(Prayer: Criminal Appeal is filed under Section 372 of the Code of Criminal Procedure, against the judgment dated 05.10.2021 in S.C.No. 278 of 2019 on the file of the Principal Sessions Judge, Thanjavur and set aside the same as illegal and acquit the appellant from all charges leveled against him.)

N. Anand Venkatesh, J.

1. The sole accused assails the judgment of the Principal Sessions Judge, Thanjavur, made in S.C.No.278 of 2019 dated 05.10.2021, wherein the appellant was found guilty for offence under Section 302 of IPC and was sentenced to undergo life imprisonment and to pay a fine of Rs.4,000/-, in default to undergo two months simple imprisonment and was also found guilty for offence under Section 506 Part II of IPC and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000, in default to undergo one month simple imprisonment. The sentences were ordered to run concurrently.

2. The case of the prosecution is that PW1 had two brothers and one sister and the deceased Kannan @ Kannayan is the younger brother. On 24.03.2019 at about 4.00 PM, the deceased came to the house of PW1 and took food and went to the house of the accused in a two wheeler. There was a wordy quarrel between the deceased and accused and the accused seems to have questioned the deceased as to why the food was not tasty. All of a sudden the accused person is said to have gone into the house and brought a billhook (M.O.1) and attacked the deceased in his head, cheek and hand. The deceased succumbed to the injuries.

3. PW1 went to the Naducauvery Police Station on 25.03.2019 morning and informed about the incident which was reduced to writing (Ex.P1). Based on the same, an FIR came to be registered under Ex.P12 in Crime No.33 of 2019 for offence under Sections 302 and 506 Part II of IPC.

4. The investigation was taken up by PW12 and he sent the express FIR along with the statement of the complaint to the Judicial Magistrate, Thiruvayaru. PW12 came to the scene of occurrence on 25.03.2019 at about 1.30 PM and prepared the Observation Mahazar (Ex.P14) and the Rough Sketch (Ex.P13). In the presence of witnesses PW12 seized MO2 to MO4 under Ex.P2 Seizure Mahazar.

5. PW12 thereafter went to the hospital and conducted the inquest on the dead body of the deceased from 3.30 PM to 4.30 PM in the presence of witnesses and prepared Ex.P15 Inquest Report. After completion of inquest the dead body was handed over to PW9 Head Constable.

6. PW7 conducted the postmortem and issued the Postmortem Certificate (Ex.P9) by recording the following external and internal injuries on the dead body:

                   “1) An oblique gaping heavy cut injury of size 9 cm x 2 cm x bone depth noted over right side check. It cuts the underlying soft tissue, vessels, nerves and bones. The tailing mark noted over inner aspect of wound

                   2) An oblique heavy cut injury of size 8 cm x 2cm x bone depth noted over left parictal region.

                   3) An oblique heavy cut injury of size 9 cm x 5 cm x bone depth noted over le?t parictal region. It lies 2 cm below injury No. 2.

                   4) An oblique heavy cut injury of size 14 cm x 1.5 cm x bone depth noted over left occipital region. It lies 3 cm below injury. No.3.

                   5) A horizontal gapping heavy cut injury of size 10 cm, 3 cm x bone depth noted over occipital region at the level of external occipital protuberance. It lies 3 cm below injury No. 4.

                   6) An oblique gapping heavy cut injury of size 10 cm x 3 cm x bone depth noted over dorsum of left hand at the level of left middle finger with fracture and dislocation of 3rd metacarpal bone noted.

                   7) An oblique gaping cut injury of size 3 cm x 2 cm x bone depth noted over left ring finger with fracture & dislocation of phalanges noted.

                   8) An oblique cut injury of size 2 cm x 1 cm x bone depth noted over dorsum of left index finger.

                   9) An oblique cut injury of size 2 cm x 1 cm x bone depth noted over dorsum of left index finger.

                   10) Multiple ant bite marks noted over right upper limb, front of left side of abdomen, front of riglit thigh, front and back upper 1/3rd of left thigh, front of left leg and external genitalia.

                   ON DISSECTION OF CRANIAL CAVITY:.

                   Diffuse scalp contusion noted over entire scalp. Cut fracture of size 5 cm x 2 cm noted over right occipital bone. Fissure fracture & cm in length noted over left temporo- parietal bones and 12 cm in length noted over fronto-parieto-occipital bones. Right temporalis muscle found to contused. Brain found to be edematous, diffuse subdural and subarachnoid hemorthage noted over surface of cerebrum and cerebellum:

                   Fissure fracture 4 cm and 3 cm length & elevated fracture 16 cm x 2 cm in size noted over posterior cranial fossa.”

7. The final opinion was given to the effect that the deceased would appear to have died due to shock and hemorrhage.

8. The investigation officer recorded the statement of the witnesses under Section 161 of Cr.P.C., and collected all the materials. The accused person was also arrested in the course of investigation and based on his confession, MO1 was seized under Ex.P6 Seizure Mahazar. On completion of investigation, the police report was laid before the Judicial Magistrate, Thiruvayaru. The Judicial Magistrate after issuing copies under Section 207 of Cr.P.C., committed the case and it was taken on file by the Principal Sessions Judge, Thanjavur in S.C. No.278 of 2019.

9. The trial court framed charges for offences under Sections 302 and 506 Part II of IPC and the accused person denied the charges.

10. The prosecution examined PW1 to PW12 and marked Ex.P1 to Ex.P19 and also relied upon MO1 to MO6.

11. After completion of the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C., regarding the incriminating circumstances and evidence and he denied them as false.

12. The accused person did not examine any witnesses nor did he rely upon any exhibits.

13. The trial court on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence came to the conclusion that the prosecution has proved the case beyond reasonable doubt and accordingly, convicted and sentenced the accused person in the manner stated supra. Aggrieved by the same, the present appeal has been filed before this Court.

14. This Court carefully considered the submissions made on either side and the materials available on record.

15. The evidence of PW1 to PW3 has a lot of significance in this case since these three witnesses were examined as eyewitnesses. PW1 was the uncle of the accused person. He has stated that he saw the accused and the deceased involved in a wordy quarrel with respect to the food that was served to the accused person and when an attempt was made to console the parties, the accused person is said to have attacked the deceased with MO1 and also threatened PW1.

16. PW2 is the son of PW1 and he has also reiterated the same facts.

17. PW3 is the son of the accused person. His evidence is also in line with the evidence of PW1 and PW2. The eyewitness account of PW1 to PW3 has not been discredited in the cross examination and there is absolutely no reason to disbelieve the same. The ocular evidence of PW1 to PW3 is also supported by the evidence of the doctor who conducted the postmortem and recorded the injuries in the Postmortem Certificate.

18. The discrepancies that were pointed out by the learned counsel for the appellant does not in any way take away the weightage of the evidence of PW1 to PW3.

19. The next issue that was put forth by the learned counsel for the appellant is that the entire incident had taken place in the spur of the moment after a wordy quarrel and therefore, the case can be brought under Section 304 of IPC. As stated supra, PW1 to PW3 have explained the manner in which the incident took place. It all started with a minor wordy quarrel based on the taste of the food that was served to the accused person. This wordy quarrel developed and in the spur of the moment the accused person lost his cool and attacked the deceased with MO1, which was available in the house.

20. In the considered view of this Court, the facts of the present case can be brought within Exception 4 to Section 300 of IPC. There was no premeditation on the part of the accused person to commit the murder of the deceased. There was a sudden fight and in the heat of passion upon a sudden quarrel, the accused attacked the deceased with MO1.

21. It will be relevant to take note of the judgment of the Apex Court in Atul Thakur v. State of Himachal Pradesh, reported in (2018) 2 SCC 496, wherein the Apex Court held that the weapon used and the number of injuries sustained by itself will not disentitle extending Exception 4 to Section 300 of IPC. The relevant portions are extracted hereunder:

                   “12. Taking overall view of the matter, the facts of the present case warrant invocation of Exception 4 to Section 300 of IPC. For, it is a case of culpable homicide not amounting to murder inasmuch as the incident happened on account of sudden fight between the friends who had gathered for a drink party arranged at the behest of Hitesh Thakur. There was no pre-mediation and the act done by the appellant was in the heat of passion without the appellant taking any undue advantage or acted in a cruel manner. The number of wounds caused by the appellant, it is a well established position, by itself cannot be a decisive factor. The High Court committed manifest error in being influenced by the said fact. What is relevant is that the occurrence was sudden and not premeditated and the offender acted in the heat of passion. The evidence supports the case of the appellant in this behalf. The fact that the appellant used weapon such as knife, is also not a decisive factor to attract Section 302 of IPC. Neither the use of a knife in the commission of offence nor the factum of multiple injuries given by the appellant would deny the appellant of the benefit of Exception 4.

                   13. Dealing with a somewhat similar situation, in the case of Surain Singh Vs. State of Punjab 1 , this Court has restated the settled legal position about the purport of Exception 4 to Section 300 of IPC. Even in that case, the accused had repeatedly assaulted the deceased with a Kirpan and caused injuries resulting into death. After restating the legal position, the Court converted the offence to one under Section 304 Part-II instead of Section 302 IPC. Following the same legal principle and keeping in mind the factual position as unfolded, the view taken by the Trial Court of convicting the appellant for offence punishable under Section 304 Part-II, is unexceptionable. The Trial Court had observed thus:

                   “60. The evidence placed on record by the prosecution, reveals that deceased Hitesh and the accused were having cordial relations since long, knowing to each other and were good friends. A party was organized by the deceased in the room of accused Mukesh and deceased himself invited all the accused to attend the party. In this party, large quantity of alcohol was consumed by them and suddenly an altercation took place between deceased Hitesh and accused Atul Thakur as a result of which accused Atul stabbed Hitesh, which resulted into his death……

                   61. There is no doubt that Hitesh met a homicidal death on the night intervening 27/28.07/2011 at IGMC, Shimla consequent to stab injury inflicted by accused Atul Thakur. The queston which arises for consideration is whether this action of the accused which caused the death of Hitesh would amount to murder or culpable homicide not amounting to murder. It is an admitted fact that there was no enmity between the deceased and this accused rather they were having cordial relations. The fact that there was a physical fight between the deceased and the accused Atul, cannot be denied because it has come in the evidence of PW-11 Himanshu, PW-12 Manoj Bansal and PW-1 Ashutosh that a physical fight has taken place between them. In these circumstances, this Court will have to examine the prosecution evidence whether the accused Atul had taken an undue advantage or acted in a cruel or inimical manner so as to deprive him of the benefit of exception 4 of Section 300. In fact, the prosecution could not prove any motive for killing the deceased by the accused. The drinking session in the room of the accused Mukesh Thakur was by mutual consent. From these circumstances, it can be held that the incident in question took place in a sudden fight in the heat of possession. The next question which arises for consideration is whether the accused Atul did take an undue advantage of the said fight or acted in a cruel or inimical manner. Keeping in view the fact that both the deceased and accused had consumed considerable amount of alcohol which is established from the evidence of the prosecution witnesses, it cannot be altogether ruled out that the stab injuries inflicted were not with an intention of taking undue advantage by the accused Atul. It is probable that in an inebriated condition the accused inflicted the injuries because of the physical fight between them. Moreover, keeping in view the nature of the injuries noticed by Dr. Sandeep Kaushik in the MLC Ext. PW-18/A, it is difficult to accept the accused Atul Thakur intended to cause the death of Hitesh or that the injuries were so dangerous that they would in all probability, cause death. Nevertheless, the injuries were quite serious, the accused can surely by credited with the knowledge that if an injury is caused with a knife on the chest or abdomen of a person then this act is likely to cause the death of the victim.

                   62. Having considered the material on record this Court is of the opinion that the accused Atul Thakur can only be found guilty of an offence punishable under Section 304 Part II, Indian Penal Code.”

                   14. As aforesaid, the High Court overturned this finding of the Trial Court on the question of nature of offence, by mainly observing that the appellant had caused repeated blows with a weapon like knife, causing six serious injuries to Hitesh Thakur to which he succumbed. We are of the opinion that neither the factum of use of knife by the appellant during the assault nor the multiple blows (six) given by the appellant can be the sole basis to deny the appellant of the benefit available under Exception 4 to Section 300 of IPC. The Court is obliged to take an overall view of the matter on the basis of the established facts. This principle is restated in Surain Singh’s case (supra).

                   15. The next question is whether the appellant is right in his persuasive argument to restore and revive the decision of the Trial Court on the quantum of sentence. The Trial Court awarded the sentence of rigorous imprisonment for five years only for offence under Section 304 Part-II of IPC and fine of Rs.10,000/- and in default, to undergo rigorous imprisonment for a further period of one year. For that no special reason has been recorded by the Trial Court. Considering the nature of offence and the trivial reason for which the appellant got enraged and assaulted Hitesh Thakur, that too by a knife and also gave multiple blows, does not warrant a light punishment. We would, however, accept the argument of the respondents that in the fact situation of the present case, the sentence period should not be less than 10 years imprisonment with fine. That would meet the ends of justice.”

22. The above judgment was followed by the Division Bench of this Court in Thangapandi v. State, reported in MANU/TN/1594/2023.

23. In the light of the above discussion, this Court is inclined to hold that the act of the appellant will not fall within the requirement of a murder and it is only a culpable homicide not amounting to murder and the case is brought within Exception 4 to Section 300 IPC.

24. In the result, this criminal appeal is partly allowed and the conviction under Section 302 of IPC passed by the Principal Sessions Judge, Thanjavur, in S.C.No.278 of 2019 dated 05.10.2021 is set aside and modified into a conviction under Section 304 Part II of IPC. The sentence of life imprisonment passed by the court below is set aside and the appellant is sentenced to undergo four and half years rigorous imprisonment and to pay a fine of Rs.5,000/- and in default to undergo six months simple imprisonment. The period of sentence already undergone by the appellant shall be set off under Section 428 of Cr.P.C. as against the substantive sentence.