Judgment :- 1. Kantan Kochukunju alias Kutten, Accused No.1 in Sessions Case No.6 of the 1953 on the file of the Mavelikara Sessions Court, has preferred Criminal Appeal No.124 against his conviction by the learned Sessions Judge of that court for committing an offence of culpable homicide not amounting to murder falling under the second part of S.304 I.P.C. and the sentence of two years' rigorous imprisonment passed in respect thereof. His elder brother Kantan Narayanan was Accused No. 2 in the said case. The case against Accused No.1 was that he caused the death of one Podiyan by stabbing him with a pen-knife in the region of his chest. The trial was for committing murder but the learned judge while finding that Podiyan died as a result of the stab accused No.1 inflicted on him held that the case fell within Exception 4 to S. 300 I.P.C. and that the offence therefore only amounted to one under S.304(2). In awarding punishment to Accused No.1 the learned judge said that "considering the low strata of society to which the accused belongs and other circumstances disclosed in the case" a sentence of two years' rigorous imprisonment will meet the ends of justice. Accused No. 2, the elder brother was alleged to have abetted the commission of murder by Accused No. 1, besides having given a blow with a stick to the deceased Podiyan. The learned judge acquitted him of the charge of abetment of murder but found that he had inflicted hurt to the deceased with a stick and accordingly convicted him of the offence under S. 323 and sentenced him to undergo rigorous imprisonment for one month. The sentence is non-appealable and we are not concerned with Accused No. 2 here. The State feeling aggrieved by the acquittal of Accused No.1 on the charge of murder has preferred Criminal Appeal No.134. The memorandum of appeal by the State also complains that even assuming that the offence Accused No.1 committed would only fall under S. 304, Part II, the sentence of two years' rigorous imprisonment is in the circumstances of the case grossly inadequate. We have therefore before us the appeal of Accused No.1 against his conviction and sentence and the State's appeal against the acquittal of Accused No.1 on the charge of murder. 2. We have therefore before us the appeal of Accused No.1 against his conviction and sentence and the State's appeal against the acquittal of Accused No.1 on the charge of murder. 2. The occurrence complained of took place at about 3 p.m. on 22nd November 1951 at the Pathayapara Reserve Forest near Konni. Accused Nos.1 and 2 were at the time cow-herds employed by one Madhavan Nair of the Konni Agricultural Colony. Podiyan, the deceased, was also a cow-herd and he was working under Pw.1 who also belong to the said agricultural colony. It would appear that the relations of the two brothers Kutten and Narayanan on the one hand and Podiyan on the other were far from cordial for some time prior to the day Podiyan met with his end. On 23rd November 1951 when these three persons and some eye-witnesses to the occurrence were herding their cattle in the Injipara and Pathayapara Reserves the accused persons removed from the necks of two cattle herded by Podiyan four 'Kotties" and that paved the way for the subsequent events. Podiyan protested against the said unauthorised action of Accused 1 and 2 and went after them to get back the kotties removed by them. He first caught hold of the kotties in the hands of Accused No. 2 but he then threw them away down a steep incline in the wild forest. Podiyan's attempt to get the kotties in the hands of Accused No.1 was equally unsuccessful as the latter also threw the kotties away. Exchange of bad words took place between them and that was soon followed by a scuffle. Accused No. 2 then gave a blow on the right side of Podiyan's neck with stick used by him for herding cattle. Podiyan raised his hand to hit back but Accused No. 2 caught hold of Podiyan and kept him within his hold from behind. While Podiyan was in that helpless condition accused No.1 took out his knife from the fold of his loin cloth, opened it and availed of the situation to inflict a stab on Podiyan's chest. As blood gushed out the persons ran away. Podiyan also ran for some distance but he soon fell down on the road close by. His companions Pws. 2 and 3 who saw the occurrence and knew that Podiyan had died almost instantaneously, immediately reported the incident to Pw.1's house. As blood gushed out the persons ran away. Podiyan also ran for some distance but he soon fell down on the road close by. His companions Pws. 2 and 3 who saw the occurrence and knew that Podiyan had died almost instantaneously, immediately reported the incident to Pw.1's house. Pw.1 was absent at Pathanamthitta but when he returned in the evening he went to the scene of the crime and saw Podiyan's dead body. Next morning report was made to the Police about the incident. They proceeded to the spot and held the inquest over the dead body. Afterwards the Medical Officer-in-Charge of the Dispensary, Konni, conducted the autopsy. During the course of the investigation the accused persons were apprehended and in due course the Police filed the charge-sheet. After the preliminary enquiry by the Pathanamthitta Magistrate the accused persons were committed to the Mavelikara Sessions Court to stand their trial. Mention has already been made as to how the trial ended. 3. There is ample evidence in the case that Podiyan died as the result of the stab-wound he sustained at the hands of accused No. 1. Though before the lower court a suggestion was made that one Thomma, a semi-crack, inflicted the injury on Podiyan that was not persisted before this court. The accused's memorandum of appeal in Criminal Appeal No. 124 is more a plea for mitigation of the sentence than a denial of the commission of the crime. He states there that he waved the knife in self-defence. But there is absolutely no material to support it. Such a case sees the light of the day for the first time in the said memorandum. The eye-witnesses to the occurrence are Pws. 2 to 5 and the learned judge has discussed their evidence in detail and has come unhesitatingly to the conclusion that they are witnesses of truth, that they saw the occurrence and that their version as to the circumstances under which accused 1 stabbed Podiyan has to be accepted. We have heard Mrs. Fatima Abdhurahiman's arguments on behalf of the accused and also carefully persued the depositions. We are unable to come to a different conclusion from that arrived at by the court below that the accused inflicted the stab-wound of which Podiyan died. We have heard Mrs. Fatima Abdhurahiman's arguments on behalf of the accused and also carefully persued the depositions. We are unable to come to a different conclusion from that arrived at by the court below that the accused inflicted the stab-wound of which Podiyan died. The learned judge before whom the witnesses were examined have been impressed with their demeanour and he has made special mention of it in his judgment. It was Pws. 2 and 3 who carried the news about the incident to Pw.1's house. Besides the four eye-witnesses mentioned above Pw. 6, another cow-boy, said that he heard a cry from the direction of the scene of the offence and when he went there he saw the accused persons running away and Podiyan falling on the road. Soon afterwards he found that the latter was dead. 4. In the light of the foregoing evidence Criminal Appeal No. 124 has to be dismissed. As for the State Appeal exception is taken by the learned Public Prosecutor to the application by the learned judge of Exception 4 to S. 300 I.P.C. That exception reads: "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 offenders having taken undue advantage or acted in a cruel or unusual manner". The explanation appended to the said exception states that it is immaterial in such cases which party offers the provocation or commits the first assault. The primary question however is whether the exception itself can be applied to the present case. In setting out the facts of the case we pointed out that Podiyan was being held from behind by Accused No. 2 when Accused No.1 took out his knife and gave a stab in a vital part of the body of Podiyan as the chest region. The post-mortem certificate describes the consequent wound thus:- "Incised gaping wound 11/4" x 1" situated 2" above the left nipple. It runs obliquely downwards to the right, cuts the intercostal muscle between the 3rd and 4th ribs, cuts the 4th rib at its cartilaginous portion, cuts the anterior border of the left lung for 1 ", pierces the right and the left ventricles of the heart cutting the septum between the two". To attract Exception 4 to S. 300 more than one requirement is needed. To attract Exception 4 to S. 300 more than one requirement is needed. Even assuming that the requirement of the first part of the exception is satisfied it is necessary that the offender should not have taken any undue advantage or acted in a cruel or unusual manner. To say that Accused No.1 did not take undue advantage of the situation created by his brother holding Podiyan from behind and rendering him almost motionless or that in that situation he did not act in a cruel manner is a proposition with which we cannot agree. The learned judge has not referred to this aspect at all in his judgment. Nor are we in the circumstances of the case prepared to say that the facts can be made to fit in with the first requirement of the exception either. No doubt when Accused 1 and 2 removed the kotties they might not have anticipated the subsequent developments, but we cannot find any sudden fight or any occasion for passions to be aroused or even any sudden quarrel. Whatever that be, even if the facts satisfy the first part of the exception, it is to us undoubtedly clear that Accused No.1 took undue advantage of the situation and acted extremely cruelly in driving a sharp lethal weapon into the chest of his victim so as to pierce the left lung and the heart. The acquittal of accused 1 on the charge of murder is in our view clearly wrong and we accordingly set it aside. 5. Regard being had to the fact that the lower court had acquitted him of that charge and that he was only 18 years of age we do not consider that the extreme penalty of the law should be imposed upon him. While therefore convicting Accused No.1 of the offence of murder we hold that the sentence of transportation for life will meet the ends of justice. He is sentenced accordingly. Before concluding we may observe the reason the learned judge gave to award the sentence of two years' rigorous imprisonment struck us as odd. The sentence fell short even of the punishment prescribed for an offence under S. 324 I.P.C. 6. Criminal Appeal 134 is therefore allowed, the acquittal on the murder charge is set aside and Accused No.1 is convicted and sentenced as above. Criminal Appeal No. 124 is dismissed.