Judgment :- 1. Balan Kani, now 27, was tried along with another by the II Addl. Sessions Judge, Trivandrum, for offences punishable under S.302 and 323 read with S.34 Indian Penal Code for having caused the death of one Lopez, 24, and voluntarily caused simple hurt to his brother Gnanasseelan (Pw.1). On the conclusion of the trial the second accused was acquitted of all the charges and the appellant was acquitted of the charge under S.302 but convicted under S. '304' IPC. and sentenced to rigorous imprisonment for 7 years. 2. The occurrence was at about 6.30 p.m. on July 3, 1978 and the scene of offence is a pathway which runs through Kani settlement, a little beyond the boundary junction near which Lopez and pw.1 were residing. pw. 1, pw. 2, Lopez (the deceased) and Cw. 4 were all mazdoors employed at the material time in connection with the construction of Peppara dam which is only about 6 kms away from the place of occurrence by a short cut. In the Kani settlement there are a number of trees belonging to the Government and some Kanis are also residing therein. On the date of occurrence after the day's work, pw.1 and his brother Lopez were returning home along the pathway passing through the place of occurrence. pw. I was walking a little in front of Lopez. pws. 2 and 4 were also returning after the day's work and coming almost closely behind Pw.l and Lopez. When Lopez and pw.1 reached the place of occurrence they saw the appellant and the other accused sawing a tree standing in the settlement. On seeing this, pw.1 questioned the accused persons and as there was no reply pw;1 repeated the question. The second accused then called obscene words at pw.1 who retorted in the same language. The second accused then rushed towards pw.1 and beat him on his left cheek which was warded off by pw. 1. He then kicked pw. 1 on his left side below the stomach. Seeing pw. I being attacked, Lopez who was just behind him hurried towards pw.1 and pushed back the second accused. Then the appellant who came Were drew' out M.O.1 knife from his loins and inflicted a stab on the left side of his chest below the neck of Lopez causing a bleeding injury. Seeing pw. I being attacked, Lopez who was just behind him hurried towards pw.1 and pushed back the second accused. Then the appellant who came Were drew' out M.O.1 knife from his loins and inflicted a stab on the left side of his chest below the neck of Lopez causing a bleeding injury. Lopez moved a little crying that the first accused stabbed him and fell down The injured was then removed to the boundary junction but before a car was brought for removing him to the hospital, Lopez died at 7 30 p.m. Thereafter pw.1 went to the Aryanad police station and gave the first information statement Ex. Plat 1215 a.m. on the same night. A case was registered on that basis and investigation was taken up by the Circle Inspector of Police. pw.8 held inquest over the dead body under Ext. P6 inquest report. pw. 6, doctor, held autopsy over the dead body and issued Ext. P5, post-mortem certificate The appellant was arrested on 18-7-1978,14 days after the occurrence 3. The plea of the appellant was one of complete denial adding that he was not at the place of occurrence. He stated further that pw.1 and Lopez and others attempted to cut a tree belonging to one Sankaran Kani and that there ensued a quarrel between Sankaran Kani's people and these people, in the course of which Lopez sustained the injury. 4. There was no witness to be examined on his side. 5. The learned advocate appearing for the appellant contended that pws.1 and 2 are interested witnesses; that their evidence should not be relied on; that admittedly there were persons residing in the neighbourhood; that none of them has been examined; and that the knife itself was recovered long after the incident which will create suspicion in the prosecution case. 5. There is no dispute that Lopez died as a result of the injury sustained by him on the date of occurrence and that is proved by the evidence of pws. 6 and 8 and Ext. P5 and P8, It was relying on the direct testimony of pws. I and 2 and the other circumstances proved in the case that the trial court held that it was the appellant who inflicted the injury on Lopez which resulted in his death in the manner alleged by the prosecution and convicted and sentenced him as aforesaid. P5 and P8, It was relying on the direct testimony of pws. I and 2 and the other circumstances proved in the case that the trial court held that it was the appellant who inflicted the injury on Lopez which resulted in his death in the manner alleged by the prosecution and convicted and sentenced him as aforesaid. It is not disputed that pws, 1, 2, Lopez and Cw. 4 are mazdoors working in the Peppara dam and that they had to pass through the pathway running through the place of occurrence while returning home. It was pointed out by the counsel for the appellant that pw. 2 is a person residing far away from the place and he had no business to come to the place of occurrence. It has come out in his evidence that himself and his sister are mazdoors working in the Peppara dam; that her sister is residing very near the place of occurrence; that on the date of occurrence his sister did not attend to the work; and that on knowing that his sister did not attend to the work on that day he was going to his sister's house to make enquiries about her absence. pw. 2 has also to pass through the road running through the place of occurrence. Merely because pw.l is related to Lopez and pw. 2 is a mazdoor working at the same place, their evidence cannot be disbelieved. In the circumstances of this case, both these witnesses are natural and probable witnesses. Evidence shows that the Investigating Officer questioned all the neighbours and none of them had seen the occurrence and that is why he did not cite any one of them as witness. Cross-examination of pws 1 and 2 did not bring out any tangible material or circumstance to disbelieve or suspect their evidence on the material points deposed to by them. Ex. P1, first information statement, has been laid without any unreasonable delay and that contains the names of pw. 2 and Cw. 4 and the material facts of the case. pw.1 has sworn to the entire incident and his evidence is corroborated on all material particulars by the evidence of P.W.2, Ext P1 and also the medical evidence. Ex. P1, first information statement, has been laid without any unreasonable delay and that contains the names of pw. 2 and Cw. 4 and the material facts of the case. pw.1 has sworn to the entire incident and his evidence is corroborated on all material particulars by the evidence of P.W.2, Ext P1 and also the medical evidence. It has been conclusively proved by the prosecution that it was the appellant who inflicted the fatal injury on Lopez in the manner and under the circumstances alleged by them. The doctor noticed a gaping incised wound 5x2 cros on the left side of the neck which had penetrated into the chest cavity and according to the doctor, this injury was necessarily fatal and Lopez died as a result of sustaining this injury. But it is surprising that in spite of this evidence on record, and the finding that it was the appellant who inflicted the fatal injury on Lopez in the manner alleged, the learned Sessions judge acquitted the appellant of the charge under S.302 IPC. There is no appeal filed by the State against this acquittal It is also surprising to note that the learned Sessions Judge acquitted the second accused on a concession given by the Public Prosecutor that no charge under S.323 would stand against him, as there was no injury noticed on him. There also the State has filed no appeal against acquittal. More surprising is the reason given by the learned Sessions Judge for convicting the appellant under S.304 I.P.C. The learned Sessions Judge appears to have overlooked the fact that S.304 consists of two parts. It is not clear from the judgment whether it is under Part I or Part. If that the appellant has been convicted. A similar defect was noticed by this Court in another case of the same court and that has been pointed out in that judgment. it was on the ground that the case came within 4th Exception to S.300 I.P.C. that the learned Sessions Judge convicted the appellant under S.304 I.P.C. There is absolutely no evidence or material on record to come to the conclusion that Exception 4 to S.300 is attracted to this case. it was on the ground that the case came within 4th Exception to S.300 I.P.C. that the learned Sessions Judge convicted the appellant under S.304 I.P.C. There is absolutely no evidence or material on record to come to the conclusion that Exception 4 to S.300 is attracted to this case. The mere assertion in the judgment that "the murder was committed without premeditation and in the heat of passion, upon a sudden quarrel without taking undue advantage" cannot bring a case under that Exception unless the evidence on record disclosed that the act attributed to the accused was done in a sudden fight in the heat of passion upon a sudden quarrel and without the offender taking undue advantage or without acting in a cruel or unusual manner. There is no evidence in this case that there was either a sudden fight or a sudden quarrel between the appellant and Lopez or that the act attributed to the appellant was committed in the heat of passion. To attract exception 4 to S.300, all the elements stated there must be proved. Fight implies exchange of blows and the fight must be with the person who is killed. In order to constitute fight there should be exchange of blows. The fight must have been taken place, upon a sudden quarrel In the result this appeal fails and is hereby dismissed confirming the conviction and sentence passed against the appellant, Dismissed.