in the toddy shop. 26. In order to attract Exception 4 to Section 300, going by the decision relied on by the appellate court, all the circumstances must simultaneously and cumulatively exist. True, it may not be very material to determine who was the aggressor or how the fight originated as long as all the ingredients to attract the Exception are established or is gatherable from the evidence adduced by the prosecution. The provision is based on the theory that the conduct of both parties puts them in respect of guilt on equal footing. The act of one party provides provocation and the fatal act is 38 committed in heat of passion. Heat of passion means that there must be no time for the passion to cool down and the act is done on the spur of the moment. One will have necessarily to take note of the nature of injuries, the weapons used, the parts of the body where injuries were inflicted etc., in order to decide whether the exception is attracted. At any rate, there should be provocation from the side of the deceased. It may not be necessary, as already noticed, that the quarrel should have been started by the accused at the first instance. In fact, passion may develop through the course of the incident. In the case on hand, there is nothing to show that the deceased had done any act which would have caused to arouse heat of passion in the mind of the accused which would have caused him to commit the act alleged against him. There is also nothing to indicate that there was a sudden fight or 39 quarrel between the two. 27. Referring to the evidence once more, there is nothing to show that the accused had gone in search of Varghese at 3 pm to the toddy shop on the date of incident. As already noticed, it is highly improbable that after the incident in the morning when he was thrown out of the shop, he would have repeatedly gone into the shop in search of Varghese. He had gone to the toddy shop armed and there is no evidence of any quarrel or fight between the two which provoked the accused to act under a heat of passion. Moreover, the nature and number of injuries inflicted by the accused show that he had acted cruelly. There is absolutely no material available from the evidence adduced by the prosecution or from the defence evidence to show that the accused is entitled to the benefit of Exception 4 to Section 300 IPC. We are 40 unable to accept the contention that the act falls under Exception 4 of Section 300 of IPC. We find that the court below has considered all the aspects in the proper perspective. The accused was rightly found guilty of the offence of murder. We find no grounds to interfere with the conviction and sentence passed by the court below. The appeal is without any merits and it is accordingly dismissed. **M** . **Sasidharan Nambiar, Judge** ## **P.Bhavadasan, Judge** sta 41