JUDGMENT : The above appeal is filed by the accused in SC No.262 of 2003 on the file of Sessions Court, Kottayam. The appellant herein was chargesheeted by the Vakathanom Police alleging offence punishable under Section 302 IPC. 2. The prosecution case in brief is that, on 30.3.2001 at about 9.30 p.m, the deceased Sunniappan came to the Pongamthanam Junction to buy bread for his breakfast. At that time accused also came to the place to collect money from the person from whom it was due. The accused met PW6 near the waiting shed. PW6 wanted the accused to take a cheque which he had and pay cash for it. The accused replied that, he did not have sufficient money with him. The deceased who was coming along the way overheard the conversation between PW6 and the accused and opined that the accused may not levy exorbitant interest from poor people like PW6. This intervention of the deceased was not liked by the accused. There was an exchange of words between them followed by a scuffle. Others present at the place separated them and took them away. But the accused uttered very filthy, abusive and provocative words attributing the mother and wife of the deceased. It provoked the deceased and he went towards the accused. No sooner than he reached near the accused, the prosecution allegation is that the accused took out MO1 knife, from his bag MO2 and inflicted an injury on the left side of the chest of the deceased. The deceased staggered for a little distance and fell on the ground. All along he was crying that the accused had stabbed him. He was wriggling in pain. Few people picked him up from the ground. PW3, the driver of a stage carriage named 'Vijayalakshmi Travels' who had parked his vehicle near the place of incident, agreed to take the deceased to the hospital. In the bus, the deceased was taken to the hospital along with a few others. On the way, they happened to come across a police jeep and they conveyed the news to the police officers. Thereafter, the deceased was taken in the jeep to the Medical College Hospital at Kottayam. Immediately on reaching the hospital, PW10 the doctor attached to the Medical College Hopsital attended to the deceased and prepared Ext P5 wound certificate. On the way, they happened to come across a police jeep and they conveyed the news to the police officers. Thereafter, the deceased was taken in the jeep to the Medical College Hospital at Kottayam. Immediately on reaching the hospital, PW10 the doctor attached to the Medical College Hopsital attended to the deceased and prepared Ext P5 wound certificate. While undergoing treatment at the Medical College Hospital, in the early hours of 31.3.2001, the deceased breathed his last. By 7 a.m on 31.3.2001 PW1 went to the Vakathanam Police Station and furnished Ext P1 First Information Statement. PW14, the Sub Inspector of Police recorded the same. On the basis of Ext P1 statement, he registered Crime No.35/2001 of Vakathanam Police Station under Ext P1(a) F.I.R for the offence punishable under Section 302 of the Indian Penal Code. The investigation was taken over by PW15, the Circle Inspector of Police. He went to the Medical College Hospital, conducted inquest over the body of the deceased and prepared Ext P2 Inquest report. The body was sent for postmortem. PW11, the Forensic Surgeon attached to the Medical College Hospital, conducted autopsy on the body of the deceased and prepared Ext P6 postmortem certificate. In the meanwhile PW15 visited the scene of occurrence and prepared Ext P3 scene mahazar. He recorded statements of witnesses. He had occasion to arrest the accused on 4.4.2001 at 3.30 p.m. Based on Ext P4(a) confession statement furnished by the accused MO1 knife was recovered as per Ext P4 mahazar. MO2 bag and the cloths worn by the accused were seized as per Ext P8 mahazar. The materials collected were forwarded for chemical examination through Court. Ext P10 is the FSL report. PW15 completed the investigation and filed charge against the accused. 3. The Judicial First Class Magistrate Court, Changanacherry, took cognizance of the offence. After completing the formalities as per Criminal Procedure Code, the learned Magistrate committed the case to the Sessions Court. The Sessions Court framed charge u/s.302 IPC against the accused in accordance with law. 4. To substantiate the case PWs 1 to 15 were examined by the prosecution. Exts P1 to P11 were marked. MO1 and MO2 are identified as material objects. Exts D1 to D4 are marked as the documents of the defence. The Sessions Court framed charge u/s.302 IPC against the accused in accordance with law. 4. To substantiate the case PWs 1 to 15 were examined by the prosecution. Exts P1 to P11 were marked. MO1 and MO2 are identified as material objects. Exts D1 to D4 are marked as the documents of the defence. After the prosecution evidence was closed the accused was questioned u/s.313 Cr.P.C. He denied the incriminating circumstances brought out in the evidence. He filed a statement in his defence. In the statement so filed, the accused would claim that the deceased was in an inebriated stage and had picked up unnecessary quarrel with him. The deceased tried to attack the accused but was prevented by the timely intervention of a few persons. The deceased was being taken to a shop of Mathukutty. Then he extricated himself and rushed towards the accused with a stone in his hand. The deceased caught hold of the neck and collar of the accused and tried to hit him with stone. The accused would end up by saying, he somehow managed to escape. 5. The court below found that the accused cannot be acquitted u/s.232 Cr.P.C. The accused was asked to enter on his defence. No evidence was adduced by the defence. 6. After going through the evidence and documents, the trial court found that the accused has not committed the offence u/s. 302 IPC. But the Sessions Court found that the accused is guilty of having committed the offence punishable u/s 304 Part II of IPC. He is sentenced to undergo imprisonment for five years and to pay fine of Rs.15,000/-(Rupees Fifteen thousand only),in default of payment of fine, the accused is directed to suffer simple imprisonment for a further period of one year. If the fine amount is realised, the trial court ordered to pay an amount of Rs.10,000/-to the legal heirs of deceased. Aggrieved by the conviction and sentence this appeal is filed. 7. Heard the learned counsel for the appellant and the learned Public Prosecutor. 8. The counsel for the appellant submitted that, even if the entire allegations are accepted, it is clear that the accused was exercising his private defence. Aggrieved by the conviction and sentence this appeal is filed. 7. Heard the learned counsel for the appellant and the learned Public Prosecutor. 8. The counsel for the appellant submitted that, even if the entire allegations are accepted, it is clear that the accused was exercising his private defence. He also submitted that the deceased provoked him and he also contended that, there was an apprehension of death/grievous hurt on the part of the accused from the side of the deceased and that is why he attacked the deceased. According to the counsel, the admitted prosecution case is that the deceased rushed towards him and used filthy languages. The counsel also submitted that, there was an exchange of words between the deceased and accused and thereafter the deceased rushed towards the accused. According to the counsel, there was a reasonable apprehension of death or grievous hurt to the accused from the side of the deceased and that is why he exercised his right of private defence. From the circumstances of the case, it is clear that the case of the accused is more probable, contended by the counsel. 9. The Public Prosecutor submitted that the Sessions Court considered all the evidence meticulously and thereafter found that the accused committed the offence u/s.304 Part II IPC. Therefore, there is nothing to interfere with the conviction and sentence passed by the lower court. 10. The first point to be decided is what is the cause of the death of Kurian @ Sunniappan. It is also to be decided, whether the prosecution established that, the fatal injury was inflicted by the accused on the deceased. The other question is that, whether the evidence adduced by the prosecution in the case amounts to an offence u/s.304 Part II IPC and whether the sentence imposed by the lower court is correct. It is an admitted case that Sunniappan, the deceased died because of the injury sustained to him from the accused. PW11 doctor, who conducted the postmortem of deceased Sunniappan clearly stated that injury to the chest of the deceased was fatal and that is sufficient in the ordinary course of nature to cause the death of the person concerned. PW10 is the first doctor who examined the deceased. PW11 doctor, who conducted the postmortem of deceased Sunniappan clearly stated that injury to the chest of the deceased was fatal and that is sufficient in the ordinary course of nature to cause the death of the person concerned. PW10 is the first doctor who examined the deceased. PW10 and PW11 are of the opinion that the injury No.1 in Ext P5 wound certificate and injury No.1 in Ext P6 postmortem certificate can be caused by the use of a weapon like MO1. From the oral evidence and medical evidence it is clear that Sunniappan had died due to the injuries sustained to him on the chest and that it was an inflicted wound. It is an admitted case that the accused inflicted the fatal injury. 11. The next question to be decided is whether the prosecution evidence make out an offence u/s 304 Part II IPC. The prosecution case is that on 30.3.2001 at about 9.30 p.m at the Pongamthanam Junction, near the waiting shed therein, while the accused and PW6 were engaged in a conversation about the money transaction, the deceased had intervened. The intervention of the deceased was not to the liking of the accused and there ensued an exchange of words and scuffle. Both of them were pacified and separated by persons who are present there and the deceased was being taken to the shop of one Mathukutty. At that time, the prosecution allegation is that the accused continued to shower filthy and abusive words provoking the deceased, who cautioned him not to do so and he moved towards him. When the deceased reached near the accused, the accused is alleged to have stabbed him with MO1 knife. 12. The prosecution is trying to establish the case through the evidence of PW1 to 6, 9, 15 and Exts P1, P4(a) and P4. PW1 to PW4 and 6 are the occurrence witnesses. PW5 was examined to establish a dying declaration of the deceased. PW9 is the witness to the recovery of MO1 knife based on the confession statement of the accused. PW15 is the Investigating Officer. Ext P1 is the FIR and Ext P4(a) is the portion of the statement of the accused which led to the recovery. Ext P4 is the seizure mahazar of MO1. PW7 is only an inquest witness and PW8 is the scene mahazar. PW15 is the Investigating Officer. Ext P1 is the FIR and Ext P4(a) is the portion of the statement of the accused which led to the recovery. Ext P4 is the seizure mahazar of MO1. PW7 is only an inquest witness and PW8 is the scene mahazar. These are the main prosecution witnesses examined to prove the case. 13. I have perused the deposition of PWs 1 to 4 and 6. The evidence of PWs 1 to 4 and 6 is convincing and is believable. All of them are familiar with the accused and deceased. All of them speak about the incident in one tone. Ext P1 was laid by PW1 at 7 a.m on 31.3.2001. All the occurrence witnesses are definite that there was sufficient light in the place of incident. Some of the contradictions marked before the trial court were projected by the counsel for the appellant. As rightly pointed out by the learned Sessions Judge, those contradictions are not material in the facts and circumstances of this case because the crux of the prosecution case is deposed by the occurrence witnesses. Regarding the actual stabbing of the deceased by the accused, there is evidence of PWs 1 to 4 and 6. Their evidence is clear and convincing. All of them vouch that they had occasioned to scene the incident. It is true that the learned Sessions Judge discarded the recovery evidence based on Ext P4(a) confession statement of the accused observing that the statement does not qualify to be admissible u/s 27 of the Evidence Act, because the authorship of concealment was not disclosed. But, rightly, the learned Sessions Judge taken note of the conduct of the accused which lead the police to the place of concealment and handing over the knife to PW15, as a relevant factor u/s.8 of the Evidence Act. 14. Therefore, it is clear that the evidence of PWs 1 to 4 and 6 and the evidence of PW10 doctor along with Exts P1 and P5, there is no hesitation to conclude that the fatal injury which led to the death of deceased was in fact inflicted by the accused himself. 15. Now the contention of the accused regarding his exercise of private defence is to be considered. It is to be noted that the deceased got himself intervened in a money transaction between the accused and PW6. 15. Now the contention of the accused regarding his exercise of private defence is to be considered. It is to be noted that the deceased got himself intervened in a money transaction between the accused and PW6. This is the first part in this case. The evidence is clear to the effect that PW6 had a cheque with him for a sum of Rs.2,000/-which he wanted to encash. He requested the accused to provide him the cash. The evidence is also clear to the fact that, the accused replied that he did not have sufficient money with him. The testimony given by PWs 1, 2, 4 and 6 revealed that the deceased had asked the accused not to levy exorbitant interest. The evidence of these witnesses is clear to the effect that there was an exchange of words between them and in fact PW6 would say that even a scuffle had ensued between the accused and PW6. Thereafter, both of them were separated and led away. Thereafter, the accused without any reason whatsoever continued to use abuses and obscene words against the deceased implicating his mother and wife. The words spoken by the accused are so filthy and disturbing to a family person and any family man may react to the same. Therefore, there was a normal reaction from the deceased. The reaction is to the effect that, the deceased moved towards the accused. There is no evidence to show that the deceased was having any weapon at that time. Of course, the defence has got a case that the deceased rushed towards the accused with a stone on his hand. Absolutely, there is no evidence to substantiate this defence case. The only evidence is that when the deceased heard the filthy language used by the accused attributing allegations against his wife and mother, he reacted and moved towards the accused. At that time, the accused took a knife and attacked the deceased. The contention of the accused is that the deceased rushed towards the accused, it is only reasonable that, the accused could have entertained a reasonable apprehension of some harm about to be caused to him and that entitled him to act in the manner he did. Therefore, the accused contended that he is entitled the protection u/s 100 of the IPC. 16. Therefore, the accused contended that he is entitled the protection u/s 100 of the IPC. 16. It is true that PWs 1 to 4 and 6 tried to play down the acts of the deceased. These witnesses also say about the exchange of words that took place between the deceased and the accused. After the first incident, the accused and the deceased were separated. Thereafter, the incident started because of the provocation from the side of the accused. He used filthy languages against the wife and mother of the deceased. Therefore, there are two parts in the incident. The earlier part of the incident came to an end with the accused and deceased being separated. Thereafter, the accused has no business to continue to follow the deceased and abuse him. The words used by the accused against the wife and mother is really provoking to any family person. Therefore, the reaction of the deceased to rush towards the accused will not cause a reasonable apprehension of any death or any grievous hurt to the accused. Having provoked the deceased uttering abusive words, and when there was normal human reaction from the deceased, the accused cannot contend that, he is protected by the plea of private defence. There is nothing to indicate that the act of the deceased was such that it could have caused a reasonable apprehension in the mind of the accused falling within the scope of Section 100 IPC. To justify a plea u/s 100 of the IPC, any of the seven descriptions mentioned in the Section is to be established. It is better to quote Section 100 IPC and its seven descriptions:- Sec.100. To justify a plea u/s 100 of the IPC, any of the seven descriptions mentioned in the Section is to be established. It is better to quote Section 100 IPC and its seven descriptions:- Sec.100. When the right of private defence of the body extends to causing death.-The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:- First.-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly.-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly.-An assault with the intention of committing rape; Fourthly.-An assault with the intention of gratifying unnatural lust; Fifthly.-An assault with the intention of kidnapping or abducting; Sixthly.-An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. Seventhly.-An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act. 17. Applying the above Section, it is evident that the plea is not available to the accused in this case. There is clear evidence in this case to show that the deceased had occasioned to return to the accused only due to the provocation given by the accused. It therefore, could be said that the encounter was brought about by the act of accused himself. Apart from the above fact, there was no reasonable apprehension of threat to life or apprehension of grievous hurt to the body of the accused by the act committed by the deceased. Therefore, it could not be said that accused had acted in good faith presuming himself to be justified in law to act in the manner which he did. A consideration of the evidence in the case leads to a conclusion that the plea of private defence is not available to the accused at all. 18. Therefore, it could not be said that accused had acted in good faith presuming himself to be justified in law to act in the manner which he did. A consideration of the evidence in the case leads to a conclusion that the plea of private defence is not available to the accused at all. 18. Then the question to be considered is whether in this case an offence u/s 304 Part II IPC is made out as held by the learned Sessions Judge. Section 304 IPC is extracted here under: 304. Punishment for culpable homicide not amounting to murder:-Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 19. To attract the offence u/s 304 Part II IPC, the act of the accused should be with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. Admittedly, the action of the accused is not a pre-meditated one. Everything happened within a short span of time. Even though I mentioned earlier that the incident has got two parts, everything happened within a short span of time. It was such a sudden quarrel and spontaneous Act. The incident started between PW6 and the accused. Thereafter, the deceased was interfering in it. There is no evidence to show that accused had previous enmity with the deceased. The accused had no knowledge that the deceased will be there at the place of occurrence and hence he reached the place. Therefore, as held by the learned Sessions Judge, the act committed by the accused does not fall under any of the 4 clauses made mentioned in Section 300 IPC. The accused had no knowledge that the deceased will be there at the place of occurrence and hence he reached the place. Therefore, as held by the learned Sessions Judge, the act committed by the accused does not fall under any of the 4 clauses made mentioned in Section 300 IPC. Therefore, as rightly found by the learned Sessions Judge, the offence of murder is not made out. 20. It is proved from the evidence that the accused was having a dangerous weapon. Evidence of PWs 10 and 11 are clear to the effect that injury caused to the vital part of the body and it was a fatal injury. It was caused with a very dangerous weapon. In such situation it can be safely concluded that the accused action was with the knowledge that it is likely to cause the death. In such circumstances, the offence u/s 304 Part II IPC is made out. Therefore, I think the findings of the trial court that the accused committed the offence u/s 304 Part II IPC is correct and there is nothing to interfere with that. Hence, the conviction of the appellant u/s 304 Part II IPC is confirmed. 21. Now turn to the sentence imposed by the trial court. The trial court imposed rigorous imprisonment for 5 years and also to pay a fine of Rs.15,000/-. In default of payment of fine, the appellant is directed to suffer simple imprisonment for a further period of one year. 22. When this matter came up before another learned Judge (Justice P.Ubaid), the counsel for the appellant made a submission that there was a civil suit for realisation of damages from the appellant in connection with the same incident and there was a compromise between the parties and the parties have agreed for a total amount of Rs.7 lakhs out of which Rs.2 lakhs was already paid. The order dated 12.12.2018 of the learned Judge is extracted here under: “It is submitted that there was a civil suit for realisation of damages from the appellant, filed by the legal heirs of the deceased, and that the parties have come to terms on the amount before this Court, in the appeal brought against the decree passed by the trial court in the said suit. The appellate decree was shown to me, which shows that the parties have agreed for a total amount of Rs.7,00,000/-, out of which, Rs.2,00,000/-has already been deposited in Court, and the balance amount was payable in two instalments. The share of the minor was ordered to be deposited. If at all any modification in sentence is required in view of the satisfaction of the civil decree, in case, the conviction is liable to be confirmed, the court wants to know, whether the decree has actually been satisfied. The learned counsel seeks a short time to produce documents to show payment of money in satisfaction of the decree. Post on 20.12.2018.” 23. Based on the above order some documents are produced by the appellant regarding the payment of money. In the above order, this Court observed that, if the amount is paid and in case conviction is confirmed and thereafter while considering the correctness of sentence, the payment of damages also a relevant factor. 24. Considering the fact that the damage suit filed by the legal heirs of the deceased is compromised and an amount of Rs.7 lakh is paid by the accused to the legal heirs, that also can be considered while deciding the sentence in this case. But the accused can't be exhonerated from undergoing sentence, once the conviction is confirmed in grievous offences, simply because, the damage suit filed by the victim/legal heirs of victim are compromised. This can be taken as one of the circumstance for reducing the substantive sentence. In this case the incident happened on 30.3.2001. Now almost 19 years lapsed. The appellant paid the agreed amount to the legal heirs of the deceased as damages. Considering the entire facts and circumstances of this case, I think the substantive sentence of imprisonment imposed can be reduced to two years instead of five years imposed by the lower court. Hence this appeal is allowed in part on following terms. (1) The conviction u/s 304 Part II IPC is confirmed. (2) The substantive sentence of imprisonment is modified and the appellant is directed to undergo rigorous imprisonment for two years instead of 5 years awarded by the trial court. (3) The fine imposed by the lower court is confirmed.