Judgment :- (PRAYER: Appeal against the judgment and decree of the learned Additional Sessions Judge, Nagapattinam in S.C.No.155 of 2001, dated 10.10.2001.) M. Karpagavinayagam, J. Appellants are A.1 to A.3 respectively in Sessions Case No.155 of 2001 on the file of the learned Additional Sessions Judge, Nagapattinam. Charge No.1 was framed against A.1 under Section 324, IPC for causing injuries to P.W.2 and Charge No.2 was framed against A.3 under Section 324, IPC in respect of the attack on P.W.3. The third charge was framed against A.1 under Section 307, IPC for causing injuries to P.W.1. The fourth charge was framed against A.2 under section 302, IPC for causing the death of Sudha, the deceased in this case. The fifth charge was framed against A.1 and A.3 under Section 302, IPC read with Section 34, IPC for sharing the common intention of A.2 in causing the death of the deceased. The learned trial Judge, finding A.2 guilty under Section 302, IPC, sentenced him to undergo imprisonment for life and imposed a fine of Rs.1000/- with a default sentence of three months rigorous imprisonment. A.1 and A.3 on being found guilty under Section 302, IPC read with Section 34, IPC were similarly sentenced as in Charge No.4. A.1 and A.3 were also found guilty under Section 324, IPC and each of them was sentenced to undergo two years rigorous imprisonment together with a fine of Rs.500/- and a default sentence of three months rigorous imprisonment. A.1 on being found guilty under Section 307, IPC was sentenced to undergo five years rigorous imprisonment together with a fine of Rs.500/- with a default sentence of three months rigorous imprisonment. 2. The brief facts which are necessary for the disposal of the appeal are as follows:- A.1 Pakkirisamy and A.3 Rani are husband and wife. A.2 Annadurai is their son. P.W.1 Kathan is the father of the deceased Sudha. P.W.2 Anbazhagan is closely related to P.W.1, in that P.W.2 is the nephew of P.W.1. P.W.3 Vadivelu is their neighbour. All of them were residing in the same street. There was a land dispute between A.1 and P.W.1 an there used to be frequent quarrels between A.1 and P.W.1 with regard to the same. Therefore, a panchayat was convened and P.W.5 was one of the panchayatdars. P.W.3 Vadivelu is their neighbour. All of them were residing in the same street. There was a land dispute between A.1 and P.W.1 an there used to be frequent quarrels between A.1 and P.W.1 with regard to the same. Therefore, a panchayat was convened and P.W.5 was one of the panchayatdars. Though P.W.5 and other panchayatdars held that the disputed land belongs to P.W.1, A.1 did not agree with the decision taken by them. On 23.12.2000 at 9.30 p.m. P.Ws.1, 2 and 3 were talking with each other by sitting in front of the house of P.W.1. A.1 to A.3 were seen sitting in front of their house, which was situated opposite to the house of P.W.3 and at that time, A.1 made some sarcastic remarks against P.W.1. P.W.1 questioned A.1 as to why he is talking ill of him. Immediately, A.1 retorted by saying that he would talk like that only and rushed towards his house, took an aruval and began to attack P.W.1. P.W.1 warded off the same and the cut fell on his left hand. Thereafter, the next cut fell on his shoulder. Suddenly, P.W.2 Anbazhagan, the nephew of P.W.1 intervened. He was also cut on his left ear, left neck and left ribs by A.1 with the same aruval. Sudha, the deceased, who was aged about 18 years, intervened to prevent further attack on his father. At that time, A.2 Annadurai, the son of A.1, came there with a knife and stabbed Sudha on the left side of her chest. Sudha fell down on the ground. On seeing this, P.W.3, Vadivelu also intervened and he was attacked by A.3 with Vangu aruval on his forehead. On hearing the shouting, P.W.4 and others came to the scene and made arrangements to take the injured P.Ws.1 to 3 and the deceased to the hospital in a bullock cart. While they were proceeding towards the Government Hospital, Thiruthuraipoondi, the deceased Sudha, died on the way. P.W.8, the doctor who was on duty, examined her and declared her dead. He issued the Accident Register, Ex.P.15 in respect of the following injuries found on her body:- "Stab injury below the middle of Lt.clavicle 3 cm x 1.5 cm x 4 cm over the left side of chest. Elliptical in shape. Body kept in the mortuary." 3. P.W.8, the doctor who was on duty, examined her and declared her dead. He issued the Accident Register, Ex.P.15 in respect of the following injuries found on her body:- "Stab injury below the middle of Lt.clavicle 3 cm x 1.5 cm x 4 cm over the left side of chest. Elliptical in shape. Body kept in the mortuary." 3. P.W.8, the Assistant Civil Surgeon attached to Thiruthuraipoondi Government Hospital also gave treatment to P.Ws.1 to 3 and issued Ex.P.12, Accident Register in respect of the injuries found on P.W.2 Anbazhagan; Ex.P.13, Accident Register in respect of the injuries found on P.W.1 and Ex.P.14, Accident Register in respect of the injuries found on P.W.3 Vadivelu. 4. In the meantime, on receipt of the information from Thiruthuraipoondi Police Station, P.W.14, the Sub-Inspector (in-charge) of the said police station proceeded to the Government Hospital, Thiruthuraipoondi and reached there at 1.00 p.m. In the hospital, he examined P.W.1, who was admitted as an in-patient and recorded his statement, which stands marked as Ex.P.1. He returned to the police station and on the basis of Ex.P.1 statement given by P.W.1, he registered a case in Crime No.280 of 2000 against the accused under sections 324 and 302, IPC. Ex.P.23 is a copy of the printed First Information Report. He dispatched the express reports to the higher officials as well as to the Court. 5. P.W.15, the Inspector of Police attached to Thiruthuraipoondi Police Station, took up further investigation in the case. He reached the scene of occurrence at 3.30 a.m. where in the presence of witnesses, he prepared Ex.P.3, the observation mahazar and drew a rough sketch, Ex.P.25. He also recovered the bloodstained earth and sample earth under a cover of mahazar in the presence of the same witnesses. He went to the hospital and questioned P.Ws.1 to 3 and recorded their statements. He seized the material objects produced by the witnesses under Form 95. Thereafter, he conducted inquest over the body of the deceased Sudha between 6.00 a.m. and 8.00 a.m. in the presence of panchayatdars. Ex.P.26 is the Inquest Report. After the inquest, he issued a requisition, Ex.P.16, to the doctor to conduct autopsy on the body of the deceased. 6. He seized the material objects produced by the witnesses under Form 95. Thereafter, he conducted inquest over the body of the deceased Sudha between 6.00 a.m. and 8.00 a.m. in the presence of panchayatdars. Ex.P.26 is the Inquest Report. After the inquest, he issued a requisition, Ex.P.16, to the doctor to conduct autopsy on the body of the deceased. 6. On receipt of the requisition, Ex.P.16, P.W.9, the Civil Assistant Surgeon attached to the Government Hospital, Thiruthuraipoondi, conducted autopsy on the body of the deceased Sudha and found the following injuries:- "External injuries:- A stab wound of about 4 cm x 1.5 cm x 3 cm on the left infraclavicular area. - Elliptical shape extending downwards left to right at 45 degree angle. Internal injuries:-On exploration of the wound - stab wound - pierces the sternum - and punctured the left atrium of left ventricle -2 cm x 1 cm x 2 hole thickness the left ventricle - Heart. 2) about one line of fluid blood present in the thoracic cavity. 3) Blood clot present in the pericardial cavity. 4) Heart chambers empty." The doctor issued Ex.P.17, the Post-mortem Certificate with his opinion that the deceased would appear to have died of haemorrhage and shock due to injury to vital organ. 7. P.W.15, in the meantime, continued with his investigation and arrested A.1 at 3.00 p.m. on 24.12.2000 and at 4.00 p.m. on the same day, he arrested A.3. When he questioned them, both of them gave statements, pursuant to which, he recovered the aruvals produced by them. Thereafter, A.1 and A.3 were sent for remand. The material objects were despatched to the Court for chemical analysis. On 28.12.2000 at 4.00 p.m. he arrested A.2 from near Thiruthuraipoondi bus stand and recorded his statement and recovered the knife produced by him and thereafter sent him also for judicial remand. In the meantime, he questioned the other witnesses in the case and recorded their statements. After the completion of investigation, he filed the final report against the accused on 16.3.2001. 8. During the course of trial, the prosecution examined P.Ws.1 to 15 and marked Exs.P.1 to P.26 and produced M.Os.1 to 12. When the accused were questioned under section 313, Cr.P.C. on the incriminating circumstances appearing against them, they denied their complicity in the crime and have stated that they were away form the village for attending some function. 8. During the course of trial, the prosecution examined P.Ws.1 to 15 and marked Exs.P.1 to P.26 and produced M.Os.1 to 12. When the accused were questioned under section 313, Cr.P.C. on the incriminating circumstances appearing against them, they denied their complicity in the crime and have stated that they were away form the village for attending some function. However, no evidence has been adduced to prove the same. The trial court, having considered the evidence available on record, convicted A.1 for the offence under sections 307, 324 and 302 read with section 34, IPC. A.2 has been convicted for the offence under section 302, IPC, while A.3 has been convicted for the offence under sections 324 and 302 read with section 34, IPC. Hence, the appeal. 9. Mr.R.Sankarasubbu, learned counsel appearing for the appellants took us through the entire evidence available on record and contended that the evidence of P.Ws.1 to 4 cannot be accepted for the reason that they are interested witnesses and especially when there is an enmity between them, their evidence would lack credibility and, as such, the accused are liable to be acquitted. However, he confined his argument to the nature of the offence committed by the accused. According to him, A.1 and A.3 are liable to be convicted for their individual acts and that they cannot be convicted under Section 302 read with Section 34, IPC, since they have not inflicted any injuries on the deceased. He would further contend that even assuming that A.2 inflicted the fatal injury on the deceased, since there is only a single stab and that too has been caused on account of a sudden quarrel, he is entitled to be convicted for a lesser offence than the one under section 302, IPC. In support of the said contention, he relied upon the decisions of the Supreme Court in Ravi Kumar -Vs- State Of Punjab (2005-2-L.W.(Crl) 815) And Tholan -Vs- State Of Tamil Nadu ( Air 1984 S.C. 759 = 1984 Crl.L.J.478). 10. The learned Additional Public Prosecutor, in justification of the conviction of A.2, would submit that A.2 has been rightly convicted for the offence under section 302, IPC, since the injury inflicted by him is very serious in nature and has been entered at the heart and the measurements of the knife also would indicate that the accused had an intention to kill the deceased. Therefore, his conviction under section 302, I.P.C. is justified. He has also ventured to make a submission with regard to the charges levelled against the other accused, by stating that all the accused were armed with weapons and attacked the deceased, and therefore, the other accused are also liable to be convicted for the offence under section 302 read with section 34, IPC. 11. We have heard the learned Additional Public Prosecutor also. We have given our careful consideration to the rival contentions. 12. According to the prosecution, when A.1 made some sarcastic remarks against P.W.1, who was sitting in front of his house, P.W.1 questioned him as to why he is making such remarks against him and in that process, the occurrence took place. It cannot be debated that there was also a panchayat convened to resolve a land dispute between P.W.1 and A.1 and even according to P.W.5, who is one of the panchayatdars, in the panchayat, it was held that the land in dispute belonged to P.W.1, but however, A.1 did not agree with the decision taken by the panchayatdars. So, these things would go to show that there was a prior enmity between them and admittedly the panchayat was convened. In that context, we have to see the evidence of P.W.1. As indicated above, when P.W.1 questioned as to how A.1 could make such remarks against P.W.1, A.1 immediately ran towards his house, came out with an aruval and began to attack P.W.1. When P.W.3 intervened, A.3 attacked him with Vangu aruval on his forehead. The Accident Registers, Exs.P.12, P.13 and P.14 would indicate that P.Ws.1 to 3 sustained injuries on the respective parts of the body. P.W.4 also would state that he saw P.Ws.1 to 3 being attacked by A.1 and A.3. It is the further case of the prosecution that when the deceased Sudha intervened, A.2 with the knife, M.O.3 gave a heavy blow on the chest of the deceased, resulting which, she fell down and on her ay to the hospital, she died. Ex.P.17, the Post-mortem Certificate given by the doctor P.W.9 and the Accident Registers, Exs.P.12 to P.14 issued by the doctor to speak about the injuries found on P.Ws.1 to 3, would clearly indicate that the occurrence had taken place in the manner alleged by the prosecution. Ex.P.17, the Post-mortem Certificate given by the doctor P.W.9 and the Accident Registers, Exs.P.12 to P.14 issued by the doctor to speak about the injuries found on P.Ws.1 to 3, would clearly indicate that the occurrence had taken place in the manner alleged by the prosecution. The defence case is that even though they were not present in the village, a false case had been foisted upon them on the ground that they belong to a different political party. Unfortunately, no evidence had been adduced to that effect. Nothing had been elicited in the cross-examination of any of the witnesses that they spoke falsehood against the accused. Therefore, it has to be held that the prosecution had established its case beyond all reasonable doubts. But with regard to the common intention attributed to A.1 and A.3, we have to state something. Even according to the prosecution, A.1 and A.3 attacked P.Ws.1 to 3. At that time, when the deceased Sudha intervened to prevent the further attack on her father, P.W.1, A.2 came there with a knife, M.O.3 and caused a heavy stab on the chest of the deceased, with the result, the deceased fell down. So, the materials available on record, through the evidence of P.Ws.1 to 4, would not indicate that A.1 and A.3 knew that A.2 would come with a knife and attack the deceased, who intervened to save her father, P.W.1. Therefore, the common intention cannot be attributed to A.1 and A.3 and, as such, they are liable to be convicted for their individual acts alone. Accordingly, A.1 and A.3 are liable to be acquitted in respect of the offence under section 302, IPC read with section 34, IPC and they are accordingly acquitted of the said charge. 13. In respect of the attack made by A.2 causing injury on the chest of the deceased, the learned counsel would, on the basis of the above said authorities, state that as there is a sudden quarrel and there is only a single stab, he is liable to be convicted for the lesser offence, i.e. either under section 304 Part-I, IPC or Section 304, Part-II, IPC. In this context, it would be appropriate to refer to the observations made by the Supreme Court in Ravi Kumar -Vs- State Of Punjab (2005 (2) L.W. (Crl) 815), wherein in para 22 it has been held thus:- "22. In this context, it would be appropriate to refer to the observations made by the Supreme Court in Ravi Kumar -Vs- State Of Punjab (2005 (2) L.W. (Crl) 815), wherein in para 22 it has been held thus:- "22. The Fourth Exception of Section 300, IPC covers acts 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 I 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. 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; © 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. 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. 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 advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. 14. On the basis of the above observation of the Supreme Court, it is contended that in this case, out of a sudden quarrel and heat of passion, only a single injury has been inflicted. There is no dispute with regard to the settled law that the intention has to be gathered from the kind of the weapon used and the force with which it was employed and the part of the body on which the injury was caused and other attendant circumstances. In this case, admittedly, there was no quarrel between A.2 and the deceased or the prosecution party. It is the case of the prosecution that A.1 and A.3 attacked P.Ws.1 to 3. As such, there is no possibility to hold that the occurrence had taken place in a heat of passion or in a sudden quarrel, as far as A.2 is concerned. The measurement of M.O.3 given in Ex.P.10 mahazar would indicate that it is a lengthy and weighty weapon. On a perusal of Ex.P.17, the Post-mortem Certificate, it is clear that the stab would has pierced the sternum and punctured the left atrium of left ventricle - Heart. The measurement of M.O.3 given in Ex.P.10 mahazar would indicate that it is a lengthy and weighty weapon. On a perusal of Ex.P.17, the Post-mortem Certificate, it is clear that the stab would has pierced the sternum and punctured the left atrium of left ventricle - Heart. The way in which the knife has been used would show that heavy force must have been employed by A.2, in such a way, it caused injury to the heart. The Supreme Court would say that for the application of Exception 4 to section 300, IPC, it must not only be shown that there was a sudden quarrel and no premeditation, but it must also be shown that the offender had taken undue advantage or acted in a cruel or unusual manner. In this case, while holding that there was no sudden quarrel or premeditation, it was also not established by the prosecution that the offender had taken undue advantage or acted in a cruel and unusual manner. On the other hand, it can very well be said that the offender, taking undue advantage of the fact that the deceased was unarmed, had acted in a cruel and unusual manner. Therefore, the decision cited by the counsel for the appellants would not, in our view, apply to the present facts of the case. Consequently, we have to hold that A.2 is liable to be convicted for the offence under section 302, IPC and as such, the conviction and sentence imposed by the trial court are confirmed with regard to the said charge. 15. Therefore, A.1 and A.3 are liable to be acquitted only in respect of the offence under section 302, IPC, read with section 34, IPC and conviction of A.1 and A.3 under section 324, IPC and further conviction of A.1 under section 307, IPC and the consequent sentence imposed upon them are confirmed. The conviction and sentence imposed upon A.2 for the offence punishable under section 302, IPC are also confirmed. 16. The learned counsel stating that A.3 was sentenced to undergo two years rigorous imprisonment for the conviction under section 324, IPC, has pointed out that A.3 being a woman aged 55 years and that she was in jail for more than six months, her case may be considered favourably. 16. The learned counsel stating that A.3 was sentenced to undergo two years rigorous imprisonment for the conviction under section 324, IPC, has pointed out that A.3 being a woman aged 55 years and that she was in jail for more than six months, her case may be considered favourably. Therefore, while confirming her conviction for the offence under section 324, IPC, we reduce the sentence imposed on her to the period already undergone. 17. The appeal is partly allowed.