THANKACHAN AND ANR. versus STATE OF KERALA

Leave granted.

p. 1131, margin A

Challenge in this appeal is to the order passed of the Kerala High Court, dismissing the appeal who were described as A2 and A3 indicating their trial court, while allowing the appeals filed by persons (Al and A4).

p. 1131, margin A

The conviction of the appellants for offence Section 302 read with Section 34 of the Indian short the 'IPC') and sentence of imprisonment Rs.20,000/-with default stipulation was upheld.

p. 1131, margin A

The prosecution version in a nutshell is On 7.2.1997 at or about 6.45 p.m. at Ayamkudy Village of V aikom T aluk in Kotayam District, the his goods autorickshaw (pick-u-auto) along with Al goods carrier and pulled up in front of Marangattil @ Sahadevan@ Sahadi (hereinafter referred deceased was the driver of a mini lorry. A2 straight the deceased who was sitting along with PW2 in A2 caught hold of the deceased by the tuck him on to the Ezhumanthuruthi Kapoola road picked up a soda bottle from the parapet of his went and picked a soda bottle from the adjacent Rajamma (PW 7), the wife of the deceased From the southern mud road (road margin) grocery shop, A2 struck the deceased on the head Then the deceased also hit A2 on the head with hand and inflicted an injury. Seeing this A2 sprinkled the eyes of the deceased. The chilly powder deceased who stood there with both hands held rubbing his eyes. Al then exhorted his companions death. Thereupon A2 drew a chopper from inside deceased on his head inflicting injuries. A3 stabbed right arm with a knife inflicting injury. A4 then back of his head with a chopper. The deceased taken by PWs.l, 2 and 8 to the Kottayam Medical College Hospital. The deceased who had become unconscious on account of the injuries sustained by him succumbed to the same at about 2.10 p.m. on 8.2.1997. Since the aforesaid acts were done by Al to A4 in prosecution of their common intention to do so, the accused persons were charged for having committed the offence of murder punishable under Section 302 read with Section 34 IPC. On the accused pleading not guilty to the charge framed against them by the court below for the aforementioned offence, the prosecution was permitted to adduce evidence in support of its case. The prosecution examined 16 witnesses as PW s 1 to 16 and got marked -17 documents as Exts. Pl to Pl 7 and 8 material objects as Mos. 1 to 8. After the closure of the prosecution's evidence the accused were questioned under Section 313(1) of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. They admitted that Exts. Pl6 and Pl 7 are the wound certificates pertaining to A2 and A3 respectively. When called upon to enter on their defence, the accused examined the Secretary of the Ayamkudy Branch of KPMS as DWI.

pp. 1131–1132, margin C

Placing reliance on the evidence of PWs 2, 3, 7 and 8 the trial Court recorded conviction. As noted above, appeal was preferred before the High Court by all the four accused persons, and the appeal filed by the present appellants was dismissed while that of co-accused was allowed.

p. 1132, margin E

In support of the appeal learned counsel for the appellant submitted even if prosecution version accepted in toto offence under Section 302 IPC is not made out. As a matter of fact it is the prosecution version that the deceased first assaulted appellant no. I with a broken bottle and caused several injuries.

p. 1132, margin F

Learned counsel for the respondent on the other hand submitted that the trial Court and the High Court have rightly found the accused pe·rsons guilty of offence punishable under Section 302 IPC.

pp. 1132–1133, margin G

In essence the stand of learned counsel for the appellant Exception IV to Section 300 IPC would apply to the facts

p. 1133, margin A

For bringing in operation of Exception 4 to Section has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel offender having taken undue advantage and not having acted or unusual manner.

p. 1133, margin A

The Fourth Exception to Section 300 IPC covers a sudden fight. The said Exception deals with a case of prosecution covered by the First Exception, after which its place would more appropriate. The Exception is founded upon the same in both there is absence of premeditation. But, while in Exception 1 there is total deprivation of self-control, in case 4, there is only thatheat of passion which clouds men's sober urges them to deeds which they would not otherwise provocation in Exception 4 as in Exception 1; but the injury the direct consequence of that provocation. In fact Exception cases in which notwithstanding that a blow may have been struck, provocation given in the origin of the dispute or in whatever w quruTel may have originated, yet the subsequent conduct of puts them in respect of guilt upon equal footing. A "sudden mutual provocation and blows on each side. The homicide then clearly not traceable to unilateral provocation, nor in such the whole blame be placed on one side. For if it were so, the more appropriately applicable would be Exception 1. There deliberation or determination to fight. A fight suddenly takes which both parties are more or less to be blamed. It may be them starts it, but if the other had not aggravated it by his own would not have taken the serious tum it did. There is provocation and aggravation, and it is difficult to apportion blame which attaches to each fighter. The help of Exception 4 can invoked if death is caused (a) without premeditation; (b) in a (c) without the offender having taken undue advantage or acted or unusual manner; and (d) the fight must have been with the To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that tlie "fight" occurring in Exception 4 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 not possible to enunciate any general rule as to what shall be deemed be a sudden quarrel. It is a question of fact and whether a quarrel 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 that 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 the provision means "unfair advantag~".

pp. 1133–1134, margin B

The above position is highlighted in Sandhya Jadhav v. State of Maharashtra, [2006] 4 SCC 653.

p. 1134, margin D

Considering the background facts, appropriate conviction would be under Section 304 Part I IPC and not Section 302 IPC. The conviction is accordingly altered. Custodial sentence of ten years would suffice. Fine amount is reduced to Rs.5,000/-. In case fine is not paid, default ~ntence would be two years.

p. 1134, margin D

Appeal is allowed to the aforesaid extent. N.J. Appeal Partly allowed.

p. 1134, margin E