DHIRAJBHAI GORAKHBHAI NAY AK

STATE OF GUJARAT

JULY 25, 2003

[DORAISWAMY RAJU AND ARIJIT PASA YAT, JJ.]

Penal Code, 1860: Section 300 Exceptions I and 4 and Section 3021 Criminal Trial:

Murder-Deceased succumbed to injuries inflicted by the accused- Trial Court convicted and sentenced him to life imprisonment-Affirmed by the High Court-On appeal, Held: Merely because name of one of the prosecution witnesses/eye witnesses did not figure in the FIR though it was lodged immediately after commission of the crime, that is not a suspicious D circumstance-Besides, psychic trauma/mental condition of witnesses and the close relatives of the deceased, can not be lost sight of-Testimony of the witnesses rightly found credible and cogent by the courts below-No infirmity therein was shown by the accused-Hence, evidence of the witnesses rightly relied upon by the courts below in convicting the accused

E Exception l and 4 to Section JOO-Distinction between-Discussed

Evidence Act, 1872:

Medical evidence vis-a-vis ocular evidence-Discrepancy between- Held, When there was no discrepancy in the opinion of the doctors, one who F examined the deceased at the entry in the Hospital and the other who conducted post-mortem, it is not appropriate to exclude evidence of eyewitnesses on this count.

Words and Phrases:

G 'fight', 'quarrel', 'undue advantage'-Meaning of. in the context of Exceptions I and 4 to Section 300 /PC.

Accused-appellant allegedly assaulted the deceased when he was sleeping along with his friend in the varandah of his house. On hearing the cries, his wife and son came out and raised an alarm. Accused fled away. Neighbours fl 754

D.G. NAY AK v. ST A TE OF GUJARAT 755

came to their rescue and they had taken the deceased to a hospital, where he A succumbed to his injuries. An FIR was lodged immediately. Police, after investigation of the matter, submitted the charge-sheet. Trial Court found accused guilty of committing an offence punishable under Section 302 IPC and sentenced him to.life imprisonment. High Court upheld the conviction and sentence. Hence the present appeal.

It was contended for the appellant that the wife (PW I) and friend (PW8) of the deceased, had illicit relationship and they themselves had assaulted the deceased which resulted in his death; that medical evidence established that

the injury received by the deceased could not have been caused by the weapon claimed to be the weapon of assault; that name of PW3, son of the deceased, C was absent in the FIR; that the blood stained clothes were not seized by the police; that the evidence of PW2, who resiled from his statement during investigation need not necessarily be wiped out completely and portion of the evidence which supports the case of prosecution/defence could be considered; that since crime was committed at dark night, claim of the wife and son of the deceased that they saw the accused assaulting the deceased was unacceptable; D and that even on accepting the prosecution case, Exception 4 to Section 300 is applicable since assaults were made in the course of a quarrel between accused and the deceased.

On behalf of the State, it was submitted that since evidence of the son and wife of the deceased had not been shaken in spite of the incisive crossexamination, courts below rightly found their evidence reliable; that the medical evidence is not at variance with cogent ocular evidence; and that motive is not a determinative factor to decide about commission of a crime.

Dismissing the appeal, thr Court

HELD: 1.1. The First Information Report was lodged almost immediately after the occurrence of the crime. The. mental condition of the person who

has just seen a close relative, the bread•earner, losing his life cannot be lost sight of. The psychic trauma cannot be ignored. Merely because the name of PW3 did not figure in the First Information Report, that is not a suspicious G circumstance. Evidence of PWs I and 3 has been analysed by both the Trial Court and the High Court minutely and found to be credible and cogent.

Nothing infirm therein could be shown to weaken their acceptability and reliability. The Trial Court and the High Court were justified in placing reliance thereon.1759-F, HI

A Sri Bhagwan v. State of Rajas than, (2001 ( 6 sec 296, relied on.

1.2. PW2 has been rightly described as untruthful by the Trial Court and the High Court He accepted to have come near the house of the deceased on hearing shouts of PWl, wife of the deceased. But he stated that he did not enquire how he died and who was the assailant. This conduct was to say the B least most unusual and abnormal. It was not because he was shocked and, therefore, did not ask. He does not say so. On the contrary, he described in graphic detail about alleged illicit relationship between PWl and PW8.

(760-A-BJ

C 1.3. There is no discrepancy in the medical evidence vis-a-vis ocular evidence. Only in respect of injury no.I, there appears to be some confusion but that does not dilute the prosecution evidence. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses account which has to be tested independently and not treated as "variable" keeping in view the medical evidence as "constant".

(760-D-EJ

State of UP. v. Krishna Gopal and Anr., AIR (1988) SC 2154, relied on.

1.4. Fourth Exception of Section 300 IPC covers acts done in a sudden fight. It deals with a case of prosecution not covered by the first Exception, E 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.

F There is provocation in Exception 4 as in Exception l; but the injury done is not the direct consequence of that provocation. The homicide committed after a sudden fight is 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. To bring a case within Exception 4 to Section 300 IPC all the ingredients mentioned therein G must be found. It is to be noted that the 'fight' occurring in the said Exception is not defined in the 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 the present 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 and more persons whether with or without weapons. It is not possible to enunciate any general H

D.G. NA YAK v. STAT20FGUJARAT[PASAYAT, J.] 757

rule as to what shall be deemed to be a sudden quarrel. It is a question of fact A 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'. The provision has no application B to the facts of the present case.1760-F-H; 761-A-F)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 870 of 2002.

From the Judgment and Order dated 5.12.2001 of the Gujarat High Court C in Crl. No. 186of1995.

A.T.M. Rangaramanujam and Lalit Chauhan, for M/s. P.H. Parekh & Co. for the Appellant.

Yashank Adhyaru, Ms. Monica Bapna and Ms. Hemantika Wahi for the D Respondent.

The Judgment of the Court was delivered by

ARIJIT PASA Y AT, J. One Hasmukhbhai Patel (hereinafter referred to as 'the deceased') was the victim of homicidal death on 12.8.1993. The appellant E Dhirajbhai was alleged to be the assailant. The learned Additional Sessions Judge, Surat, held him guilty of offence punishable under Section 302 of Indian Penal Code, 1860 (for short 'IPC') and sentenced to suffer imprisonment for life and to pay fine of Rs. 2000 with default stipulation. It was "urther directed that in case fine is paid, the same is to be paid to the deceased's F widow Dahiben as compensation. Appeal before the High Court of Gujarat did not bring any relief to the accused-appellant and by the impugned judgment conviction and sentence were upheld.

Accusations which led to trial of the accused-appellant are as follows:

Dahiben (PW I) and the deceased were staying in house No. 7/1427 situated in Dhastripuara in the city of Surat with her two sons Dhanesh (PW

3) and Narendra. About I 0 days prior to the date of occurrence accusedappellant had taken his small daughter to the in-law's house and have kept her there. On his return, the deceased scolded him for leaving a small child

A at a distant place and the accused was very angry for this interference in his personal matters and that led to quarrels - first verbal and then physical.

Subsequently on the date of occurrence at about 1.30 p.m. when the deceased was sitting at a temple accused-appellant warned him and challenged him saying that if he wanted to fight he was ready for the same. This resulted in B exchange of words and a fight. Resident of the locality and PW! separated them. In the evening Naranbhai (PW8), a friend of deceased came to the house of deceased and told Dahiben that since the quarrel was going on in the house, he would take the deceased for seeing a movie. PW I agreed and both PW8 and deceased went to see a movie late in the night. As it was mid night when they got back, PW8 and deceased slept on the verandah of the C house while PW! and 3 slept inside the house. At about 4.00 p.m. in the morning on hearing shouts for help PW! opened the door and went outside.

In the meantime PW3 also woke up and he joined his mother outside the house. They saw the deceased in bleeding condition. They also found the accused-appellant delivering blows on the deceased. PW! called out his name D and asked him as to why he was doing this and if there was any problem, that could be sorted out in the morning. The appellant on hearing this immediately ran away. PW- I went out and asked for help from the neighbours.

Many of them came to her house. The deceased was taken to hospital where he breathed his last at about 4.45 a.m. First information report was lodged at the police station at 5.15 a.m. Investigation was undertaken and charge sheet E was placed on completion of investigation. Ultimately, the matter came to trial by learned Additional Sessions Judge, Surat. Ten itnesses were examined to further the prosecution version. Testimony of PWs I and 3 was accepted to be credible and as noted above, learned Trial Judge convicted and sentenced the accused. The High Court in appeal, did not interfere.

F Learned counsel for the appellant submitted that the Trial Court as well as the High Court lost sight of certain salient features of the case. The accused has taken a definite plea that PW I and PW8 were the authors of the crime as they had an illicit relationship which was not liked by the deceased.

On the night of occurrence they attacked the deceased and his life was G snuffed out. Strong reliance was placed on the evidence of PW2 who resiled from his statement made during investigation. It was submitted that evidence of such witness is not necessarily to be wiped out and that portion of evidence which helps either the prosecution or the defence can be taken note of. Presence of Dhanesh (PW3) at the spot is clearly ruled out the evidence of PWI. Additionally the medical evidence more particularly testimony of Dr.

H Rajivbhai (PW7) clearly establishes that the injury which is stated to have

D.G. NAY AK v. STATEOFGUJARAT[PASAYAT, J.) 759

been caused by the accused could not have been caused by the weapon A claimed to be the weapon of assault. The name of PW3 being absent in the FIR, his presence is doubtful. Though PWI claimed that her clothes and those of PW8 were blood stained, when they tried to carry the deceased in injured condition to the hospital, the said apparels were not seized by the police and this has been accepted by the Investigating Officer. It was pointed B out that the evidence of witnesses clearly shows that it was a dark night and it was impossible to see anything. So the claim of PW I and PW3 that they saw the accused-appellant assaulting the deceased is clearly unacceptable.

It was also submitted that if the prosecution case is accepted in its totality, Exception 4 to Section 300 is clearly applicable as alleged assaults C were made in course of a quarrel. Motive for the crime as claimed by the prosecution is too fragile to warrant acceptance.

Per contra, learned counsel for the State of Gujarat submitted that both the Trial Court as well as the High Court have found version about alleged illicit relationship between PW! and PWS to be a myth and figment of D imagination. Evidence of PW! and PW3 has not been shaken in spite of the incisive cross-examination. The courts below have rightly placed reliance on their evidence. Medical evidence is in no way at variance with ocular evidence and in any event the ocular evidence being cogent has been rightly accepted.

The case is clearly covered by Section 302 !PC and Exception 4 to Section 300 has no application. Motive is not a determinative factor to decide whether E a crime has been committed or not.

The rival contentions need careful consideration.

Coming to the plea that name of PW3 does not appear in the First Information Report, it has to be noted that death took place, according to F medical records, at about 4.45 a.m. and the First Information Report was lodged at about 5.15 a.m. In other words the First Information Report was lodged almost immediately after the occurrence. As observed by this Court in Sri Bhagwan v. State of Rajasthan, [200 I] 6 SCC 296 the mental condition of the person who has just seen a close relative, the bread-earner loose his G life cannot be lost sight of. The psychic trauma cannot be ignored. Merely because PW3 's name did not figure in the First Information Report, that is not , . a suspicious circumstance. Evidence of PWs I and 3 has been analysed by

" both trial Court and High Court minutely and found to be credible and cogent.

Nothing infirm therein could be shown to weaken their acceptability and reliability. The Trial Court and the High Court were justified in placing reliance H

A thereon.

Coming to the evidence of PW2 on which reliance has been placed by the learned counsel for the accused-appellant, he has been rightly described as untruthful by the Trial court and the High Court. He accepted to have come near the house of the deceased on hearing shouts of Dahiben. But he stated B that he did not enquire how he died_ and who was the assailant. This conduct was to say the least most unusual and abnormal. It was not because he was shocked and, therefore, did not ask. He does not say so. On the contrary, he describes in graphic detail about alleged illicit relationship between PWI and PW8. The Trial Court has rightly observed that he has tried to create a smoke C screen. As regards the alleged discrepancy between medical evidence and ocular evidence it is to be noted that a combined reading of the evidence of PW9 who examined the deceased after he was brought to the hospital and PW7 who conducted the post-mortem, it is clear that there is no discrepancy in the medical evidence vis-a-vis ocular evidence. Only in respect of injury no.I, there appears to be some confusion but that does not dilute the D prosecution evidence. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye witnesses account which has to be tested independently and not treated as "variable" keeping in view the medical evidence as "constant". [See State of UP. v.

Krishna Gopal and Anr., AIR (1988) SC 2154].

E The residuary plea is about applicability of Exception 4 to Section 300.

For bringing in its operation 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 F and not having acted in a cruel or unusual manner.

The Fourth Exception of 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 G of premeditation. But, while in the case of Exception I 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 I; 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 H struck, or some provocation given in the origin of the dispute or in whatever

D.G.NAYAKv. STATEOFGU.IARAT[PASAYAT, J.] 761

way the quarrel may have originated, yet the subsequent conduct of both A 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 B 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 v. ·)ulJ 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 attache' to each fighter. The help ofException 4 can be invoked if death is caused (a) without premeditation, C

(b) in a sudden fight; (c) without the offender's 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 the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions D 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 and 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 E 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'.

The provision has no application to the facts of present case.

When the factual background established by the materials on record is tested with the legal principles indicated, the inevitable conclusion is that the appeal is without merit and deserves dismissal. We direct so.

S.K.S.

Appeal dismissed.