Judgment :- (Appeal against the Judgment dated 06.03.2002 in S.C.No.356 of 2000 on the file of the learned Additional Sessions Judge, Fast Track Court No.2, Salem.) K.N. Basha, J. A-1 to A-4 are the appellants. A-1 has been convicted under Section 302 I.P.C. and A-2 to A-4 have been convicted under Section 302 read with Section 34 I.P.C. and all the four have been sentenced to undergo life imprisonment by the learned Additional Sessions Judge, (Fast Track Court No.II), Salem, in S.C.No.356 of 2000 by the judgment dated 06.03.2002. The appellants, A-1 to A-4 are challenging their conviction and sentence in this appeal. 2. The prosecution case in a nutshell, as unfolded by the evidence adduced by the prosecution, is as follows: A-1 and A-2 are the parents of A-3 and A-4. P.W.1 is the wife of the deceased. P.W.4 is the Sister-in-law of the deceased. The deceased - Pandiyan and his wife Lakshmi - P.W.1, as well as the accused are the residents of Naraikinaru M.G.R.Nagar Village and they were residing in the same street. In order to go to the house of the deceased, one has to cross the house of the accused. On 09.10.1999, the accused laid stones in the pathway leading to the house of the deceased. At about 5.45 p.m., on the same day, when P.W.1 questioned about obstructing their way to their house by laying stones, A-1 replied "remove the stones and see". At that time, the deceased - pandiyan came there and removed the stones. A-2 to A-4 also came to the scene and caught hold of the deceased. Thereafter A-1 brought M.O.1-Kuthukol and stabbed the deceased on the left side of his abdomen resulting in profused bleeding and P.W.1 lifted the deceased. When P.W.1 questioned them as to why they have done like that, A-3 threw a stone on P.W.1 and all the accused ran away from the scene. During the course of stabbing, the deceased resisted the same with his left hand and thereby sustained an injury on his left hand. When the deceased tried to escape from the grip of A-2 to A-4, the deceased sustained an injury on his left leg by hitting a stone which was lying on the floor of the scene. P.Ws.1 and 3 took the deceased to the Government Hosptial, Rasipuram by the taxi of P.W.5. 3. When the deceased tried to escape from the grip of A-2 to A-4, the deceased sustained an injury on his left leg by hitting a stone which was lying on the floor of the scene. P.Ws.1 and 3 took the deceased to the Government Hosptial, Rasipuram by the taxi of P.W.5. 3. The Doctor-P.W.7 attached to Rasipuram Government Hospital, examined the deceased at 7.30 p.m. on 09.10.1999 and found the following injuries: 1. Stab injury in the epigastric region 3 X 1 c.m. running horizontally. 2. Lacerated injury 5 X 1/2 X 1/2 c.m. left upper arm just above the elbow on the medial side. 3. Lacerated injury 2 X 1/2 X 1/2 c.m. on the medial side of the right leg above the medial aspect. Ex.P.6 is the Accident Register issued by the Doctor-P.W.7. The Doctor-P.W.7, thereafter referred the injured to the Government Hospital, Salem, for further treatment. 4. Meanwhile P.W.12 - the Head Constable received the intimation – Ex.P.7 from the Government Hospital, Rasipuram, on 09.10.1999. When he went there he was informed that the deceased was taken to Government Mohan Kumaramangalam Medical College Hospital, Salem, for further treatment. Therefore he went to that Hospital and found the deceased was not in a condition to speak. Therefore, he recorded the statement-Ex.P.1 from his wife P.W.1. He registered the case in Crime No.324 of 1999 under Sections 341 and 307 I.P.C. and sent F.I.R. - Ex.P.12 to the higher police officials. 5. The Doctor - P.W.8, attached to Government Mohan Kumaramangalam Medical College Hospital, Salem, examined the deceased on 09.10.1999 at 8.45 p.m. According to the Doctor-P.W.8, the deceased was conscious. Ex.P.8 is the Accident Register copy. The Doctor-P.W.8, also sent the message to the Magistrate for recording dying declaration. 6. The Doctor-P.W.9, attached to Government Mohan Kumaramangalam Medical College Hospital, Salem, examined the deceased on 09.10.1999 at 9.20 p.m. and at that time the deceased was conscious. The Doctor-P.W.9, also conducted surgery at the abdomen of the deceased and completed the surgery at 1.45 a.m. 7. The Inspector of Police-P.W.15, received Exs.P.1 and 12 on 10.10.1999 at 5.00 a.m. and thereafter he went to the scene of occurrence and prepared the Observation Mahazar-Ex.P.2 and the Rough Sketch-Ex.P.18 and examined the witnesses. The Doctor-P.W.9, also conducted surgery at the abdomen of the deceased and completed the surgery at 1.45 a.m. 7. The Inspector of Police-P.W.15, received Exs.P.1 and 12 on 10.10.1999 at 5.00 a.m. and thereafter he went to the scene of occurrence and prepared the Observation Mahazar-Ex.P.2 and the Rough Sketch-Ex.P.18 and examined the witnesses. Thereafter P.W.15 arrested A-1 to A-4 at 9.30 a.m. on 10.10.1999 near Naraikinaru Pirivu Road Bus stop and recorded a statement from A-1, the admissible portion of which is Ex.P.3. In pursuance of the same, he recovered the Kuthukol-M.O.1, blood stained shirt-M.O.2, under Ex.P.4. Thereafter he remanded the accused for judicial custody. Since the deceased was unconscious, he recorded the statement of P.W.1 at 4 p.m. and recovered M.O.3-dothi of the deceased, M.O.4-another dothi produced by P.W.1 under Ex.P.19. He has examined the Doctor. 8. The deceased was declared dead on 12.10.1999, while he was in the Intensive Care Unit of the hospital by the Doctor-P.W.10. The Doctor-P.W.10, sent the death intimation Ex.P.9. 9. P.W.13–another Head Contable stated in his evidence that he got the information through VHF about the death of the deceased and thereafter the offence was converted into into one under Section 302 I.P.C. and sent Express Report–Ex.P.13. P.W.15 while in the office on 13.10.1999 at 10.15 a.m. got copies of the Express Report-Ex.P.13 that the deceased succumbed to his injuries and he went to the hospital and conducted inquest over the dead body in the presence of panchayatdars. The Inquest Report is Ex.P.20. Thereafter he sent the body for post-mortem along with constable. 10. The Doctor-P.W.11 attached to the Government Mohan Kumaramangalam Medical College Hospital, Salem, received the requisition - Ex.P.10 from the Inspector of Police-P.W.15 to conduct post-mortem on the dead body of the deceased on 13.10.1999 at 3.00 p.m. and conducted post-mortem at 3.30 p.m. and found the following injuries: 1. A cut injury present over inner aspect of left elbow 2 X 0.5 X 0.5 c.m. 2. An incised wound on right ankle 0.5 X 0.5 X 0.5 c.m. 3. A midline vertical sutured wound (surgical) present on front of abdomen 27 c.m. X 2 c.m. X cavity deep. 4. 2 vertical drainage wounds (surgical) present on both flanks 1.5 X 0.5 X cavity deep. 5. An incised wound on right ankle 0.5 X 0.5 X 0.5 c.m. 3. A midline vertical sutured wound (surgical) present on front of abdomen 27 c.m. X 2 c.m. X cavity deep. 4. 2 vertical drainage wounds (surgical) present on both flanks 1.5 X 0.5 X cavity deep. 5. A horizontal stab injury on the upper aspect of left side of abdomen 2 c.m. to the left of previous injury No.3 measuring 2.5 X 0.5 X cavity deep. Margins sharp angles acute. 1. Internally a) On dissection, a sutured laceration of linear 4 c.m. X 1 c.m. X 0.5 c.m. b) Sutured wounds mesentery at 2 places 1 X 0.5 X 0.5 c.m. Sutured intact. He issued post-mortem certificate-Ex.P.11. The Doctor-P.W.11 was of the opinion that the deceased died due to stab injury to abdomen. 11. P.W.15 sent the Material Objects for chemical examination. P.W.15 also examined the other witnesses and received the Chemical Examiner's Report-Ex.P.16 and the Serologist's Report-Ex.P.17 and after completion of investigation, filed charge sheet under Section 302 read with 34 I.P.C. on 08.12.1999. 12. During the course of the Trial, the prosecution examined P.Ws.1 to 15, filed Exs.P.1 to 20 and marked M.Os.1 to 4. 13. When the accused 1 to 4 questioned under Section 313 Cr.P.C. with regard to the incriminating materials available on record, they denied their complicity. On the side of the defence D.W.1 was examined. Accused 1 to 4 filed a written statement under Section 313 Cr.P.C. The sum and substance of the written statement of A-1 is that he laid the stones within the portion of the land in his occupation, the deceased only trespassed and removed the stones laid by him and only in order to prevent the deceased from removing the stones, he went to the scene hurriedly. It is also the further case of A-1 that he kept the knife in his waist which he was using for peeling off the naaru from the coconuts. A-1 thereafter questioned the deceased as to how he can remove the stones which resulted in a wordy quarrel between the deceased and A-1. A-1's efforts to stop the deceased from removing the stones proved futile as the deceased continued to remove the stones and when A-1 prevented, the deceased took a stone and attempted to hit him on his head. A-1's efforts to stop the deceased from removing the stones proved futile as the deceased continued to remove the stones and when A-1 prevented, the deceased took a stone and attempted to hit him on his head. Therefore, A-1 in order to save his life from the immediate danger, took the knife from his waist and gave a single stab on the abdomen of the deceased. While A-1 was removing the knife after stabbing the deceased, the deceased sustained an injury on his fore arm. A-1 also stated that he was not aware of the deceased sustaining an injury on his leg by dropping the stone or due to his falling on the ground. The deceased thereafter fell down on the land of A-1 with profused bleeding. Thereafter A-1 went to Ailpatty police station with the knife and gave a report to the police. A-1, however, stated that at the time of occurrence his wife, A-2, and sons, A-3 and A-4 were not present on the scene. The occurrence was witnessed by the general public. A-1 further stated that his earlier report was suppressed by the police and a false case has been foisted against him and his family members. A-2 to A-4 stated in their written statements that they came to know about the occurrence subsequently through A-1 and all of them have been implicated falsely in this case. 14. The defence examined D.W.1 and D.W.1 also stated that the stones were laid by A-1 only within the land in his occupation, the deceased alone removed the stones which was prevented by A-1 and at that time the deceased threatened A-1 and threw a stone on the head of A-1. A-1, only while exercising his right of self-defence, gave a single stab, by taking out the knife from his waist, on the abdomen of the deceased. 15. The learned trial Judge on a consideration of the evidence adduced by the prosecution found A-1 guilty under Section 302 I.P.C. and A-2 to A-4 guilty under Section 302 read with Section 34 I.P.C. and sentenced them to life imprisonment. The judgment of the learned Sessions Judge is under challenge in this appeal. 16. 15. The learned trial Judge on a consideration of the evidence adduced by the prosecution found A-1 guilty under Section 302 I.P.C. and A-2 to A-4 guilty under Section 302 read with Section 34 I.P.C. and sentenced them to life imprisonment. The judgment of the learned Sessions Judge is under challenge in this appeal. 16. Mr.K.V.Sridharan, learned counsel appearing for the appellants made the following two fold contentions: i. As far as A-2 to A-4 is concerned, the charge framed against them is that at the time of occurrence, they pushed down the deceased and thereby caused an injury on the right leg and thereby share the common intention of A-1 to kill the deceased. But there is absolutely no evidence to substantiate that charge. On the other hand, the present version of P.Ws.1 and 4 is that A-2 to A-4 caught hold of the deceased and thereafter A-1 stabbed the deceased on his abdomen. There is also no consistent version in respect of such allegation. ii. As far as A-1 is concerned, he has caused a single stab on the abdomen of the deceased while exercising his right of self-defence as the deceased attempted to threw a stone on the head of A-1 and also only the deceased is the aggressor as he removed the stone laid by A-1 in his occupation of the land. Therefore, A-1 is to be acquitted as he has caused injury to the deceased only while exercising his right of self-defence. 17. The learned counsel also placed reliance on the following authorities: 1. 2004 SCC (Crl.) 1514 (LAXMAN SINGH VS. POONAM SINGH AND OTHERS) 2. AIR 1971 SCC 1208 (DOMINIC VS. STATE OF KERALA) 18. On these aspects we have heard Mr.E.Raja, learned Additional Public Prosecutor. 19. We have given our anxious and careful consideration to the rival contentions urged by the learned counsel for the parties and also perused the entire records. 20. As far as the first submission of the learned counsel for the appellants is concerned in respect of A-2 to A-4, we are of the considered view that there is much force. The charge against A-2 to A-4 framed by the learned Sessions Judge is that they have pushed down the deceased and thereby the deceased sustained an injury on his right leg. The charge against A-2 to A-4 framed by the learned Sessions Judge is that they have pushed down the deceased and thereby the deceased sustained an injury on his right leg. But there is absolutely no evidence available on record to show that the accused 2 to 4 pushed down the deceased. It is the version of the prosecution that A-2 to A-4 caught hold of the deceased. Even for this overt acts alleged against A-2 to A-4, there is no consistent version from the prosecution. In this case, P.Ws.1 to 4 are the eye-witnesses. P.W.3 has turned hostile and not supported the prosecution case. P.W.2 has not at all implicated A-2 to A-4 and he has stated only about A-1 attacking the deceased. P.W.4 has made vague statement in her chief examination that three persons caught hold of the deceased. But in cross examination P.W.4 has stated that she was inside of her house and while she came out of her house she saw the deceased lying with injuries and there were blood stains at the scene. Therefore, no significance should be attached to the evidence of P.W.4. As far as P.W.1 is concerned, she has stated in her chief examination that A-2 to A-4 caught hold of the deceased. But in the cross-examination she has stated that only two persons caught hold of the hands of the deceased from behind. It is also relevant to be noted that the specific version of P.W.1, in her earlier statement under Ex.P.1, makes it crystal clear that A-2 to A-4 caught hold of the deceased with a view to prevent him from removing the stones. So it cannot be said that they share the common intention of A-1 attacking the deceased. Therefore, the prosecution has come forward not only with inconsistent version in respect of A-2 to A-4 but also the versions of witnesses are self-contradictory. Therefore, there is absolutely no clear and consistent evidence against A-2 to A-4 and they are liable to be acquitted from the charges. 21. As far as A-1 is concerned, the learned counsel for the appellants strenuously contended that A-1 had attacked the deceased only while exercising his right of self-defence of property and person. Therefore, there is absolutely no clear and consistent evidence against A-2 to A-4 and they are liable to be acquitted from the charges. 21. As far as A-1 is concerned, the learned counsel for the appellants strenuously contended that A-1 had attacked the deceased only while exercising his right of self-defence of property and person. A perusal of the evidence of the eye-witnesses – P.Ws.1, 2 and 4 shows that the defence has not elicited any material that A-1 is neither the owner of the disputed land of which the stones were laid nor he is in continuous occupation of the same. The defence has put the suggestion of right of self-defence of property and person only to P.W.1 and that suggestion not put to others. There is absolutely no material to show that the deceased had attempted to threw a stone on A-1 or the deceased trespassed into the land of A-1. 22. The learned counsel for the appellants placed reliance on the decision of the Apex Court reported in 2004 SCC (Crl.) 1514 (LAXMAN SINGH VS. POONAM SINGH AND OTHERS). The Apex Court held in the above said decision that the well settled principle of law is that the burden stands discharged by showing preponderance of probabilities in favour of accused plea either by himself adducing positive evidence or by reference to circumstances transpiring from the prosecution itself. The Apex Court also re-iterated in the above decision the well settled position of law that the Court can consider the plea of self-defence even if the accused has not taken it, if the same available to be considered from the material available on record. In the above decision the Apex Court further held that, "10. As noted in Buta Singh V. State of Punjab a person who is apprehending death or bodily injury cannot weigh in golden scales on the spur of the moment and in the heat of the moment, the number of injuries required to disarm the assailants who were armed with weapons. As noted in Buta Singh V. State of Punjab a person who is apprehending death or bodily injury cannot weigh in golden scales on the spur of the moment and in the heat of the moment, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use only so much force in retaliation which is commensurate with the danger apprehended to them where assault is imminent by use of force; it would be lawful to repel the force in self-defence and the right of private defence commences as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and a hypertechnical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of the right of private defence can legitimately be negatived. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially a finding of fact. Though acquittal in respect of offence punishable under Section 447 I.P.C. is not always determinative of the question whether the right of private defence has been exceeded in a given case, the same assumes importance as in the present case. It has been significantly noted by both the courts below that the attacks were not premeditated. On the contrary, for several hours, the parties were discussing their respective stands (may be, with some amount of verbal aggression), and that aspect has indelible importance while assessing the basic issue regarding exercise of the right of private defence." But in the instant case, A-1 has not sustained any injury and further the defence has not produced any documents or records to show the ownership of the land of which A-1 has laid the stones. Therefore, the facts of the aforesaid decision relied by the learned counsel is not applicable to the instant case. In the other decision cited by the learned counsel for the appellants viz. AIR 1971 SC 1208 (DOMINIC V. STATE OF KERALA) also not applicable to the facts of the present case. 23. Therefore, the contention of the learned counsel for the appellants that the accused has caused injury to the deceased while exercising his right of self-defence of property and person is untenable and unsustainable as the same is not supported by any materials available on record. Now, we have to examine the nature of offence committed by A-1 as per the evidence adduced by the prosecution. The admitted case of the prosecution, as per the version of P.Ws.1 and 2 – eye-witnesses, is that the trouble started on the fateful day of the occurrence when the deceased removing the stone laid by the first accused. 24. P.W.2 has stated even in the chief examination that there a was a wordy quarrel between the deceased and A-1 in respect of laying of the stones by A-1 in the path way. Further, P.W.2 stated in the chief examination that A-1 stabbed the deceased on his stomach with Kuthukol - M.O.1, only when the deceased removed the stones. P.W.2 stated in his cross examination that there was a wordy quarrel between the deceased and A-1 for half an hour. It is also mentioned in Ex.P.1 given by P.W.1 that A-1 attacked the deceased only after he removed the stones. Therefore, from the above said sequences of events and the statements of the eye-witnesses, P.Ws.1 and 2 and also the report Ex.P.1 given by P.W.1, we have to consider whether A-1 is entitled to invoke Exception 4 to Section 300 I.P.C. The Hon'ble Supreme Court of India has held in 2005 (2) L.W. (Crl.) 815 (RAVI KUMAR V. STATE OF PUNJAB) that, "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. 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 no 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'." 25. The evidence of P.Ws.1,2 and 4 and also the earliest document Ex.P.1, report, makes it crystal clear that the occurrence took place without any pre-meditation in a sudden fight and without the offender having taken undue advantage or acted in a cruel or unusual manner. The occurrence started with a wordy quarrel between the deceased and A-1 on the ground that the deceased removing the stones laid by A-1 and further according to P.W.2, the quarrel between the deceased and A-1 lasted for half an hour. Further, the evidence of P.Ws.1,2 and 4 clearly shows that A-1 stabbed the deceased with the Kuthukol - M.O.1 only after the deceased removed the stones laid by him. But P.W.1 has stated in her chief examination that A-1 brought the weapon Kuthukol-M.O.1 and stabbed the deceased on his stomach after the deceased removed the stones. P.W.2 has stated in his chief examination that soon after the deceased removed the stone A-1 took the Kuthukol-M.O.1 and stabbed the deceased on his stomach. Therefore, both P.Ws.1 and 2 has not stated that A-1 went to his house and brought the weapon M.O.1-Kuthukol. P.W.2 has stated in his chief examination that soon after the deceased removed the stone A-1 took the Kuthukol-M.O.1 and stabbed the deceased on his stomach. Therefore, both P.Ws.1 and 2 has not stated that A-1 went to his house and brought the weapon M.O.1-Kuthukol. Even assuming that A-1 has brought the weapon M.O.1-Kuthukol from his house while the deceased removed the stones laid by him, it cannot be said that he had taken any undue advantage since the occurrence itself took place in front of his house as per the observation mahazar. The house of A-1 is just about 6 feet away from the scene of occurrence. Further, there is no time gap between the wordy quarrel, removal of stone by the deceased and A-1 taking Kuthukol - M.O.1 and stabbing the deceased. The entire occurrence took place in a single continuous transaction without any pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel A-1 stabbed the deceased without taking any undue advantage or acted in a cruel or unusual manner. Therefore, for the reasons stated above, A-1 is entitled to invoke Exception 4 to Section 300 I.P.C. 26. For the reasons stated above, A-2 to A-4 are acquitted of the charges levelled against them. The conviction and sentence imposed upon A-1 under Section 302 I.P.C. is set aside. Instead A-1 is convicted for the offence under Section 304 (Part-II) IPC and sentenced to undergo rigorous imprisonment for a period of five years. 27. Since the accused is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence. 28. With the above modification in the conviction and sentence, the Criminal Appeal is partly allowed.