Sridhar Bhuyan Vs. State
of Orissa  Insc 434 (9 August 2004)
Arijit Pasayat & C.K.
Thakker (Arising out of Slp (Crl.) No. 180/2004) Arijit Pasayat, J Leave
A Division Bench of the Orissa High Court confirmed conviction of the
appellant for offence punishable under Section 302 of the Indian Penal Code,
1860 (in short the 'I.P.C.') and sentence of imprisonment for life as awarded
by Learned Sessions Judge, Mayurbhanj, Baripada.
Prosecution version as unfolded during trial is as follows:
On 21.8.1988, Umakanta (brother of the appellant) teased Jayanti, the niece
of Chintamani Rout (PW-1), father of the Pratap (hereinafter referred to as the
'deceased'). On 22.8.1988 Pratap complained about the previous incident to his
father (PW-1) who asked him to wait till the arrival of Jayanti's father who
was away from the village. In the evening when Jayanti's father returned home,
the deceased along with Jayanti's father and Benudhar Rout (PW-5) went to the
house of the appellant to ascertain the reason for his having teased Jayanti.
As Umakanta was absent nothing could be decided. On the succeeding day i.e.
23.8.1988 morning, the deceased went to the house of the appellant to
ascertain whether his brother Umakanta had returned home. He also insisted that
the appellant and his brother Umakanta should come for a settlement of the
incident regarding teasing of Jayanti. As they refused, quarrel ensued there.
At this moment, the appellant went inside his house and came out with a knife
and dealt blows with it on the back of the deceased. When the deceased turned
his face, the appellant caught hold of his neck and pierced the knife into his
chest. PWs 4 and 7 who were present at the spot tried to save the deceased from
the appellant but could not succeed. The deceased who had fallen down near the
fence of Chakradhar Bhuyan was, however, taken to the village library where he
succumbed to his injuries.
In order to establish accusations, 8 witnesses were examined including PWs.
1, 4 and 7 who were claimed to be eye-witnesses. PWs. 5 and 6 deposed about the
alleged confession made by the appellant before them of having committed the
crime. Placing reliance on the evidence of eye-witnesses, learned Sessions
Judge found the accused guilty and convicted and sentenced him as aforenoted.
High Court did not find any infirmity in the conclusion by the Trial Court to
warrant interference. A plea was taken before the High Court that offence is
not covered by Section 302 IPC in view of the fact that the assaults were made
during a sudden quarrel. Though the High Court accepted that there was a
quarrel, it came to hold that Section 302 IPC has been rightly applied.
Learned counsel for the appellant submitted that even if the accusations of
the prosecution are accepted in toto a case under Section 302 IPC is not made
out, in view of the categorical findings recorded by the Trial Court and the
High Court that the assaults were made in course of a quarrel and conviction
should not have been done in terms of Section 302 IPC. According to him
Exception 4 to Section 300 IPC is applicable.
In reply, learned counsel for the State submitted that looking at the
factual scenario as projected by the prosecution witnesses, and the nature of
the injuries inflicted, the Trial Court was justified in recording conviction
under Section 302 IPC and the High Court has rightly dismissed the appeal.
For bringing in operation of Exception 4 to Section 300 IPC, 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.
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 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 4 as in Exception 1; 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' 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 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 turn 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 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 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
Considering the factual scenario, in the background of legal principles set
out above, the inevitable conclusion is that the case is not covered under
Section 302 IPC. The ingredients necessary to bring in application of Exception
4 to Section 300 IPC are present. The conviction is altered to Section 304 Part
Custodial sentence of 10 years would meet the ends of justice.
The appeal is allowed to the extent indicated.