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2025 DIGILAW 57 (KER)

Syamkumar @ Saji Viswamithran v. State of Kerala

2025-01-14

P.V.BALAKRISHNAN

body2025
J U D G M E N T Raja Vijayaraghavan, J. This appeal is preferred by the sole accused in S.C.No. 604 of 2012 on the file of the Additional Sessions Judge-II, Pathanamthitta, challenging the finding of guilt, conviction, and sentence passed by the learned Sessions Judge. 2. The appellant, a man aged 24 years of age, was charged for having committed offence punishable under Sections 302, and 447 of the IPC. By the impugned judgment dated 20.06.2018, he was found guilty under Section 302 of the IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 1 lakh with a default clause. The Prosecution Case 3. The deceased, Shibumon, was the son of one Sivaraman (PW8) and the elder brother of Shiju (PW7). The accused, Syamkumar @ Saji, is the maternal cousin of the deceased, being the son of the deceased's mother's sister. Sivaraman and PW3 had built a shed on a piece of property, where they were carrying out agricultural activities. On 07.04.2012, Suneesh (PW1) and the deceased were sitting in the shop of one Kalathil Sunil. The prosecution alleges that the accused called the deceased on his phone and invited him to the agricultural land, where PW3 and PW7 were engaged in guarding the crops from pests and animals. According to the prosecution, on receiving the call, the deceased along with PW1 and Murukesan (PW2) went to the shed. On the southeastern side of the shed, a bonfire was burning to keep wild animals at bay. There was also a shed, which was built by Sivaraman and PW3, where the deceased, the accused, and their friends sat and started playing cards. In the midst of the game, an altercation ensued between the accused and the deceased, as the accused felt that the deceased had tried to cheat in order to win the game. There was a wordy altercation between the accused and the deceased, and PWs 1 to 3, as well as PW7, had to intervene and separate them. After the incident, which occurred at about 9:00 P.M., the deceased stood up and decided to leave. He walked towards the eastern pathway. It is alleged that the accused, who was standing on the western side near the shed, abruptly went toward Shibu, who was walking, and took out a knife and inflicted a stab injury on his lower abdomen. After the incident, which occurred at about 9:00 P.M., the deceased stood up and decided to leave. He walked towards the eastern pathway. It is alleged that the accused, who was standing on the western side near the shed, abruptly went toward Shibu, who was walking, and took out a knife and inflicted a stab injury on his lower abdomen. After inflicting the injury, the accused took to his heels and disappeared into the darkness. Upon receiving the stab injury, the deceased clutched his abdomen with his palms and cried out. When he removed his palms, he fell to the ground. PW2 and PW3 took off their kailies and tied them around the injury. They then summoned the jeep driven by PW4 and rushed the injured to the hospital. The Doctor, after examining the injured, declared him dead. Registration of Crime and Investigation 4. On 08/04/2012, 00.30 hrs. PW1 lodged the First Information Statement to PW17 who then was the Sub Inspector of the Thanithode Police Station. Based on the said information, Crime No. 40 of 2012 of Thannithodu Police Station was registered under section 302 of the IPC. The investigation was taken over by PW20, C.I. of Police, Konni Police Station on 08.04.2012. He conducted Ext.P2 inquest over the dead body of Shibu. Two saffron kailies which were found on the body were seized. After the conduct of the inquest, the body was handed over for autopsy. Ext.P4 Scene Mahazar was prepared and a yellow thread as well as a pair of sandals which were found at the scene of crime were seized. MO1 shirt of the injured, which was lying at the scene of the crime, was seized as per Ext.P6 Mahazar. He stated that the accused could be arrested only on 22.04.2012 at 7:30 p.m. After effecting arrest, MO5 shirt, which was worn by the accused at the time of the incident was seized. Based on the disclosure statement furnished by the accused, MO2 knife was seized from the house of one Kunjumol (PW10), a near relative of the deceased, as per Ext.P5 Mahazar. Though in the FIR, only Section 302 of the IPC was incorporated, in the course of the investigation, as it was found that the accused had trespassed through the property of Sivaraman, Section 447 of the IPC was also incorporated. 5. Though in the FIR, only Section 302 of the IPC was incorporated, in the course of the investigation, as it was found that the accused had trespassed through the property of Sivaraman, Section 447 of the IPC was also incorporated. 5. After the completion of the investigation, the final report was laid before the Judicial First Class Magistrate Court-II, Pathanamthitta. Committal proceedings were initiated and after complying with the formalities, the case was committed to the Court of Sessions. The case was then made over to the Additional Sessions Court. On the appearance of the accused, the charge was read over after hearing the prosecution as well as the defence. The accused pleaded not guilty to the charge and claimed that he be tried in accordance with law. Evidence Tendered: 6. The prosecution examined PWs 1 to 20 and through them, Exts. P1 to P19(a) were exhibited and marked. MOs 1 to 9 were produced and identified. After the close of the prosecution evidence, incriminating materials arising from the prosecution evidence were put to the accused. He denied the incriminating materials. In his statement under Section 313 of the Cr.P.C., he stated that he was on inimical terms with Shibu. According to him, he became aware of the death of the deceased when he was in his house. It was Sivaraman, the father of the deceased, who had told him that he was the one who had killed Shibu. He stated that much prior to his arrest, he was taken to the Police Station and was released after questioning. Later, he was again taken into custody. He denied that he had committed the crime as alleged by the prosecution. He also contended that the President of the Local Panchayat had some animosity towards him, and it was at this instance that the false case was brought up. He denied that he had entrusted the offending knife with Kunjumol (PW10). The sentence imposed: 7. The learned Sessions Court found the accused guilty and convicted and sentenced to undergo imprisonment for life and pay a fine of Rs.1,00,000/- with a default sentence to undergo rigorous imprisonment for a period of 6 months under section 302 IPC. Contentions of the appellant: 8. The sentence imposed: 7. The learned Sessions Court found the accused guilty and convicted and sentenced to undergo imprisonment for life and pay a fine of Rs.1,00,000/- with a default sentence to undergo rigorous imprisonment for a period of 6 months under section 302 IPC. Contentions of the appellant: 8. Smt. Jasmine V. H., the learned counsel appearing for the appellant, submitted that a proper evaluation of the evidence tendered by the prosecution witnesses would reveal discrepancies in their testimony on material particulars. According to the learned counsel, PW7 is the younger brother of the deceased and PWs 1 to 3 are his close friends. She stated that they are interested witnesses, and no reliance should be placed on the evidence let in by them. She pointed out that when the officer who had registered the crime was examined, he stated in unmistakable terms that, on the same day at about 9:30 p.m., he had received information that Shibu had died consequent to the injuries sustained by him. If this information had been credible, the crime should have been registered immediately. However, the Police Officer waited until PWs 1, 2, 3, and 7 returned from the hospital, and the crime was registered much after midnight. She would also refer to Ext.P9 FIR and it is pointed out that the FIR had reached the Court only on 09.04.2012, about 35 hours after the time of registration of the crime. According to the learned counsel, the long delay would show that the true facts were not placed before the Court and that the Investigation Agency had ample time to manipulate the incident and place the authorship of the murder on the accused. It is pointed out by the learned counsel that the prosecution allegation is that the incident had occurred in the dead of night, i.e., at about 9:00 p.m. on 07.04.2012. As per the scene plan as well as the Mahazar prepared, the prosecution has no case that there was presence of light in and around the crime scene. On the eastern side of the place of occurrence, there was a rubber plantation, and on the western side, there was a shed. Except for a bonfire set up to scare animals, there is no evidence of sufficient lighting in the vicinity to ensure that the witnesses had a chance to see the occurrence as alleged by them. On the eastern side of the place of occurrence, there was a rubber plantation, and on the western side, there was a shed. Except for a bonfire set up to scare animals, there is no evidence of sufficient lighting in the vicinity to ensure that the witnesses had a chance to see the occurrence as alleged by them. It is pointed out by the learned counsel that though PW2 stated that he had a torch in his possession and that he had seen the incident using the light from the torch, the witnesses on the other hand had stated that it was from the light emanating from the fire put up, they had seen the incident. According to the learned counsel, since there is no consistent version with regard to the presence of light at the scene of the crime, it has to be taken that the prosecution witnesses had no chance to see the occurrence which had taken place about 16 meters from the eastern side of the shed, where they had sat. It is further submitted that PWs 1 to 3 and 7, are close friends and relatives of the deceased, and it cannot be believed that the accused, could have inflicted such an injury on Shibu's body in their presence. The learned counsel would then point out that PW10 is one Kunjumol, who claims that she is a near relative of the accused, and PW12 is her son-in-law. The recovery of the alleged weapon of offence was allegedly made based on the disclosure statement given by the accused. However, both PW10 and PW12 in the evidence before the Court, stated that the accused was not present when the recovery was effected by the Officer. It is also stated that the evidence of PW12 would show that the police had entered the house at midnight, and had demanded that the knife be handed over. No reliance can be placed on the evidence let in by the said witnesses. Reliance is also placed on the observations made by Apex Court in Subramanya v. State of Karnataka, [ (2023) 11 SCC 255 ] and it is submitted that the evidence of recovery cannot be believed as the officer effecting the recovery failed to follow the procedure. No reliance can be placed on the evidence let in by the said witnesses. Reliance is also placed on the observations made by Apex Court in Subramanya v. State of Karnataka, [ (2023) 11 SCC 255 ] and it is submitted that the evidence of recovery cannot be believed as the officer effecting the recovery failed to follow the procedure. The learned counsel submitted that the failure of the investigating officer to register the crime at 9:30 p.m. would falsify the entire case set up by the prosecution. She would also submit that the investigation is totally flawed, and based on it, it would be unjust to sentence the accused to life imprisonment. Submissions of the learned Public Prosecutor: 9. In response, it is submitted by Sri. T.R. Renjith, the learned Public Prosecutor that the contention of the learned counsel that there is a long delay in setting the law in motion cannot be countenanced. The learned counsel would refer to the observations made by the Apex Court in Balram Singh & Anr. vs State Of Punjab , AIR 2003 SC 2213 and it is argued that some element of delay in registering the FIR would not be enough to throw out the prosecution case in its entirety. He would point out that the contradictions that were brought out are minor contradictions that would have no effect whatsoever. Referring to Ext.P1 FI statement, as well as the evidence of PWs 1 to 4 and 7, it is argued that the prosecution witnesses had a very consistent version and therefore there is no reason to doubt their version. Insofar as the presence of light is concerned, he would point out that all the witnesses had consistently stated that the fire burning on the eastern side of the shed was sufficient to ensure that there was clear visibility at the scene of the crime. Furthermore, the incident had occurred just about 20 feet to the east of the shed and all the persons were known to each other. 10. We have considered the submissions advanced and have gone through the records. Whether the death of Shibumon is homicidal? 11. In order to prove that the death of Shibu was a case of homicide, the prosecution has examined PW18, Dr. Rajeev M., who conducted the post-mortem examination. 10. We have considered the submissions advanced and have gone through the records. Whether the death of Shibumon is homicidal? 11. In order to prove that the death of Shibu was a case of homicide, the prosecution has examined PW18, Dr. Rajeev M., who conducted the post-mortem examination. In Ext.P10 Postmortem Certificate, the Doctor has noted an incised penetrative wound 2.5x1.5 cm obliquely placed on the left side of the abdomen, with its lower, outer sharply cut end 5.5 cm outer to midline and 6 cm above the groin. On examination, he stated that it entered the abdominal cavity and ended by partially cutting the left common iliac vein. The track of the wound was directed backward, upwards and to the right and had a minimum depth of 11 cm. Coils of the small intestine were seen protruding through the wound. He has also noted three other abrasions on the body of the deceased. As to the cause of death, the Doctor has opined that the cause of death is due to the stab injury sustained on the abdomen. He had also opined that injury No.1 is sufficient in the ordinary course of nature to cause death. In view of the above evidence let in by the prosecution, there cannot be any doubt that the death of Shibu was a case of homicide. Evidence of prime prosecution witnesses: 12. PW1 is one Suneesh. He stated that he is having close acquaintance with the deceased. On 07.04.2012, at about 9:00 p.m., the incident which led to the death of Shibu had occurred. He stated that he along with his friend Murukesan and the deceased were sitting in the shop room of one Kalathil Sunil. At about 5:30 pm., the accused called Shibumon over the phone and asked him to come to the shed. Upon receiving the call, PWs 1 and 2, as well as the deceased, went to the shed, where PW3, PW7, and the accused were present. They played cards for some time. While they were playing, an altercation occurred between the accused and the deceased, with the accused claiming that the deceased had cheated while playing the game. PWs 1 to 4 separated the accused and the deceased who were about to engage in a fisticuff. Immediately thereafter, the deceased stood up to go back home. They played cards for some time. While they were playing, an altercation occurred between the accused and the deceased, with the accused claiming that the deceased had cheated while playing the game. PWs 1 to 4 separated the accused and the deceased who were about to engage in a fisticuff. Immediately thereafter, the deceased stood up to go back home. When he walked towards the east, the accused followed him and after coming to his front, abruptly inflicted an injury with a knife. The injury was inflicted on the lower abdomen. Immediately after inflicting the said injury, the accused ran off towards the rubber plantation which was nearby, and into the dark. PW2 took off his dhoti and tied it around the injured part of Shibu. All of them lifted the deceased and took him to the house of one Rajendran and gave the deceased some water to drink. The deceased vomited. Immediately thereafter, they called Sivaraman (PW8), the father of the deceased, and informed him about the incident. Thereafter, they called the Jeep of one Vinu Achayan and he was taken to the General Hospital Pathanamthitta. The Doctor examined the deceased and pronounced him dead. He stated that the weapon of offence is an ‘S’ shaped knife. He also stated that they were able to see the incident from the light emanating from the bonfire and also from the torch which was held in the possession of Murukeshan. After returning from the hospital, they went to the Police Station and gave Ext.P1 Statement. After the arrest of the accused on 23.04.2012, he was summoned to the Police Station and he identified the accused, the weapon as well as the clothes worn by the accused and the deceased. In cross-examination, it was brought out that the accused and the deceased were near relatives. It was also brought out that the families of both the accused and the deceased were not on good terms. Though a question was put as to who had enlightened the bonfire, the witness had answered that he was not aware. However, he stated that the bonfire was burning even when they were there. In cross-examination, it was brought out that they had played four or five games and had played for more than an hour. However, he stated that there was no exchange of blows and that they did not abuse each other. However, he stated that the bonfire was burning even when they were there. In cross-examination, it was brought out that they had played four or five games and had played for more than an hour. However, he stated that there was no exchange of blows and that they did not abuse each other. He also stated that there was a kerosene lamp in the shed. He clarified that all the persons who had assembled in the shed were known to each other and were residing within 1km radius from the place of occurrence. 13. PW2 is one Murukeshan. He stated that he was with the deceased as well as PW1 in the shop of one Kalathil Sunil. At about 7:30 p.m., the deceased received a call from the mobile phone of Shibu. They went to the shed and except of PW2 and PW7, all the rest played cards. He stated that in the course of the game, the accused claimed that the deceased cheated while playing and there was an exchange of words. All of them went out of the shed and when they were about to engage in a fisticuff others intervened and separated them. While the deceased was going towards the road, the accused followed him, took out a knife, and inflicted a stab injury. He stated that there was enough light in the vicinity to see the accused inflicting the fatal injury on the deceased. He also had a torch in his hand. He spoke about the attempts made by them to stop bleeding, by removing the kaily and tying it around the injured part of Shibu, and also the shifting of the injured to the hospital. He also identified the clothes worn by the accused as well as the deceased and the weapon used for the commission of the crime. Though the witness was cross-examined, nothing worthwhile was brought out to discredit his evidence. Exts.D1 to D3 contradictions which were brought out are minor and inconsequential. Those were related to who all had played the card game and as regards the description as to whether it was Kaily or Mundu which were worn by the witnesses. The contradictions brought out are not of such a nature as to cast any doubt as regards the quality of the evidence tendered by PW2. 14. PW3 is one Shaji. Those were related to who all had played the card game and as regards the description as to whether it was Kaily or Mundu which were worn by the witnesses. The contradictions brought out are not of such a nature as to cast any doubt as regards the quality of the evidence tendered by PW2. 14. PW3 is one Shaji. He stated that he is cultivating the property wherein the shed is situated jointly with the land of Sivaraman (PW8), the father of the deceased. He stated that on 07.04.2012, he along with PW7 reached the shed at about 6:30 p.m. They had gone to the shed to guard the crops against wild animals. While PW3 as well as PW7 were in the shed, the accused reached there. Since they were aware that Sivaraman did not like the accused, he advised Saji to leave the shed. However, Saji insisted that he stay there. Later, Saji called the deceased, who along with PWs 1 and 2, came to the shed. They started playing cards and he also spoke about the altercation between Shibu as well as the accused. He stated that the accused had abused the deceased and there occurred a wordy altercation. He stated that the deceased warned the accused to refrain from picking up a fight with him. At that point of time, the accused stood up, threw the cards, and hit the deceased on his shoulder. When they were about to throw blows, all of them intervened and separated them. Immediately thereafter, the deceased left the shed. He stated that it was at this juncture that the accused followed him and inflicted a stab injury on his lower abdomen. The deceased clutched on his abdomen and cried out saying that Saji had stabbed him. He stated that PW2 as well as PW3 took off their respective kailies and tied them around the injured part of Shibu. He along with the others went to the hospital and it was thereafter that they went to the Police Station and had given the statement, based on which the Crime was registered. Through PW3, the clothes worn by the accused were also marked. He spoke about the presence of light from the bonfire and the torchlight in the hands of PW2 and according to him, the light was sufficient to witness the incident. Through PW3, the clothes worn by the accused were also marked. He spoke about the presence of light from the bonfire and the torchlight in the hands of PW2 and according to him, the light was sufficient to witness the incident. In cross-examination, though an attempt was made to discredit him, he withstood the test of cross-examination and his version is clearly in tune with the version given by PWs 1 and 2. 15. PW7 is the younger brother of the deceased. He stated that he was in the shed with PW3 (Shaji) and at about 7 pm., the accused came there. Though Shaji asked him to leave, he remained there. After some time, the accused called the deceased over the phone and invited him to the shed. The deceased along with PWs 1 and 2 came to the sheds. After playing 4-5 card games, the accused picked up a quarrel by alleging that the deceased cheated while playing. He threw of the cards and he knocked the deceased on his shoulder. They somehow managed to separate the accused and the deceased. All of them decided to go home and came out of the shed. The deceased walked in front and abruptly, the accused rushed towards the deceased and stabbed Shibu with a knife on the left side of the lower abdomen. Though they tried to arrest the blood flow using the kailie of PWs 2 and 3, they were not successful. They also used the shirt of the deceased to tie around the wound and arrest the blood flow. The injured was lifted up and taken to the house of Rajendran. He then called his father Sivaraman (PW8), who rushed to the spot. The injured was shifted to the Pathanamthitta Government Hospital in a Jeep. The Doctor examined him at 11 p.m. and pronounced him dead. He stated that there was a bonfire outside the shed and PW3 also had a bright torch and they were able to see the incident using the said light. He identified the weapon used by the accused. Though the witness was cross-examined at length, the defence was not able to bring out any materials to discredit his evidence. 16. PW8 is the father of the deceased, who came to the spot on being informed by PW7. 17. PW10 is one Kunjumol and PW12 is her son-in-law. He identified the weapon used by the accused. Though the witness was cross-examined at length, the defence was not able to bring out any materials to discredit his evidence. 16. PW8 is the father of the deceased, who came to the spot on being informed by PW7. 17. PW10 is one Kunjumol and PW12 is her son-in-law. They were examined to prove the recovery of the knife purportedly used by the appellant to inflict the injury. PW10 stated that sometime in the year 2012, the accused came to her house along with his father and requested that they be permitted to stay for a day. While they were returning on the next day, a cover containing a knife was given to her. She stated that the police officers had come to her house on a day at midnight and asked her about the weapon. She handed over MO2 knife to the police. PW12, on the other hand, stated that on 22.04.2012 at about 9.15 a.m., the C.I. of Police, Konni Police Station came to his house and prepared a mahazar in respect of MO2 knife. He stated that the accused and his father had come to their house and had entrusted the knife to his mother-in-law. He also stated that the accused was not present when the police came to his house and recovered the weapon. 18. PW14 was the officer who had effected the arrest of the accused at 9 a.m. on 23.04.2012. PW15 is an attestor to the inquest and PW16 is the Village Officer who had prepared Ext.P8 scene plan. PW17 is the Sub Inspector of Police who recorded Ext.P1 FI Statement based on which Ext.P9 FIR was registered. PW18 is the Associate Professor, MCH Kottayam, who had conducted the autopsy over the body of the deceased. PW19 is the Assistant Director, Serology, who examined the material objects and issued Ext.P12 report. Analysis 19. The first contention raised by the learned counsel is with regard to the delay in lodging the FI Statement. The evidence would reveal that after receiving the stab injury, the injured was immediately shifted to the hospital in the Jeep driven by PW4. PWs 1 to 3 and PW4 had accompanied the injured. Analysis 19. The first contention raised by the learned counsel is with regard to the delay in lodging the FI Statement. The evidence would reveal that after receiving the stab injury, the injured was immediately shifted to the hospital in the Jeep driven by PW4. PWs 1 to 3 and PW4 had accompanied the injured. Their objective was to save the life and hence though the police station was on the way, being rustic people, they chose to take the injured to the Pathanamthitta Government Hospital. In the meantime, some unidentified person had called up the Police and informed them of the incident that had happened at 9.30 pm. PW15 stated that though the information was received, it did not contain details of the injured, the accused, and the manner in which the injuries were inflicted. PW15 thus chose to wait till one of the eyewitnesses was available to record the statement. It is clear from the evidence of PW15 that the information was cryptic. It is by now settled that a cryptic telephonic information cannot be treated as FIR. (See Manu Sharma v State (NCT Delhi) (2010) 90 AIC 193 ). In Netaji Achyut Shinde(Patil) v. The State Of Maharashtra , AIR 2021 SC 1655 the Apex Court had held that a cryptic phone call without complete information or containing part-information about the commission of a cognizable offence cannot always be treated as an FIR. 20. The next contention pertains to the alleged discrepancies in the evidence provided by PWs 1 to 3 and PW7. An evaluation of the evidence reveals that all the occurrence witnesses have described in clear detail how the incident began, progressed, and culminated with the infliction of the stab injury. It is well-settled that, while assessing a witness's testimony, the focus must be on whether the evidence, when read as a whole, carries a ring of truth. Once such an impression is formed, the court must carefully scrutinize the evidence, taking into account the deficiencies, drawbacks, and infirmities highlighted in it. The court must determine whether these issues undermine the general tenor of the witness's testimony and whether the initial impression of truthfulness is sufficiently shaken to render the evidence unworthy of belief. Once such an impression is formed, the court must carefully scrutinize the evidence, taking into account the deficiencies, drawbacks, and infirmities highlighted in it. The court must determine whether these issues undermine the general tenor of the witness's testimony and whether the initial impression of truthfulness is sufficiently shaken to render the evidence unworthy of belief. Minor discrepancies on trivial matters that do not affect the core of the case, or an overly technical approach that isolates sentences out of context or fixates on minor errors by the investigating officer that do not go to the root of the matter, do not ordinarily warrant rejecting the evidence in its entirety. Even honest and truthful witnesses may differ in details unrelated to the main incident, as observation, retention, and recollection abilities vary among individuals. Differences in perception mean that one person may notice details that another does not. Estimates about the time of an incident or its duration are often made on the spur of the moment and are prone to inaccuracy during interrogation. Witnesses cannot be expected to recall with precision the sequence of events occurring in rapid succession or over a short time span. A wholly truthful witness may become overwhelmed by the courtroom atmosphere or the rigorous cross-examination, leading to confusion, errors in recalling the sequence of events, or the addition of imagined details in the moment. (See State of U.P. v. M.K. Anthony ,[ (1985) 1 SCC 505 ] Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, [ (1983) 3 SCC 217 ] ). Upon testing the witnesses' evidence, we conclude that the minor discrepancies pointed out by the learned counsel for the appellant—such as the exact site of the injury, whether on the abdomen or the lower abdomen or the type of dhoti/kaily used to arrest the blood flow—do not materially affect the credibility of their testimony. Moreover, as held by the Apex Court in Dalip Singh and Ors. v. State of Punjab , [ AIR 1953 SC 364 ] a close relative is ordinarily the last person to shield the real culprit and falsely implicate an innocent individual. It is acknowledged that in cases where emotions run high and personal enmity exists, there may be a tendency to falsely implicate an innocent person alongside the guilty. However, such criticism must be substantiated with a foundation. It is acknowledged that in cases where emotions run high and personal enmity exists, there may be a tendency to falsely implicate an innocent person alongside the guilty. However, such criticism must be substantiated with a foundation. The mere fact of a witness's relationship to the victim, far from being a basis for suspicion, often serves as a strong indicator of truthfulness. (See also Masalti and Ors. v. State of U.P., ( AIR 1965 SC 202 ) ). 21. Smt. Jasmine would vehemently argue that the witnesses are interested witnesses and that their evidence should be tested with strict scrutiny. In Ram Bharosey v. State of U.P , (2010) 1 SCC 722 the Apex Court has explained that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same. In Jayabalan v. UT of Pondicherry , (2010) 1 SCC 199 the Apex Court reiterated that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. It was observed as under in paragraph 23 of the judgment. “23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to  look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. 22. The primary endeavour of the court must be to  look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. 22. Having considered the evidence adduced by PW1 to 3 and PW7, in the light of the principles above, we are of the view that the evidence tendered by the witnesses is consistent and believable, and none of the contentions advanced by the learned counsel are sufficient to throw the evidence of the witness overboard. 23. The next contention advanced by the learned counsel is with regard to the presence of light enabling the witnesses to witness the incident. It has come out in evidence that the accused is a near relative of the deceased and PW7. PWs 1 to 3 are close friends and nearby residents. They are also persons having close acquaintance with the accused and are staying in the near vicinity. They were playing cards for quite some time and it was during the same that a fight broke out between the deceased and the accused. All of them started to leave and the deceased went in front followed by the witnesses. The evidence reveals that the accused came from the back and then inflicted the stab injury. There was a bonfire burning outside the shed and PW2 had a bright torch. PW1 stated that there was a kerosene lamp inside the shed as well. If it was not for the presence of sufficient light, the witnesses as well as the accused could not have managed to play cards in the open shed. They all have stated that after inflicting the injury, the accused took to his heels and disappeared. In Kalika Tiwari And Others v. State Of Bihar , 1997 AIR SC 2186 while faced with almost identical fact scenario, it was held by the Apex Court that the visible capacity of urban people who are acclimatized to fluorescent light is not the standard to be applied to villagers whose optical potency is attuned to country made lamps. Visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such lights. Visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such lights. In Nathuni Yadhav.v. State of Bihar ,1997 AIR SC 1808  it was held that even in the absence of sufficient light, if the assailant is known to the witnesses identification can still be credible. The court highlighted the proximity and familiarity with the assailants play a crucial role in the identification process even in dim light. In State of U.P. v. Babu, AIR 2003 (SC) 3408 it was held that when the persons are known, identification is possible from the physique, gesture of movement, manner of walking etc. and gesticulating and special features of a person like the physical attributes; in such cases even where a light is dim, known persons can be successfully identified. In that view of the matter, the contention forcefully advanced by the learned counsel is only to be rejected. 24. The next question which falls for consideration of this Court is whether, on consideration of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of the IPC can be upheld. This is because appropriate sentencing is a very vital function and obligation of the court. There are significant features of the case that are required to be taken into consideration in awarding the appropriate sentence to the accused: i) The accused and the deceased are near relatives. ii) Though an attempt was made to prove that there were familial disputes between the accused and the deceased, the prosecution failed to establish the same. On the other hand, the fact that they are close and had no animosity towards each other is borne out from the fact that it was in response to the request made by the accused that the deceased and his friends had come to the shed of a farm owned by the father of the deceased. iii) While playing cards, an altercation occurred between the deceased and the accused a few minutes before the incident. iv) Only a single stab injury was inflicted and that too on the lower abdomen. PW18 doctor in his evidence stated that death had occurred due to loss of blood and that injury was not of such a nature that would cause instantaneous death. iv) Only a single stab injury was inflicted and that too on the lower abdomen. PW18 doctor in his evidence stated that death had occurred due to loss of blood and that injury was not of such a nature that would cause instantaneous death. v) The offence was without premeditation upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. 25. Exception 4 to Section 300 reads as under: “Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.” 26. In Surendra Kumar v. UT, Chandigarh, (1989) 2 SCC 217 while explaining the conditions precedents for invocation of Exception 4 of Section 300, it was held as under by the Apex Court. “7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. 27. It would also be apposite to refer to the observations in Sandhya Jadhav v. State of Maharastra, 2006 4 SCC 653 in the context of deciding whether, in the facts and circumstances, the offence under Section 302 of the IPC would be made out. “9. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. 27. It would also be apposite to refer to the observations in Sandhya Jadhav v. State of Maharastra, 2006 4 SCC 653 in the context of deciding whether, in the facts and circumstances, the offence under Section 302 of the IPC would be made out. “9. The Fourth Exception to 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 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A “sudden fight” implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having  taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having  taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in 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 or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage?. 28. In the case on hand, we find that the incident had occurred in the spur of the moment. The accused as well as the deceased are near relatives. They were together for a few hours and were playing cards. There occurred a fight while playing the card game as the accused felt that the deceased cheated. The witnesses stated that there was an exchange of words and they had to intervene to separate the accused. The deceased had left the shed first and the accused followed him. Only one injury was inflicted with the knife and it was on the lower abdomen. In his evidence, the doctor stated that the cause of injury was loss of blood. He had also stated that the injury was of such a nature that would not have caused instantaneous death. There was a scuffle between the accused and the deceased as spoken to by PW3. In his evidence, the doctor stated that the cause of injury was loss of blood. He had also stated that the injury was of such a nature that would not have caused instantaneous death. There was a scuffle between the accused and the deceased as spoken to by PW3. Taking an overall view of the incident, we are inclined to think that the appellant was entitled to the benefit of the 4th exception as relied upon. Under these circumstances, we think it proper to convict the accused under Section 304, Part I IPC, and direct him to suffer Rigorous Imprisonment for 10 years. Conclusion: In the result, we allow this appeal but only to the extent that instead of Section 302 of the IPC, the appellant shall stand convicted for the offence of culpable homicide not amounting to murder punishable under Section 304 Part-I of the IPC and sentenced to undergo Rigorous Imprisonment for a period of ten (10) years. The conviction and sentence passed for the offence under Section 447 of the IPC is upheld. The fine imposed upon the appellant and the default sentence awarded to him shall remain unaltered. The appeal is disposed of in the above terms in modification of the judgment passed by the learned Sessions Judge.