Judgment :- Mohammed, J. Whether the act committed by the appellant can be brought down to the scope of exception (4) to S.300 I.P.C. is the most mooted point during argument in this appeal The appellant was convicted of S.3021.P.C and sentenced to imprisonment for life. The said conviction and sentence are challenged before us. 2. The prosecution case can be summarised thus: One Rajasimh an alias Bava (P.W.4) was on intimate terms with one girl by name'Kavitha' who resides near the house of the appellant. Kavitha did not meet P.W.4 on the appointed day, as she was aware that the appellant had come to know of their affair. Two days prior to the date of incident P.W.4 questioned appellant about this. However the matter did not end there. It took a violent turn on the night of 8-5-1988. At about 4 a.m. appellant took P.W.4 outside the house of one Narayanan (where they went to attend a marriage party). On the way they quarreled and there was a tussle between them. Deceased Kannan who was sleeping outside his house on hearing hue and cry came out. He warned the appellant that he would be forced to act if accused would cause any harm to P.W.4. Then a scuffle ensued between the appellant and the deceased and both fell down and rolled on the ground. However they were separated by others. Appellant then left the place saying, "I will show you". The appellant came back with a dagger. On seeing him the deceased ran towards west but the appellant chased him and stabbed him on the back. Deceased could move forward for some more steps and he fell down. The appellant attempted to stab him again but he could not do so as others reached the place by that time. Deceased was removed to the Medical College Hospital, Trichur. The doctor who examined the deceased declared him dead. 3. P.W.I went to Kasba Police station and lodged F.I. statement. Appellant was arrested on 10-5-1986. On the basis of information supplied by him M.O.I dagger was recovered. 4. The prosecution story can conveniently be divided into two stages. The first stage relates to the incident, which happened behind the house of the deceased, which ended with the intervention of P.W.I and P.W.2. The second stage relates to the chasing of the deceased and stabbing him. On the basis of information supplied by him M.O.I dagger was recovered. 4. The prosecution story can conveniently be divided into two stages. The first stage relates to the incident, which happened behind the house of the deceased, which ended with the intervention of P.W.I and P.W.2. The second stage relates to the chasing of the deceased and stabbing him. These two stages of the incident were spoken to by P.W.I, who gave Ext.P1 first information statement. All the material particulars regarding both the stages are spoken to by P.Ws. 2 and 3 in court. P.W.4 also has spoken to the first stage of the incident. The names of P. W.1 and P.W.2 as the persons present at the time of the occurrence are found in the F.I. statement. The doctor, P.W.12who conducted post-mortem examination deposed that the injury sustained by the deceased could be caused by weapon like M.O.I. We find no reason to disbelieve the testimony of P.W.I and P.W.2. Nor do we find any blemish in the evidence of P.W.4. We hold that the deceased died as a result of the stab injury inflicted by the appellant with M.O.I weapon. 5. It was contended by the appellant that there was heat of passion upon a sudden quarrel between the appellant and the deceased and as a result of that the offence was committed. Sri. P.Vijayabhanu learned counsel for the appellant therefore argued that this is a case where exception (4) to S.300 would apply and hence the offence would come down to S.304 part I. Exception (4) to S.300 is extracted below: "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's 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." The Supreme Court in -Surinder Kumar v. Union Territory, Chandigarh (AIR 1989 SC 1094) held that in order to invoke the above provision four requirements must be satisfied. They are: (1) it was a sudden fight, (ii) There was no pre-mediation,(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. They are: (1) it was a sudden fight, (ii) There was no pre-mediation,(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. As for the 'sudden quarrel', the court said, "The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault". The essence of the exception as laid down by the Supreme Court is this: "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 proves fatal he would be entitled to the benefit of this exception provided he has not acted cruelly". The person claiming the benefit under the above exception shall satisfy all the aforesaid requirements. The fulfillment of only one or other of the requirements will not qualify the offender to claim the benefit under the exception. Needdless to point out that the burden is on the accused to prove the aforesaid requirements in order to avail himself of the benefit under the exception (4). 6. In the present case it has come out in evidence that the deceased was unarmed whereas the appellant was armed with a deadly weapon. When the appellant pleads that he is entitled to the benefit under exception (4) of S.3001.P.C., the burden to prove the existence of circumstances constituting the exception is on the accused (appellant) in view of the provisions contained in S.105 of the Evidence Act. 7. The appellant came out from his house with M.O.I dagger and chased the deceased and inflicted injuries on him in consequence of which he died. Initially there was a scuffle and on intervention of others that was subsided. There was no fight between the appellant and deceased thereafter. Therefore it is difficult to say that there was no pre-meditation on the part of the appellant. 8. Turning to the question whether the appellant had taken any undue advantage or acted in a cruel manner, the conduct of the appellant and the nature of injuries inflicted by him are relevant. Injury No 1 is an incised penetrating wound, 3.5x0.8cm cutting the lower edge of the rib. It was because of this injury caused with M.O.I dagger that the deceased died on the spot. He was unarmed and was fleeing for his life. Injury No 1 is an incised penetrating wound, 3.5x0.8cm cutting the lower edge of the rib. It was because of this injury caused with M.O.I dagger that the deceased died on the spot. He was unarmed and was fleeing for his life. We are therefore sufficiently convinced that the appellant had taken undue advantage. 9. Learned counsel relied on the decision in Sreedharan v. State of Kerala (1992 S.C. 754) in support of his argument that the offence committed by the appellant falls under S.304 Part I. It is doubtful whether the appellant therein had claimed the benefit under exception (4). That apart, the facts are distinctively dissimilar. In that case when the appellant and his mother were taking food in the kitchen, deceased came and asked for food which was objected to by the appellant's wife. Then the deceased became furious and kicked the plate containing food. He went out and challenged the appellant which compelled him to take out a dagger and to follow him at a distance of 81ft. ending in the infliction of a blow on the deceased. There was no interval nor was there any intervention by others in the course of the incident beginning from the kitchen and ending on the road which would subside the heat of passion. In the High Court the appellant contended in that case that exception (1) to S.300 would apply. Hence, when the Supreme Court brought the offence down to S.304 the court would have accepted the plea based on that exception. 10. the aforesaid discussion drives us to conclude that the appellant in this case is not entitled to invoke the provision contained in exception (4) to S.300 IPC. It is therefore not possible for us to alter the conviction to S.304 part II I.P.C. 11. We accordingly confirm the conviction and sentence passed against the appellant by the learned Sessions Judge. The appeal is dismissed.