http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (crl.)  1535 of 2007

PETITIONER: Thankachan & Anr

RESPONDENT: State of Kerala

DATE OF JUDGMENT: 13/11/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   1535           OF 2007 (Arising out of SLP (Crl.) No.3646 of 2006)

Dr. ARIJIT PASAYAT, J.

        1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  Division Bench of the Kerala High Court, dismissing the  appeal filed by the appellants who were described as A2 and  A3 indicating their position before the trial court, while  allowing the appeals filed by the two other accused persons  (A1 and A4). 3.      The conviction of the appellants for offence punishable  under Section 302 read with Section 34 of the Indian Penal  Code, 1860 (in short the ’IPC’) and sentence of imprisonment  for life and a fine of Rs.20,000/- with default stipulation was  upheld.

4.      The prosecution version in a nutshell is as follows:

On 7.2.1997 at or about 6.45 p.m. at Ayamkudy Kara in  Muttuchira Village of Vaikom Taluk in Kotayam District, the  4th accused came driving his goods autorickshaw (pick-u-auto)  along with A1 to A3 in the said goods carrier and pulled up in  front of Marangattil House of Sathyadevan @ Sahadevan @  Sahadi (hereinafter referred to as the ’deceased’). The deceased  was the driver of a mini lorry.  A2 straight away went over to  the deceased who was sitting along with PW2 in the varanda of  his house.  A2 caught hold of the deceased by the tuck of his  dhoti and dragged him on to the Ezhumanthuruthi Kapoola  road in front.  The deceased picked up a soda bottle from the  parapet of his house. Seeing this A2 went and picked a soda  bottle from the adjacent grocery shop run by Rajamma (PW 7),  the wife of the deceased and came on to the road. From the  southern mud road (road margin) in front of the aforesaid  grocery shop, A2 struck the deceased on the head with the  soda bottle.  Then the deceased also hit A2 on the head with  the soda bottle in his hand and inflicted an injury.  Seeing this  A2 sprinkled chilly powder on the eyes of the deceased.  The  chilly powder got into the eyes of the deceased who stood there  with both hands held against his face and rubbing his eyes.   A1 then exhorted his companions to cut Sahadevan to death.   Thereupon A2 drew a chopper from inside his shirt and cut  the deceased on his head inflicting injuries.  A3 stabbed the  deceased on his right arm with a knife inflicting injury.  A4

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

then cut the deceased on the back of his head with a chopper.   The deceased fell on the road and was taken by PWs.1, 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 A1 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 PWs 1 to 16 and got marked 17 documents as Exts. P1 to  P17 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. P16  and P17 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  DW1.

5.      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.

6.      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.1 with a broken bottle and caused several  injuries.   

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

8.      In essence the stand of learned counsel for the appellant  is that Exception IV to Section 304 IPC would apply to the  facts of the case.      

9.      For bringing in operation of Exception 4 to Section 300  IPC, it has to be established that the act was committed  without premeditation, in a sudden fight in the heat of passion  upon a sudden quarrel without the offender having taken  undue advantage and not having acted in a cruel or unusual  manner.    10. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

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. 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 mo re 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 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 in the  provision means "unfair advantage".  11.     The above position is highlighted in Sandhya Jadhav v.  State of Maharashtra (2006) 4 SCC 653).   

12.     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 sentence would be  two years.      

13.     Appeal is allowed to the aforesaid extent.