Judgment :- (Criminal Appeal against the judgment of conviction and sentence dated 21.12.2001 in S.C.No.169 of 2001 on the file of the Additional Sessions Court, Villupuram Division, Villupuram.) M. Karpagavinayagam, J. Seenuvasan, the appellant herein, had been convicted for the offences under Sections 302 and 506 (Part-II) IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.2,000/-; and to undergo one year rigorous imprisonment respectively. Challenging the said conviction and sentence, this appeal has been filed by the appellant/accused. 2. Brief facts could be stated as under: (a) Accused Seenuvasan and the deceased Kasi are cousin brothers. P.W.1 Ramayee is the wife of the deceased Kasi. (b) On the date of occurrence, i.e. on 22.3.2001 at about 3.00 p.m., accused Seenuvasan came to the house of the deceased Kasi and requested him to come along with him to the rice mill so that he could assist him in hulling the paddy kept in the rice mill. Accordingly, the deceased accompanied the accused to the rice mill. P.W.1 Ramayee, the wife of the deceased Kasi also went to the rice mill along with her husband. (c) While hulling the paddy, there was a wordy altercation between the deceased Kasi and the accused Seenuvasan. All of a sudden, the accused took a wooden log which was used as an engine basement found available near him and beat the deceased on his head. When P.W.1 Ramayee intervened, the accused threw away the wooden log and gave hand-blows on the face and nose of the deceased. The accused then took the iron rod which was available in the rice mill and holding the iron rod, he gave a threat to the deceased. Thereafter, the accused escaped from the scene of occurrence. (d) The deceased-victim, who sustained injuries on the head, was immediately taken to Kallakurichi Government Hospital. He was admitted on 22.3.2001 at about 5.10 p.m. Thereafter, he was referred to Salem Government Hospital. (e) On 23.3.2001, on receipt of the intimation, P.W.10 Head Constable came to the Salem Government Hospital and recorded Ex.P-1 complaint from P.W.1 Ramayee, the wife of the deceased at about 11.00 a.m. and registered a case for the offences under Sections 294, 323 and 506 (Part-II) IPC. (f) P.W.11 Inspector of Police went to the scene of occurrence; observed all the formalities and recovered M.O.1 wooden log and M.O.2 iron rod. (f) P.W.11 Inspector of Police went to the scene of occurrence; observed all the formalities and recovered M.O.1 wooden log and M.O.2 iron rod. (g) Despite treatment, the deceased Kasi died on 27.3.2001. Intimation was sent to the Police Station. P.W.11 Inspector of Police took up further investigation and altered the F.I.R. into one under Sections 302 and 506 (Part-II) IPC. He conducted inquest and examined the witnesses. (h) On 28.3.2001, P.W.11 Inspector of Police arrested the accused and sent him for judicial custody. In the meantime, the body was sent for conducting post-mortem. (i) P.W.8 Doctor conducted the post-mortem and issued Ex.P-5 post-mortem certificate giving an opinion that the deceased would appear to have died due to head injuries. (j) After completion of the investigation, the charge sheet was filed against the accused for the offences referred to above. 3. During the course of trial, P.Ws.1 to 11 were examined, Exs.P-1 to P-9 were filed and M.Os.1 and 2 were marked. 4. The plea of the appellant/accused during the course of questioning under Section 313 Cr.P.C. is one of denial. 5. The trial Court, after analysing the evidence available on record, concluded that the prosecution has established its case beyond reasonable doubt in respect of the offences referred to above and thereby convicted the accused and sentenced him thereunder. 6. Challenging the said conviction and sentence, Mr.P.Mani, learned counsel appearing for the appellant/accused in this appeal would submit that except P.W.3 Murugesan, all the other important witnesses turned hostile, and even assuming that P.W.3 Murugesan was not treated as hostile witness, the evidence of P.W.3 cannot be acted upon, since P.W.3 Murugesan is closely related to the deceased Kasi and as such, the appellant/accused is liable to be acquitted of the charges. 7. Learned counsel appearing for the appellant/accused would ultimately confine his argument to the nature of the offence, stating that even assuming that the entire prosecution case is true, the offence alleged against the appellant/accused would come under Section 304 (Part-I) IPC and and hence, the appellant/accused is liable to be punished only for the said lesser offence. 8. We have heard Mr.E.Raja, learned Additional Public Prosecutor on the above aspects. 9. We have given our thoughtful consideration to the rival contentions urged by learned counsel appearing for the parties and also perused the records. 10. 8. We have heard Mr.E.Raja, learned Additional Public Prosecutor on the above aspects. 9. We have given our thoughtful consideration to the rival contentions urged by learned counsel appearing for the parties and also perused the records. 10. At the outset, it can be stated that totally, there are five eye-witnesses to the occurrence. According to the prosecution, the deceased Kasi was taken to rice mill by the accused Seenuvasan and in the mill, there was a wordy altercation between the accused Seenuvasan and the deceased Kasi. Accused Seenuvasan took the wooden log found available in the rice mill and attacked the deceased on his head, which resulted in his death in the Salem Government Hospital. 11. P.W.1 Ramayee is the wife of the deceased Kasi. P.W.2 Chellamuthu is the father-in-law of the deceased Kasi. P.W.3 Murugesan is the owner of the rice mill. P.W.4 Govindan and P.W.5 Subbu were present in the rice mill at the time of occurrence. 12. As rightly pointed out by learned counsel appearing for the appellant/accused, all the prosecution witnesses except P.W.3 Murugesan turned hostile. Merely because the prosecution witnesses except P.W.3 turned hostile, it cannot be contended that the evidence of P.W.3 Murugesan also has to be brushed aside. On the other hand, if we go through the evidence of P.W.3 Murugesan, it is clear that P.W.3 Murugesan is a natural and independent witness, who was present in the rice mill as he happened to be the owner of the rice mill when the occurrence took place and has given clear narration of the incident which took place. 13. The evidence of P.W.7 Dr. Premkumar who gave treatment to the deceased Kasi initially and P.W.8 Dr. Vallinayagam who conducted post-mortem on the body of the deceased, would indicate that the deceased sustained injuries on the head, which resulted in his death. 14. Therefore, in our view, the finding rendered by the trial Court that the appellant/accused alone caused injuries on the deceased, which resulted in his death, cannot be said to be wrong. 15. Vallinayagam who conducted post-mortem on the body of the deceased, would indicate that the deceased sustained injuries on the head, which resulted in his death. 14. Therefore, in our view, the finding rendered by the trial Court that the appellant/accused alone caused injuries on the deceased, which resulted in his death, cannot be said to be wrong. 15. With reference to the nature of the offence, it is contended by learned counsel appearing for the appellant/accused that the act committed by the appellant/accused would not come under Section 302 IPC and as such, the offence under Section 302 IPC is not made out, in view of the fact that the appellant/accused is liable to be convicted only for the lesser offence, namely Section 304 (Part-I) IPC and hence, Exception 4 to Section 300 IPC can be invoked on the facts and circumstances of the case. 16. It is also brought to our notice the decision of the Supreme Court reported in 2005 (2) L.W. (Crl.) 815 (Ravi Kumar vs. State of Punjab), wherein, the Supreme Court, while dealing with Exception 4 to Section 300 IPC, would observe in paragraphs 20, 21, 22 and 23 of the judgment as follows: "20. The residuary plea relates to the applicability of Exception 4 of Section 300 IPC. 21. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 22. The Fourth Exception of Section 300 IPC covers act done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ‘sudden fight’ implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’. 23. Considering the factual background it will be appropriate to convict the appellant under Section 304 Part II IPC, instead of Section 302 IPC as has been done by the trial Court and affirmed by the High Court. Custodial sentence of eight years would meet the ends of justice.” 17. On going through the facts of the case in hand, it is clear that there was no pre-meditation on the part of the appellant/accused. As a matter of fact, the accused himself came to the house of the deceased and took him to the rice mill so as to assist him in hulling the paddy. The deceased also willingly went to the rice mill to help the accused. Therefore, it cannot be said that the deceased was taken to the rice mill for the purpose of killing him. On the other hand, a wordy quarrel ensued between the accused and the deceased while the hulling work was on. 18. Strangely, P.W.3 Murugesan would state that the deceased also abused the accused using some words. So, out of heat of passion, the accused took the weapon which was found available in the scene of occurrence and gave a single blow on the head of the deceased. 19. Of course, it is true that P.W.8 Dr.Vallinayagam who conducted post-mortem on the body of the deceased, would mention in Ex.P-5 post-mortem certificate about the injuries sustained by the deceased. The evidence of P.W.8 Doctor adduced before the Court would indicate that the death was due to the injuries caused on the head of the deceased. 20. It is seen that the death was not instantaneous. The occurrence took place on 22.3.2001. The evidence of P.W.8 Doctor adduced before the Court would indicate that the death was due to the injuries caused on the head of the deceased. 20. It is seen that the death was not instantaneous. The occurrence took place on 22.3.2001. The deceased died in the Salem Government Hospital only on 27.3.2001, i.e. after four days to the occurrence. 21. Under those circumstances, we are of the view that the accused Seenuvasan, in a sudden fight and out of heat of passion, upon a sudden quarrel, took the weapon which was found available near him and gave a single blow on the head of the deceased. Therefore, Exception 4 to Section 300 IPC will squarely apply to the present facts and circumstance of the case. Consequently, we are to hold that the offence under Section 302 IPC is not made out. Ultimately, the accused is liable to be convicted only for the lesser offence, namely Section 304 (Part-I) IPC. 22. Hence, the conviction and sentence imposed on the appellant/accused by the trial Court for the offence under Section 302 IPC are set aside and instead, he is convicted for the offence under Section 304 (Part-I) IPC and sentenced to undergo rigorous imprisonment for seven years. The conviction and sentence for the offence under Section 506 (Part-II) IPC imposed by the trial Court are confirmed. 23. The sentences imposed on the appellant/accused shall run concurrently. The fine amount, if any, paid by the accused for the offence under Section 302 IPC is ordered to be refunded to him. Since the appellant/accused is on bail, the trial Court is directed to take steps to secure the custody of the appellant/accused to undergo the remaining period of sentence. 24. With the above modification in the conviction and sentence, the appeal is dismissed.