PAPPU

STATE OF MADHYA PRADESH

JULY 11. 2006

[ARIJIT PASA Y AT AND S.H. KAPADIA. JJ.]

Penal Code, 1860:

Section 300, Exception 4-Sudden quarrel betll'een complainants' side C and acc11sed persons-One of the accused giving a single lat hi blow on head of his opponent and another causing injuries on his left hand-Injured died the following day in hospital-Conviclion by trial court u/s 30213./-High

Co11rt convicting one accused uls 302 and anolher u/s 323-Remaining accused acq11it1ed-Appeal by life convic1-Plea of applicability of Exception-4 to D S. 300 raised-Held, it would be appropriate lo convict appel/a/1/-accused 11/ s 30./ (Part ff)-lngredienrs of Exceprion-./ ro S.300 explained.

In a marriage in a village an altercation and exchange of hot words took place between complainant and his father on the one side and the accused on the other. Suddenly, accused 'P' gave a lathi blow on the head E of the father of the complainant. Another accused 'M' is also said to have caused injury on his left hand. The incident was witnessed by the complainant (PW2), wife of the injured (PW3) and (PWS). The injured was taken to the Primary Health Center. The doctor (PW 6) prepared the medical report and as the injured was in coma, referred him to the District F Hospital where the injured died the following day. Accused 'P', 'M' and three others were prosecuted for offences punishable under Sections 302/ 34, 294/34 and 506(2)/34 IPC. The trial court convicted them u/s 302/34

IPC. On appeal, the High Court held that conviction of accused 'M' u/s 302/34 IPC was not maintainable and convicted him u/s 323 IPC.

Conviction of accused 'P' was altered from one u/s 302/34 to S.302 IPC.

G The remaining accused were acquitted. Aggrieved, the life convict filed the present appeal.

It was contended for the appellant that the prosecution case indicates that only one lathi blow was given by the appellant in the course of a

PAPPU v. STATE OF MADHYA PRADESH 395

sudden quarrel and as there was no premeditation nor the accused took A any undue advantage or acted in a cruel manner, the act attributed to the appellant falls under Exception-4 to Section 300 IPC.

Allowing the appeal in part, the Court

HELD: I.I. The help of Exception-4 to Section 300 IPC can be B invoked if death is caused (a) without premeditation, (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 to have been established. It is to be noted that the 'fight' c occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion require~ that there must be no time for the passions to cool down and in this case, te parties have worked themselves into a fury on account of the verbal alter ation in the beginning.

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 D 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'. (399-B-E)

1.2. It cannot be laid down as a rule of universal application that whenever one blow is giveq, Section 302 IPC is ruled out. It would depend E upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body where it was given and several such relevant factors. [399-FJ

1.3. Considering the factual background in the instant case it will

F be appropriate to convict the appellant under Section 304 (part II) IPC, instead of Section 302 IPC as has been done by the trial court and affirmed by the High Court. Custodial sentence of eight years would meet the ends of justice. (399-G I

CRIMINAL APPELLATE JURISDICTION: Criminal Appe~I No. 751 G of 2006.

~' From the Judgment and Order dated 27.7.2005 of the High Court of Madhya Pradesh (Indore Bench) in Criminal Appeal No. 590/2005.

Dinesh Kumar Garg for the Appellant.

H ..

A Siddhartha Dave and Vibha Datta Makhija for the Respondent. ,.

The Judgment of the Court was delivered by

ARIJIT PASA YAT, J. Leave granted.

B Challenge in this appeal is to the correctness of judgment rendered by a Division Bench of the Madhya Pradesh High Court, Indore Bench. By the impugned judgment conviction of the appellant for offence punishable under Section 302 of Indian Penal Code, 1860 (in short '!PC') and sentence of RI for life and fine of Rs.500/- imposed by the trial Court were maintained. c Background facts in a nutshell are as follows:

On 26.5 .2004 in village Teki marriage function of the daughter of one Rama was going on. In the said marriage function, Rama invited complainant ...

Madhu Singh (PW-2) and his family members. In the afteriioon between 3 to 4 p.m. father and mother of the complainant i.e. Mal Singh (hereinafter D referred to as the 'deceased') and Sajan Bai, went to the house of Rama for taking meals. At that time the complainant Madhu Singh was sitting and taking his meal and his father was going to another room for taking meal. At that juncture accused Bondar, his son accused Pappu i.e. the present appellant and Munna reached there, abused Mal Singh and asked him as to who had E invited him. There was exchange of hot words and altercations took place.

Suddenly, appellant Pappu dealt a lathi blow on the left side of the head of the deceased Mal Singh. Accused Munna also caused injury on left shoulder and left hand of Mal Singh. Because of blow by lathi, Mal Singh fell down on the ground. At that moment Madhu, Ban Singh and Sajjan Bai witnesses rushed to save deceased Mal Singh. The deceased fell down uriconscious F because of the injuries. The appellant and other accused persons threatened the complainant and others and fled away from the scene of the occurrence.

The incident was witnessed by Ban Singh (PW-5), Sajjan Bai (PW-3), Madhu (PW-2) and Kamlabai. PW-2 lodged the report (Exhibit P-2) on the same day in the night about 8 p.m. at Police Station Baag. His report, (Exhibit P-2),

G was recorded by Inspector K.C. Pathak (PW-7). On the basis of the report

Crime No.90/04 under Sections 307 and 294/34 IPC was registered. Injured Mal Singh was sent for medical examination to Primary Health Centre Baag, ... where he was attended by Dr. H.S. Muvel (PW-6). Dr. Muvel found only three external injuries on the person of the deceased vi de his medical report (Exhibit P-12). Injured Mal Singh was immediately referred by letter, Exhibit H P-13, for further treatment to District Hospital, Barwani because at that time

PAPPU v. ST A TE OF MAD HY A PRADESH [PASAYA T, J.) 397

c he was in coma. Further investigation was done by S.P. Singh Sisodiya (PW- A I 0), and the Station House Officer. He prepared spot map, (Exhibit P-3) and effected seizure of Terricot Kurta, Dhoti and Shawl from the house of the deceased Mal Singh. The injured died in the District Hospital, Barwani on 27.5.2004. Intimation to this effect was sent to the police. Thereafter, the police prepared inquest report and sent the deceased for postmortem B examination. Postmortem was performed by Dr. Deepak Mayeriya (PW-9).

On completion of investigation, the charge-sheet was filed indicating commission of offences punishable under Sections 302, 294/34 and 506(2)/ 34 of the !PC against the appellant and other accused persons.

The accused persons denied the charges and pleaded their innocence. c Therefore, they were put to trial. They examined Laxman (DW-1), Ram Singh (DW-2) in their defence. The learned Court convicted and sentenced the appellant and other co-accused for commission of offence punishable under Section 302 read with Section 34 !PC.

Before the High Court it was pleaded that the incident had occurred all D of a sudden without any pre-mediation over a very trivial issue and some misunderstanding of the appellant, other accused persons and the complainant Madhu Singh and his father Mal Singh. During the course of verbal altercation, the present appellant picked up a Iathi and gave a blow. The prosecution witnesses PW-2, PW-5 and others tried to assault the appellant. It was E submitted that against accused Neelabai the prosecution had changed its stand from time to time. Name of accused Govind and Leelabai were not mentioned in the first information report lodged by Madhu (PW-2).

So far as the accused Bonder is concerned, it was stated that he had

-1 abused the prosecution witness who claimed to be eye-witnesses. The fatal F blow was attributed to the appellant, while rest of the injuries found on the person of the deceased, in the opinion of the doctor (PW-9), were simple in nature and the same did not contribute to the cause of death of the deceased.

Therefore, it was submitted that a case under Section 302 !PC was not made out.

G Stand of the State on the other hand was that looking to the number of injuries and the nature thereof i.e. on the head and other parts of the body, conviction has been rightly recorded. Because of the acts of the accused persons, deceased had died on the next day in the hospital. . ' High Court after analyzing the evidence came to hold that conviction H

A of accused Munna under Section 302 read with Section 34 !PC was not maintainable and he was instead of convicted under Section 323 IPC.

Conviction of accused Bondar, Govind and Leelabai under Section 302 read with Section 34 IPC was set aside and they were acquitted. Conviction of present appellant was altered from Section 302 read with Section 34 !PC to Section 302 IPC.

In support of the appeal learned counsel for the appellant submitted that the background facts projected by the prosecution clearly show that the assault was given in the course of a sudden quarrel. There was no premediation and the accused did not take advantage and had also not acted in C a cruel manner. Only one blow by lathi was allegedly given by picking up a lathi. Prior to that he was not armed. In any event only one blow was given.

In essence it was submitted that Section 302 IPC has no application and in essence Fourth Exception of Section 300 !PC applies.

Per contra, learned counsel for the respondent-State supported the D judgment of the High Court.

The pivotal plea relates to the applicability of Exception 4 of Section

300 IPC.

For bringing in its operation it has to be established that the act was E 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.

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 F 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 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 G not otherwise do. There is provocation ln 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 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' H implies mutual provocation and blows on each side. The homicide committed

PAPPUv. STATE OF MADHYA PRADESH [PASAYAT, J.] 399

is then clearly not traceable to unilateral provocation, nor in such cases could A the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception I. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both patties 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 B taken the serious tum 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'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 C 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 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 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 E 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'.

It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 !PC is ruled out. It would depend upon the F weapon used, the size of it in some cases, force with which the blow was given, part of the body it was given and several such relevant factors.

Considering the factual background in the case at hand it will be appropriate to convict the appellant under Section 304 Part II IPC, instead of Section 302 !PC as has been done by the trial court and affirmed by the High G Court. Custodial sentence of eight years would meet the ends of justice.

The appeal is allowed to the aforesaid extent.

R.P.

Appeal partly allowed.