Judgment :- R. Balasubramanian, J. The appellant in this appeal stands convicted in S.C.No.178 of 2005 on the file of Additional Court of Sessions (Fast Track Court No.III), Chennai under Section 302 I.P.C., for which he stands sentenced to undergo imprisonment for life together with a fine of Rs.1,000/- carrying a default sentence. He is therefore before this court in this appeal challenging his conviction. Heard Mr.S.Govindarajan, learned counsel for the appellant and Mr.C.T.Selvam, learned Additional Public Prosecutor for the State. 2. According to the prosecution and admittedly in a drunken brawl the accused is shown to have fatally attacked the victim by name Sathiyaseelan at about 3.30 p.m. on 23. 2005 just in front of the liquor shop run by the Government Corporation resulting in his death, two days later. To prove their case, the prosecution examined P.Ws.1 to 16 besides marking Exs.P.1 to P.26 and M.Os.1 to 5. The defence did not let in any oral evidence but marked Ex.D.1, the death intimation of Sathiyaseelan. P.Ws.1,2 and 4 are examined as eye witnesses to the crime. P.W.1 is working as a salesmen in the liquor shop run by the Government Corporation. According to him, the accused and the deceased used to visit the shop for buying liquor and therefore he knows them well. The accused is a rag picker. At 3.30 p.m. on the occurrence day the accused and deceased came to his liquor shop; purchased liquor and sitting outside the shop started consuming it and at that time P.W.1 saw the accused demanding a sum of Rs.2/-from Sathiaseelan, since deceased for which, Sathiaseelan replied that he had no money. P.W.1 noticed exchange of words between the two; the accused catching hold of the victims head and violently shaking it forward and backward. Then he broke the bottle and stabbed Sathiaseelan just below his left jaw resulting in a profusely bleeding injury. Before stabbing, the accused declared that only if Sathiaseelan is left alive he would torment him. P.W.2 and another person were also working at that time in the shop and all of them transported the injured to the Government Royapettah Hospital in an Autorickshaw. Then P.W.1 and the shop supervisor by name Ramadoss went to the police station, where a complaint was lodged, written personally by P.W.1. Ex.P.1 is the said complaint. P.W.1 was examined by the police. Then P.W.1 and the shop supervisor by name Ramadoss went to the police station, where a complaint was lodged, written personally by P.W.1. Ex.P.1 is the said complaint. P.W.1 was examined by the police. M.O.1 is the broken bottle used by the accused in inflicting the injury on the injured namely, Sathiaseelan, since deceased. P.W.2 would state that he went to visit one of his friends in the road in which the liquor shop was located. Not finding his friend there, P.W.2 called him over mobile and told that he would wait in the liquor shop in that road and proceeded towards the liquor shop. Since he often goes to that place he knows P.W.1 and others and therefore they were talking with them. He also noticed the accused and the deceased sitting near the shop and consuming liquor. As far as the occurrence proper is concerned, he would state that, at that time the accused wanted a sum of Rs.2/-from the deceased and when he said that he did not have money, the accused took possession of a bottle lying nearby; broke it and keeping it in his hand, violently shook the head of the victim by holding his tuft. The victim pleaded for mercy to spare him promising that he would not have any contact what so ever with the accused. For that the accused replied that he can do so only if he is left alive and when the victim tried to wriggle out of the clutch, the accused with the broken bottle in his hand stabbed him in the neck and then he ran away. His rest of the evidence is more or less on the same lines as spoken to by P.W.1. P.W.4 is residing close to the road where the liquor shop is situated. He was passing the liquor shop on the afternoon of 23. 2005 where he noticed the accused and the deceased quarrelling near the liquor shop. P.W.4 is acquainted with the accused and the deceased as they used to visit the shop often. P.W.4 is having a non-vegetarian stall in the Dams Road - a nearby road. His rest of the evidence on the occurrence proper is more or less on the same lines as spoken to by P.Ws.1 and 2. P.W.4 is acquainted with the accused and the deceased as they used to visit the shop often. P.W.4 is having a non-vegetarian stall in the Dams Road - a nearby road. His rest of the evidence on the occurrence proper is more or less on the same lines as spoken to by P.Ws.1 and 2. In his evidence in cross P.W.4 had stated that he had come to know about the crime only after the death of the victim. 3. P.W.12 is the Sub Inspector of Police, before whom P.W.1 appeared at about 4.00 p.m on 23. 2005 and gave the complaint, which he registered as Ex.P.1 in Crime No.576 of 2005 under Section 302 I.P.C. Ex.P.10 is the printed First Information Report prepared by him. He sent the express records to the court as well as to the higher officials. P.W.16 is the investigating officer, who on receipt of Exs.P.1 and P.10 commenced the investigation. By reaching the crime scene at 4.15 p.m. on the same day, in the presence of P.W.7 and another, he prepared Ex.P.14, the Observation Mahazar and Ex.P.15, the rough sketch. From the crime scene, he recovered blood stained earth and sample earth under a Mahazar. Then he proceeded to the Government Hospital at Royapettah, where after examining Sathiaseelan, since deceased recovered his blood stained blue colour full sleeves shirt. Ex.P.16 is the Mahazar under which blood stained earth and sample earth were recovered from the crime scene. Ex.P.17 is the recovery mahazar for the blood stained shirt of the injured. P.W.16 examined further witnesses by recording their statements. He examined injured Sathiaseelan in the Government Hospital on 23. 2005 and recorded his statement, which is Ex.P.18. P.W.16 arrested the accused on 23. 2005 in the presence of P.W.8 and another and examined him. At that time, the accused gave a voluntary confession statement, the admissible portion of which is Ex.P.19. Pursuant to Ex.P.19, the broken bottle was recovered under Ex.P.20. P.W.7 witnessed the preparation of the Observation Mahazar and recovery of blood stained and sample earth from the crime scene as spoken to by P.W.16. Ex.P.5 is his admitted signature in the Observation Mahazar and Ex.P.7 is his admitted signature in the recovery mahazar for the blood stained earth and sample earth, which are M.Os.2 and 3. He also witnessed the recovery of M.O.4, the blood stained shirt. Ex.P.5 is his admitted signature in the Observation Mahazar and Ex.P.7 is his admitted signature in the recovery mahazar for the blood stained earth and sample earth, which are M.Os.2 and 3. He also witnessed the recovery of M.O.4, the blood stained shirt. P.W.8 witnessed the arrest of the accused; his examination and recording his statement leading to the recovery as spoken to by P.W.16. His signature in the confession statement of the accused and the recovery mahazars stand marked as Exs.P.8 and P.9. M.O.1 is the broken bottle recovered at the instance of the accused. 4. P.W.16 came to know that Sathiaseelan died at 6.45 a.m. on 23. 2005 and accordingly he altered the section of offence into one under Section 302 I.P.C. and prepared the altered express first information report Ex.P.21, which he sent to the court as well as to the higher officials. P.W.10 is the police constable, who carried the altered first information report to the court which he left in the court at 10.15 a.m. on 23. 2005. P.W.16 then proceeded to the Government Hospital and between 10.00 a.m. and 12.00 noon on that day, he conducted inquest over the dead body and prepared the inquest report Ex.P.22. During inquest P.W.16 examined various witnesses by recording their statements. P.W.16 sent the case properties to the court with a requisition to subject the same for chemical examination. P.W.3 is the expert attached to the laboratory, who examined the various objects received in his laboratory through court. Exs.P.2,P.3 and P.4 are the respective reports sent by him to the court. P.W.5 is the elder brother of the deceased. He is not an eye witness to the crime. He observed the dead body and then collected the dead body for cremation. P.W.6 is the mother of the deceased. She had also identified the dead body as that of her son and then collected the dead body for cremation. P.W.9 is the photographer, who photographed the crime scene as well as the dead body. M.O.5 series are the photographs and the negatives. P.W.16 sent a requisition to the hospital for conducting post-mortem. P.W.11 accordingly carried the requisition to the hospital for post-motem where he identified the dead body. After postmortem he handed over the dead body to the relatives. P.W.13 is the casualty medical officer before whom at 7.50 p.m. on 23. M.O.5 series are the photographs and the negatives. P.W.16 sent a requisition to the hospital for conducting post-mortem. P.W.11 accordingly carried the requisition to the hospital for post-motem where he identified the dead body. After postmortem he handed over the dead body to the relatives. P.W.13 is the casualty medical officer before whom at 7.50 p.m. on 23. 2005 the injured was taken by P.W.2 for treatment and P.W.13 was nformed by P.W.2 that a person, who was already in police custody had stabbed with a broken bottle and the occurrence place is Chindadripet Kareem Mohideen Sahib Street. Ex.P.11 is the Accident Register issued by P.W.13. P.W.14 is another casualty medical officer in the Government General Hospital, Chennai before whom at 6.00 p.m. on 29. 2005 the injured was brought in an Ambulance by the Ambulance driver and a male nursing attendant from the Government Royapettah Hospital for treatment P.W.14 was informed by them that the injured was brought to their hospital by unknown persons. He caused x-rays to be taken. Ex.P.12 is the Accident Register issued by him. 5. P.W.15 is the Doctor, who did post-mortem on the dead body on receipt of the requisition at 2.55 p.m. on 30.3.2005. During post-motem he found various symptoms as noted by him in Ex.P.13, the post-mortem report. The symptoms noted therein are as hereunder:- "Injuries:- Abrasion : Dark brown in colour. 1. 2.5 x0.5 cm over right side neck and it lies 6 cm below mid chin and 11 cm from suprasternal notch. 2. A sutured wound seen over left side of neck measuring 3 cm long with 3 sutures and it lies 6 cm. below left mastoid process. On removal the edges are irregular measuring 4 x 1 x 0.5 cm. The underlying vessels and nerves where found intact with surrounding stripped muscle contused. On further exploration:- Fracture dislocation of C-5 C6 vertibra with extensive contusion involving the pre and para vertebral muscles and surroundings soft tissue contused measuring 6 x 4 cm with circumferential contusion of spinal cord to a lengh of 3 cm seen at the level. 3. Two linear abrasion over front of left axillary region measuring 4 x 0.25 cm each. 4. 3 x 1 cm over aspect of lower 3rd of left fore arm. 5cm above the left wrist. 5. 1 x 1 cm over aspect of lower 3rd of left fore arm. 6. 3. Two linear abrasion over front of left axillary region measuring 4 x 0.25 cm each. 4. 3 x 1 cm over aspect of lower 3rd of left fore arm. 5cm above the left wrist. 5. 1 x 1 cm over aspect of lower 3rd of left fore arm. 6. 1 x 1 cm over left medial malleolus. 7. 2 x 1 cm over lower 3rd of inner aspect of right leg. 8. 0.5 x 5 cm over right medial malleolus. 9. 0.5 x 0.5 cm over front of lower 3rd of right leg. 10. 5 x 0.25 cm over outer aspect of lower 3rd of right leg. 11. 3 x 1 cm over inner aspect of right hand. 12. 0.5 x 0.5 cm over back of right shoulder. Heart: Normal in size. Chambers empty. Valve - normal. Coronaries -Patent. Athromatous plaques seen over root of aorta. Lungs: Cut section congested. Hyoid : Intact. Stomach : Normal. Stomach. empty. Cut section mucosa congested. Liver, Spleen Kidneys : cut section congested. Large intestines : Distended with gas. Bladder : Empty. Pelvis : Intact. Head : Scalp normal. Cranial vault - Intact. Dura membrane. Intact Brain Oedematous and congested. Cut section multiple petechial haemorrhages seen over white matter of both cerebral hemispheres. Base of Skull : Intact Spinal column : Intact" The Doctor opined that death is due to cervical spine injuries sustained and to an apparent eye the internal injury is not easily visible and the internal injury is possible if the head of a person is violently moved hither and thither. As an enclosure to Ex.P.23 letter, P.W.16 sent the case properties to the court. Exs.P.25 and P.26 are the other reports received from the laboratory. After completing all the legal formalities P.W.16 filed the final report against the accused under the section referred to above. 6. When the accused was questioned under Section 313 of the Code of Criminal Procedure, on the basis of the incriminating materials made available against him, he denied each and every circumstance put up against him as false and contrary to facts. Though he did not let in any oral evidence yet, he marked Ex.D.1 the death intimation, which shows that the date of admission in the hospital was on 23. 2005 at 5.45 p.m. and the victim died at 6.45 a.m. on 23. 2005. Though he did not let in any oral evidence yet, he marked Ex.D.1 the death intimation, which shows that the date of admission in the hospital was on 23. 2005 at 5.45 p.m. and the victim died at 6.45 a.m. on 23. 2005. Mr.S. Govindarajan, learned counsel for the appellant would argue that having regard to the evidence of P.W.14, the medical officer in the Government General Hospital at Chennai and the contents of Ex.P.12, it is clear that the identity of the assailant is definitely "unknown". If that is so, the evidence of P.Ws.1,2 and 4 as eye witnesses are open to a serious doubt. Assuming the evidence of P.Ws.1,2 and 4 deserve acceptance, even then their evidence undoubtedly show all the ingredients of Exception 4 to Section 300 of the Indian Penal Code. Then the learned counsel would attack Ex.P.18, the dying declaration on the ground that the medical evidence available in that case namely, P.W.13s evidence shows that injured Sathiaseelan was unconscious. We heard the learned Additional Public Prosecutor on the above points. 7. Let us now examine the merits of the prosecution case namely, whether the prosecution had established the involvement of the accused in the crime. P.W.1 is a salesmen in the liquor shop run by a Government of Tamil Nadu company. The occurrence is shown to have taken place when the accused and the deceased arrived there a little earlier and after purchasing the liquor started consuming just in front of the shop, Though P.W.1 would state that P.W.2 was also employed there, yet, P.W.2s evidence do not show that. But none the less P.W.2s evidence shows that he came to visit his friend in a nearby area and since he is not available in person, informing him over the mobile that he would be waiting in the liquor shop, he proceeded to the liquor shop. The evidence shows that as he used to go to that place very often, he knows P.W.1 and therefore he was talking with him, at which point of time he claims to have seen the occurrence. P.W.2s presence at the occurrence place cannot be doubted also because before P.W.13, the duty Doctor in the Government Hospital at Royapettah, P.W.2 alone took injured Sathiyaseelan at about 3.50 p.m. on 23. 2005 for treatment. P.W.2s presence at the occurrence place cannot be doubted also because before P.W.13, the duty Doctor in the Government Hospital at Royapettah, P.W.2 alone took injured Sathiyaseelan at about 3.50 p.m. on 23. 2005 for treatment. We went through the evidence of P.W.2 as well as the evidence of P.W.13 to find out whether P.W.2s presence at the crime scene can be doubted at all. Our answer is in favour of the State. Even in Ex.P.1 the name of P.W.2 is mentioned. Once we hold that the prosecution had established the presence of P.W.2, then we have to analyse the evidence of P.Ws.1 and 2 together. In addition to the evidence of P.Ws.1 and 2, we have the evidence of P.W.4 also. P.W.4s evidence shows that he is having a non-vegetarian stall in the nearby road and he knew both the accused and the deceased as his customers. We went through his evidence as well with care and caution. P.W.4s evidence cannot be believed as an eye witness since he had admitted in his evidence in cross that he came to know about the occurrence only after the death of the victim. Though P.Ws.1 and 2 had also been cross examined at length, yet we do not find any infirmity at all in their evidence which would discredit their evidence in chief regarding the occurrence proper. Therefore on the evidence of P.Ws.1 and 2 we hold that the prosecution had definitely established the involvement of the accused in the crime. 8. In addition to the evidence of P.Ws.1 and 2, we have Ex.P.18, the statement recorded by P.W.16 from the injured while he was alive and the said statement assumes the character of a dying declaration on the death of the maker. Ex.P.18 is in question - answer form and it has eight questions and eight answers. In answering question Nos.6 and 8 the victim had made it very clear that it is the accused and the accused alone, who stabbed him. A faint argument is advanced by the learned counsel for the appellant that Ex.P.18 cannot be believed at its face value in view of the evidence of P.W.13, the Doctor in the Government Hospital at Royapettah, who would state that when he examined the injured at 3.50 p.m. on 23. 2005 , the injured was unconscious. A faint argument is advanced by the learned counsel for the appellant that Ex.P.18 cannot be believed at its face value in view of the evidence of P.W.13, the Doctor in the Government Hospital at Royapettah, who would state that when he examined the injured at 3.50 p.m. on 23. 2005 , the injured was unconscious. It must be noticed that Ex.P.18 was recorded by P.W.16 at 5.00 a.m. on 23. 2005 and the victim himself died only on 23. 2005. The victim was examined in the Government General Hospital. P.W.14 is the Doctor doing duty in the Government General Hospital at Chennai. When he was cross examined by the defence, he categorically admitted that when he examined, the injured was fully conscious. Therefore it is not possible to accept the argument advanced by the learned counsel for the appellant that based on P.W.13s evidence, Ex.P.18 must be rejected on the ground that the injured would not have been in a position to talk at all as he was unconscious. In Ex.P.18 - as already stated -the victim had implicated the accused in the crime. Therefore in addition to the oral evidence of P.Ws.1 and 2, we have Ex.P.18, the dying declaration of the victim, which also establishes the involvement of the accused in the crime. There is medical evidence to show that the deceased died due to homicidal violence. 9. Let us now examine the question as to whether Exception 4 to Section 300 of the Indian Penal Code is attracted to the case on hand. In this regard, we note hereunder the materials available on record. "The accused and the deceased were consuming liquor; the accused asked the deceased to give him a sum of Rs.2/-; the deceased replied that he had no money; there was exchange of words between the two; the accused held the deceased by his head and shook it; the accused then broke the bottle and stabbed the victim below his left jaw." The above referred to material is available in the evidence of P.W.1. P.W.2 in addition to deposing the above referred to material, would state that the accused violently shook the head of the victim and at that time the victim pleaded that he must be spared stating that thereafter he would not even have any talk with him. P.W.2 in addition to deposing the above referred to material, would state that the accused violently shook the head of the victim and at that time the victim pleaded that he must be spared stating that thereafter he would not even have any talk with him. For that the accused replied that he can do so only if he is left alive and when the victim tried to wriggle out of the clutch, the accused with the broken bottle in his hand stabbed him in the neck. Would the above referred to material satisfy the ingredients of Exception 4 to Section 300 of the Indian Penal Code? A careful reading of Exception 4 to section 300 of the Indian Penal Code clearly shows that the act complained of must be shown to have been committed "without pre-meditation"; "in a sudden fight"; "in the heat of passion"; "upon a sudden quarrel"; "without the offender having taken undue advantage of"; or "acted in a cruel or unusual manner". From the materials available in this case, it is possible to conclude that there is absence of pre-meditation and the accused appear to have not taken any undue advantage or acted in a cruel or unusual manner. But still, the other three elements referred to above should be satisfied namely, "in a sudden fight"; "in the heat of passion" and "upon a sudden quarrel". "Fight", in our considered opinion, means a "physical fight". Such a physical fight must have triggered the passion of the people involved in the fight. When the passion reaches its peak, there should be a sudden quarrel and then the act should have been committed. The word "passion" itself means an emotional out-burst / uncontrollable out-burst. The Legislature has pre-fixed the word "passion" with the word "heat". Therefore in our considered opinion, every emotional out-burst by itself would not be sufficient unless the said emotional out-burst is shown to have reached its peak followed by a sudden quarrel. To reiterate, we state that all the above three elements must be satisfied, besides the other three elements already referred to above to attract Exception 4 to section 300 I.P.C. "Quarrel" as per Oxford Dictionary does contemplate an angry argument or disagreement. The word "fight" is defined to mean in the Oxford Dictionary as "taking part in a violent struggle involving physical force or weapons". The word "fight" is defined to mean in the Oxford Dictionary as "taking part in a violent struggle involving physical force or weapons". Therefore there must be a fight triggering the passion of the parties involved; such passion should reach its peak leading to a quarrel and then the act must have been committed. Unless these elements, in addition to the other three elements, which we have already referred to above, are satisfied (in this case we have found that the other three elements are satisfied), it is not possible to extend the benefit of Exception 4 to section 300 I.P.C to any convicted person. In the case on hand from the materials extracted above, though it is possible to hold that the accused had no pre-meditation; had not taken any undue advantage of the situation or he did not act cruelly, yet the remaining three elements of Exception 4 as referred to above are definitely not established. At the best, in this case, the materials would only show that under the influence of liquor there was a sundry quarrel which in our opinion cannot enable the court to give the benefit of Exception 4 to Section 300 of the Indian Penal Code. 10. Even then the question that still survives for consideration is whether the accused can be convicted for the offence under Section 302 I.P.C? Death is due to fracture/dislocation of C-5, C-6 vertebra with extensive contusion involving the pre and para vertebral muscles and surrounding soft tissues contused measuring 6 x 4 cm with circumferential contusion of spinal cord to a length of 3cm seen at the level. The medical evidence shows that such injury is possible if the head is violently shook by the assailant. As we have already noted only in the oral evidence it has come out that the accused violently shook the head of the victim. From that act namely, the accused violently shaking the head of the victim it is not possible to hold that the accused even in his dream would have thought that by such act he is likely to cause fracture of C5, C6 vertebra resulting in his death. Culpable homicide would be murder only when the accused does an act which is covered by any of the four clauses adumbrated in Section 300 I.P.C. In this case clauses "firstly" to "fourthly" are not made out at all. Culpable homicide would be murder only when the accused does an act which is covered by any of the four clauses adumbrated in Section 300 I.P.C. In this case clauses "firstly" to "fourthly" are not made out at all. We reiterate, by shaking the head of the victim violently the accused would not have even dreamt or would not have even foreseen that such act would result in the death of the victim. Therefore we are inclined to set aside the conviction of the appellant under Section 302 I.P.C. and instead hold him guilty under Section 304(ii) I.P.C. for which he would stand sentenced to undergo four years rigorous imprisonment. The period of sentence already undergone by the appellant, would be set off against the sentence imposed on him by us now.