Vadla Chandraiah Vs. State of A.P  Insc 918 (7 December 2006)
Sinha & Markandey Katju
out of SLP(Crl.) No.5281/2006) S.B.SINHA, J.
17.10.2000, at about 3.30
p.m., the deceased Manik
Rao, a police constable, was walking down the street. P.W.8 (B.Narasimha) was a
vendor of guava. Manik Rao picked up four guavas from his vend but did not pay
the price thereof. On being asked to do so, he allegedly said that the same
would be paid latter. The appellant together with his son were doing some
carpentry work on the same street. Apparently, a quarrel took place between
P.W.-8 (B.Narasimha) and the said Manik Rao. The appellant and his son
intervened. The quarrel continued for 10-15 minutes. Allegedly, Appellant
hacked the deceased Manik Rao with a badze (a heavy sharp axe like instrument
used in the carpentry work) causing instantaneous death of the deceased.
Appellant together with his son were charged for commission of murder of the
said deceased Manik Rao.
prosecution, in support of its case, examined four eye witnesses.
(V.Narasimha Rao), presence on the scene however, has been doubted by the
learned trial judge. Learned Sessions Judge and the High Court have relied upon
P.W.-2 to P.W.-4 (V.Damodar Rao, K.Narayana & Kammeta Anjaiah) to arrive at
a conclusion that it was the appellant alone who had caused the aforementioned
injuries to the deceased Manik Rao. Accused Nos. 1 and 3, who were the father
and brother of the appellant, were acquitted.
principal question which arises for our consideration is to whether in the
aforementioned peculiar facts and circumstances of this case, the appellant can
be said to have committed the offence punishable under Section 302 I.P.C. or
under Section 304 Part-II thereof.
view of the limited notice issued in this case, we would proceed on the basis
that the appellant alone who had caused injuries to the deceased Manik Rao.
however, we advert to the legal question as regards the nature of offence, we
may notice that P.W.-15 (Dr.M.Pavan Kumar) in his evidence on the basis of
post-mortem examination report prepared by Dr.O.Butchi Babu Reddy stated that
the following anti-mortem injuries were found on the dead body of Manik Rao :-
"1. Elliptical shaped penetrating incised wound with a length of 6 c.ms on
either side, a diametre of 2 1/2 c.m at the centre and a depth of 8 c.ms
extending upto the meninges on the left temporal region. Hematoma present below
the mesninges. (Diagram was drawn).
Elliptical shaped incised wound adjoining the left clavical (with no fracture
of clavical) present on the left side of anterior aspect of neck extending upto
stomclavical joint on left side of 6 c.ms. on either side and a diametre of 2
1/2 c.m. at the centre and a depth of 10 c.ms. with bleeding cutting through
left carodids and all the great vessels of neck on left and also left bronchus.
Bleeding extending upto left hilem.
clearly incised triangular shaped injury measuring 7 c.ms., 6 c.ms and 3 1/2 c.ms
(triangle) and a depth of 4 c.ms. without the skin collaped and exposing
external oblic and deltoid and other mussels groups with blood clots on them on
the anterior aspect of left shoulder.
Incised wound 6 c.ms. X 2 c.ms. X 2 c.ms. on the left side of back with blood
clots in the muscles." The High Court, in its Judgment, refused to accept
the plea of the appellant herein that the offence committed by him would not be
one under Section 302 I.P.C. but under Section 304 Part-II thereof in the
following words :- "The learned counsel for the appellant further contends
that there is no motive for the appellant/accused no.1 to attack the deceased,
and that there is inconsistency in the prosecution evidence i.e. P.W.8, that it
was the accused no.2 that interfered first when the deceased refused to pay the
price for the guava fruits and so, the case of the prosecution cannot be
accepted. This discrepancy is not that much material nor is a ground to
disbelieve the prosecution case regarding participation of the appellant/accused
no.1. It is not known whether apart from the incident of deceased not paying
price for the guava fruits, the accused had any other motive. In
Ex.P-1/complaint, it is just referred that on account of grudge, the deceased
there is no clear evidence with regard to the grudge. When there is
overwhelming evidence regarding participation of accused no.1, establishment of
grudge is of no consequence. Thus, in view of the evidence of P.W. 2 to P.W.4,
who are eye witnesses to the incident, and as there is no dispute over the
sudden death of the deceased we are not inclined to accept the contention of
the learned counsel for the appellant that the appellant/accused no.1 is not
responsible for the injuries that caused the death of the deceased." A
bare perusal of the said findings of the High Court would clearly show that
there has been a total misappreciation of evidence on its part and a wrong
question had been posed. Participation of the appellant was not in dispute.
of motive was. Once it was found that there had been no clear evidence with
regard to `grudge' the court should have taken the same to its logical end.
question which was thus required to be posed and answered was whether in the
absence of any motive and in particular the fact that the appellant was not
even known to the deceased, the fight which took place was a sudden one and the
injuries were inflicted in heat of passion and thus a case under Section 304
Part-II I.P.C. was made out or not.
said contention of the appellant was sought to be answered by the High Court stating
:- "It is strenuously argued by the learned counsel for the appellant that
even assuming that accused no.1 caused the injuries on the deceased, no offence
punishable under Section 302 IPC is constituted and that it was a case of
sudden flash, where the appellant/ accused no.1 attacked the deceased, and such
being the case, the offence has to fall under Section 304 Part I or II IPC. We
are not inclined to accept this contention either, as there was altercation
between the deceased and the accused, which went on for about 10 to 15 minutes,
and the evidence of P.W.-15, who spoke about the post mortem examination, shows
that the deceased suffered as many as four injuries with a heavy weapon like Badze.
If it was a case where in a sudden fight the accused attacked the deceased and
caused an injury, there was possibility of accepting the contention of the defence
that no offence punishable under Section 302 IPC is constituted." If the
quarrel continued for a long time, it would be presumed that there was no
premeditation. If on an issue the appellant quarreled with a constable who
might have been of the opinion that he was not required to pay for the fruits,
tampers run high because of the attitude of the deceased.
issue as to whether the case would fall under Section 302 IPC or under Section
304 Part-II thereof or not should be judged keeping in view the aforementioned
factual backdrop. For the said purpose, the term `evidence brought on records'
must be considered in its entirety.
deceased Manik Rao was a constable. He took up four guava fruits which P.W.-8 (B.Narasimha)
was selling. P.W.-8 (B.Narasimha) and the deceased must have fought for payment
of price. Appellant who along with his two sons had been carrying on carpentry
work must have come to the rescue of P.W.-8 (B.Narasimha). While doing so, a
quarrel must have ensued which even, according to the prosecution witnesses,
continued for 10 or 15 minutes. If that be so, the question is if the
appellant's being any grudge as against the deceased or there being no cause
for sudden provocation would not arise. Appellant was only having his tool. He
was not otherwise armed. The tool in his hand was required to be used in his
might have been used to cause injuries but sudeen provocation therefor may not
be much in doubt.
notice that in the post-mortem report, Dr.O.Butchi Reddy did not state that the
injuries inflicted on the deceased by the appellant were sufficient in ordinary
course of nature to cause death or likely to cause death. In Shivappa 13 SCC
168, a Division Bench of this Court in a case where there had been no such
opinion on the part of the doctor who had conducted the post-mortem examination
We need not dilate further on this aspect as it is not the prosecution case
that the appellant was responsible for causing any injury other than Injury
(1). If so, it is fairly clear that the injuries to occipital region as well as
the thorax injury which caused damage to the ribs and lungs are both severe
injuries and according to the medical evidence both these injuries cumulatively
is no evidence of the medical expert to the effect that Injury (1) by itself
would have caused instantaneous death as has happened in this case or that
Injury (1) by itself was sufficient in the ordinary course of nature to cause
death. No doubt Injury (1) is a severe injury on a vital part and in all
likelihood, it could cause death. Yet, it is difficult to extricate the impact
of an equally severe injury which was found to be present on internal
examination. In these circumstances, it is not safe to draw a conclusion that
the injury inflicted by the appellant, if at all it was intended to be inflicted,
by itself would be sufficient in the ordinary course of nature to cause death.
On the state of medical evidence we have, it is not possible to draw such
definite conclusion. Considering the nature of the injury and weapons used and
the circumstances in which the injury came to be inflicted, we are of the view
that the appellant shall be imputed with the knowledge that the injury
inflicted by him was likely to cause death. He is therefore liable to be
convicted under Section 304 Part II." We may now examine the ingredients
of the provisions of Section 300 of I.P.C. which reads as under:-
Murder.- Except in the cases hereinafter excepted, culpable homicide is murder,
if the act by which the death is caused is done with the intention of causing
death, or- Secondly.- If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the person to
whom the harm is caused, or- Thirdly.-If it is done with the intention of
causing bodily injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly.-If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury
as is likely to cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as aforesaid." In this
case, Part-I of Section 300 is not attracted as it is beyond any doubt or
dispute that the death was not caused with an intention to that effect.
appended to Section 300, would be attributed if the person committing the act
knows that it is so imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or such injury
as aforesaid that will attract Section 300 of the Indian Penal Code.
Singh vs. State of Haryana, (2002) 3 SCC 327, wherein two fatal
blows were inflicted by the appellant therein by a bhala on the upper right
portion of chest of the deceased, this Court opined:-
The High Court has also found that the occurrence had taken place upon a sudden
quarrel but as the appellant was found to have acted in a cruel and unusual
manner, he was not given the benefit of such exception. For holding him to have
acted in a cruel and unusual manner, the High Court relied upon the number of
injuries and their location on the body of the deceased. In the absence of the
existence of common object, the appellant cannot be held responsible for the
other injuries caused to the person of the deceased. He is proved to have
inflicted two blows on the person of the deceased which were sufficient in the
ordinary course of nature to cause his death. The infliction of the injuries
and their nature proves the intention of the appellant but causing of such two
injuries cannot be termed to be either in a cruel or unusual manner. All fatal
injuries resulting in death cannot be termed as cruel or unusual for the
purposes of not availing the benefit of Exception 4 of Section 300 IPC. After
the injuries were inflicted and the injured had fallen down, the appellant is
not shown to have inflicted any other injury upon his person when he was in a
helpless position. It is proved that in the heat of passion upon a sudden
quarrel followed by a fight, the accused who was armed with bhala caused
injuries at random and thus did not act in a cruel or unusual manner."
653, this Court noticed the distinction between Section 300 Exception 1 and
Section 300 Exception 4 and came to the conclusion that the Court is bound to
consider a large number of factors for arriving at an opinion as to whether the
fight was sudden or not and/or whether the deceased has taken undue advantage
of the situation in the following words:-
The Fourth Exception to 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.
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.
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
a sudden fight;
the offender having taken undue advantage or acted in a cruel or unusual
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
IPC. It takes two to make a fight.
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 or
more persons whether with or without weapons. It is not possible to enunciate
any general rule as to what shall be deemed to be 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 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".
same legal principle.(See also: Kailash vs. State of M.P., (2006) 9 Scale 681)
Keeping in view the peculiar facts and circumstances of this case, we are of
the opinion that the conviction of the appellant should be altered from Section
302 IPC to one under Section 304 Part-II thereof. It is stated by the learned
counsel that the appellant has continuously been in jail from 17.10.2000 till
date. In view of the statement made by learned counsel for the appellant, we
are of the opinion that the ends of justice would be met if we modify the
sentence awarded to the appellant as the period already undergone by him. The
appeal is allowed to the above extent.
appellant shall be set at liberty forthwith, if not wanted in connection with
any other case.