,..

BYV ARAPU RAJU A

STA TE OF ANDHRA PRADESH AND ANR.

MAY28, 2007

[DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.]

Penal Code, 1860:

ss.300 Exception 4, 304 Part I and 201-Prosecution for murderc Conviction by Courts below u!ss. 302 and 201-0n appeal, held: Jn the facts of the case Exception 4 to s. 300 applicable-Hence conviction altered to under s. 304 Part I-Conviction uls 201 upheld

s. 300 Exception 4-Applicabi/ity of-Discussed.

s. 300 Exception I and Exception 4-Distinction between.

Words and Phrases-'Sudden fight' and 'undue advantage'-Meaning of in the context of s. 300 Exception 4 of Penal Code, I 860.

Accused 1 (appellant) and accused-2 (mother ofaccused-1) were charged E for having caused death of a person (father of accused-1 and husband of accused-2). According to prosecution, accused had told PW-6 and PW-2 that he and his mother had hacked the deceased as he had come in an intoxicated condition and was beating his mother (accused No.2). Trial Court convicted both the accused u/s 302 read with Section 34 and u/s 201 read with Section Fi 34 IPC. In appeal High Court acquitted Accused 2 of the charges and convicted the appellant-accused u/ss. 302 and 201 IPC.

In appeal to this Court appellant contended that since the incident took place during the course of sudden quarrel, Section 302 IPC had no application.

Partly allowing the appeal, the Court G

HELD: I. I. For bringing in operation of Exception 4 to Section 300 lPC ithas 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

815 H

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A having taken undue advantage and not having acted in a cruel or u11usual

manner. f Para 6) 1819-C-DI

1.2. The Fourth exception to Section 300 deals with a case of prosecution not covered by the first exception, after which its place would have bee11 more appr_opriate. The exception is fC)unded _upon the same principle, for i11 both B 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 reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception ''as in Exception 1; but th'e injury done is not the direct consequence of that C provocation. Jn fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in origin of the dispute or in whatever way the quarrel may have originated, yet the subs.:quent conduct of both parties puts them in respect of guilt upon equal footing. [Para 71181 !Jt..D-FI

D 1.3. A 'sdden fight' implies mutual provocation and blows on each side. _ The bomicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For it wcre so, the Exception more appropriately applicable would be Exception I. Tl11ere is no previous deliberation or determination to fight A fight suddenly takes place, E for which both parties are more or less to be blamed. It may be that cine 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 prov0<:ation and aggravatiQn, and it is difficult to apportion the share of blame vhich 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 F 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, llPC is not defined in the IPC. It takes two to make a fight Heat of passion requires G 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 wht?ther 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 wh1ether a quarrel is sudden or not must necessarily depend upon the proved fac:ts of H 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 A

~ 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'. !Para 711819-F-H; 820-ADI

Dhirajhhai Gorakhbhai Nayak v. State of Gujarat, (2003) 5 Supreme . 223 and Parkash Chand v. State of H.P., 12004111 SCC 381, referred to.

2. On the background facts, of the present case, the Exception 4 to Section 300 IPC applies. Therefore, the appropriate conviction would be under section 304 Part I IPC and not under Section 302 IPC. The conviction in terms of Section 201 IPC is well founded and does not warrant interference. The c conviction is altered from Section 302 IPC to Section 304 Part I, IPC.

I Para 811820-EI

. CRifyflNAL APPEL.LA TE JURISDICTION : Criminal Appeal No. 899 or' 2005. -

From the Final Judgment and Order dated 17.10.20~3 of the High Court D

of Andhra Pradesh at Hyderabad in Criminal Appeal No. 7 of 2002.

Bimal Roy Jad and Sunita Pandit for the Appellant.

D. Bharathi Reddy for the Respondents.

E The Judgment of the Court was delivered by

DR. ARIJIT PASA Y AT, J. I. Challenge in this appeal is to the judgment of the Division Bench of the Andhra Pradesh High Court holding the appellant guilty of offences punishable under Section 302 and Section 20 I of the Indian F Penal Code, 186.0 (in short the 'IPC'). Before the High Court challenge was to "i the judgment of the learned Ilnd Additional Sessions Judge, West Godavari, Eluru whereunder appellant and his mother were found guilty of offences punishable under Section 302 read with Section 34 IPC and Section 20 I IPC read with Section 34 IPC. Each was sentenced to undergo imprisonment. for life and pay a fine of Rs.1,000/- with default stipulation for the first offence G. and 5 years imprisonment and.fine of Rs.500/- with default stipulation for the latter offence.

2. Background facts in a nutshell are as under:

Koduri Kasiviswanadham (PW-2) is having some agricultural lands at H,

A Mallavaram. There is a farmhouse containing one room in his fields. Byvarapu Raju (A-1) was working as a farm servant since I I /2 years prior to the. incident. The deceased who is no other than the father of A-1 used to come along with him. Nagamani (A2) was the wife of• the deceased. The de1; eased was th~ resident of Paderu in Visakhapatnam district. On 29.2.1996 both the accused and Venkatarao (hereinafter referred to as the 'deceased') were B quarreling with each other at the farmhouse and at about 12.00 midnight.

Bolla Venkat Rao (PW6) heard cries from the farmhouse of PW2, and when he enquired from Al, he informed that his father came in an intoxicant condition asking him and his mother (A2) to come to Pederu and was beating A2 and therefore they both beat the deceased. PW6 went to the house of PW2 and C informed about the same. PW2 along with some other witnesses went to farmhouse and at that time both the accused were ready having packed their luggage to leave the place. Then PW2 questioned the accused, for which Al stated that his father came in an intoxicant condition and was beating his mother (A2) and in course of the quarrel he hacked his father with "Yerukalakatti" and A2 also hacked the deceased. Thereafter both the ac:cused D showed the dead body, which was in the field of sugar cane garden of Cina

Venkat Rao (PW9). PW2 sent a word to the Village Administrative Officer.

Thereafter he gave Ex.P7 report to the police on l.3.1996 at 5A.M. PWB who received Ex.P7 report, registered a case under Section'302 read with Section 34 IPC. PWl5 took up investigation. By the time he went to Chagallu :Police E Station, both the accused were present in the police station. Thereafter Al led him and the mediators to the "Makamshed" of Viswanadham and produced the bloodstained knife, bloodstained T-Shirt and Lungi and they were seized under Ex.P3. PWI 5 prepared Ex.P4 observation report and seized M.Os. 7 and 8 (control earth and bloodstained earth). Thereafter he visited the place where the dead body was found lying and declaration report was drafted. At that F place, he seized bloodstained earth and control earth. Thereafter he held inquest on the dead body of the deceased from 10.30 a.m. to 1 p.m. in the presence of PWI and another and examined the witnesses. After inquest, the dead body was sent to post mortem examination. PWlO conducted autopsy and found 13 injuries. He opined that the deceased died of shock due to G hemorrhage on account of injury to vital organs. After completion. of ·

investigation, PW 15 filed a charge sheet. To support the case of the prosecution, it examined 15 witnesses and marked 21 documents besid4!S the case properties M.Os.1 to 11. Accused persons pleaded innocence.

3. Considering the evidence on record the trial Court ordered conviction H and sentence as afore-stated. In appeal before the High Court A-2 i.e. mother

of the accused was found not guilty and it directed her acquittal. However, A the conviction and sentence so far as accused-appellant who was separately charged under Section 302 and 201 IPC is concerned was maintained .

4. In support of the appeal, learned counsel for the appellant submitted that the prosecution version as unfolded during trial shows that the incident took place during the course of a sudden quarrel and, therefore, Section 302 B lPC has no application.

5. Learned counsel for the respondent-State on the other hand supported the judgments of the trial Court and the High Court.

6. For bringing in operation of Exception 4 to Section 300 lPC 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.

C l

7. The Fourth Exception of Section 300, lPC covers acts done in a D 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 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 reasons 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 direet consequence of th'at 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 F 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 G 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 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 H

A if death is caused (a) without premeditation, (b) in a sudden fight; (c) wi:thout 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 Exceptfon 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion B requires that there must be no time for the passions to cool down and in this case, the parties have wqrked 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 enunciat1~ any general rule as to what shall be deemed to be a sudden quarrel. It is a C question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application ofExcejption 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'. These aspects D have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujarat,

(2003] 5 Supreme 223 and Parkash Chandv. State of HP., (2004] 11SCC381.

8. On the background facts considered in the light of the principles set out above, it is clear that to the present case the Exception 4 to Section 300 E . IPC applies. Therefore, the appropriate conviction would be under Sec:tion

304 Part I IPC and not .under Section 302 IPC; The conviction in tem1s of Section 20 I IPC is well founded and does not warrant interference. In the ultimate conclusion, the appeal is allowed to the aforesaid extent by altc:ring the conviction from Section 302 IPC to Section 304 Part I, IPC. The custodial sentence of IO years would meet the ends of justice.

K.K.T.

Appeal Partly allowed.