VASUDEVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Appellant challenges his conviction and sentence on a count under S. 302 of the Indian Penal Code. Heard the learned counsel appearing for the appellant under State assistance and the learned Public Prosecutor.

(2.) The gist of the prosecution case is as follows: At about 9.45 p.m. on 9.10.2005, the accused and the deceased quarrelled in the scene of occurrence, which, going by description, is in the public place in front of the residence of P.W. 1. This happened, after both of them alighted from a motor cycle, which the accused was riding and the victim, the pillion rider. As a result of the stab injuries inflicted by the accused, the victim died. The intention to kill is attempted to be fortified by the story that two days prior to that incident, there was an altercation between them.

(3.) The learned counsel appearing for the appellant argued that the credibility of the ocular witnesses, P.W. 1, PW2 and PW3, cannot be taken to the extent to which the Court of Session has done and that there is every likelihood of the deceased being the aggressor and the incident having occurred without premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel. According to the learned counsel, there is no material to hold that the accused had taken undue advantage or acted in a cruel or unusual manner. The attempt is to bring the case under Exception 4 to S. 300 of the I.P.C. She also argued that in such cases, it is immaterial as to which party offers the provocation or commits the first assault, going by the Explanation to that Exception.