Bangaru Venkata Rao Vs.
State of A.P.  INSC 1308 (5 August 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.885 OF 2005 Bangaru
Venkata Rao ..Appellant Versus State of Andhra Pradesh ..Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Andhra Pradesh
High Court upholding the conviction of the appellant for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short the `IPC') and
sentence of imprisonment for life and fine of Rs.1,000/- with default
stipulation as recorded by learned Sessions Judge, Srikalulam.
facts as projected by the prosecution to fasten guilt on the appellant are as
Accused had suspected
the fidelity of his wife Polamma (hereinafter referred to as the `deceased')
towards him, for about one week prior to the offence. On 24.8.2000 at 2.00 p.m.
the accused with an intention to kill her, stabbed on the left side of her
abdomen with a knife. On hearing her cries, the neighbours Damyanthi, Appamma,
Shanthi (PW-3) the daughter of the accused Ankamma and others rushed there and
found the accused holding a knife and on seeing them, he left the house.
Polamma informed them that the accused had stabbed her. She was immediately
shifted to the hospital at Palakonda. There, the Medical officer gave treatment
and the Sub Inspector of Police recorded her statement and registered the Crime
no.55/2000 under section 307 IPC. Polamma was shifted to Headquarters Hospital,
Srikakulam and there she died at 6.00 P.M. while undergoing treatment. On
information, the section of law was altered to 302 IPC. The accused was
arrested on 25.8.2000 at 4.00 P.M. at the RIC bus complex and in pursuance of
his confessional statement, the Inspector of Police recovered the weapon of
offence i.e. the knife. A charge under Section 302 IPC was framed against the
accused and it was read over and explained to him in Telugu. When he was
questioned under section 228(2) of Code of Criminal Procedure, 1973 (in short
`Cr.P.C.') regarding the said charge, the accused stated that his wife harassed
him in several ways and that on 24th August at 2.00 P.M. his wife sent away the
children after 4.30 P.M. after providing lunch to them and that when he was
lying on the cot his wife went out and came back 10 or 15 minutes later and
tried to stab him and that he snatched the said knife and stabbed her and that
he had rushed to the police station and informed the same to the police and the
police did not take it seriously, as he went to the police station earlier on
that day at about 8.00 A.M. and his wife took him away characterizing him to be
mentally unsound and the police did not take his representation seriously.
3 In order to
establish the accusations, prosecution examined 7 witnesses. PW-1 who is a
neighbour stated that at the time of occurrence she was in her home and on
hearing cries of the deceased, she rushed to the house of the accused and found
doors of the house closed. At that time Santhi (PW- 3) daughter of the accused,
Palakonda Appamma (PW-2) and one Akula Shankari also came there. All of them
knocked the door. Then accused opened the door. They found the accused with a
knife in his hand which was stained with blood. They found the deceased on the
cot lying and holding her hand on a bleeding injury on the abdomen. When they
asked her about the incident, the deceased told that the accused was suspecting
her character for some days and had stabbed her after exchanging of hot words
They took her to the
hospital in a cycle rickshaw and she was admitted. The accused was found guilty
and convicted as noted above.
4 In appeal, it was
stated that the accused had committed the offence in private defence and
therefore he could not be convicted under Section 302 IPC. In the ultimate it
was submitted that only one blow was given and there was no intention to kill
the deceased. The High Court did not find any substance in the aforesaid stands
and dismissed the appeal.
support of the appeal, Mr. Karpaga Vinayagam, learned amicus curiae has
submitted that even if it is accepted that the appellant was not exercising the
right of private defence, the conviction under Section 302 is not proper. It is
further submitted that the evidence on record clearly establishes that there
was sudden quarrel between the accused and the deceased and single blow was
given and, therefore, the conviction under Section 302 is not proper.
counsel for the State on the other hand supported the judgment of the trial
Court and the High Court.
Pappu v. State of M.P. (2006 (7) SCC 391) it was inter- alia observed as
"14. It cannot
be laid down as a rule of universal application that whenever one blow is
given, Section 302 IPC is ruled out. It would depend upon the 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."
Ramkishan v. State of Maharashtra (2007 (3) SCC 89) at para 8 it was observed
"8. The assault
undisputedly was made in the course of sudden quarrel, without premeditation
and without the accused taking any undue advantage."
residuary plea relates to the applicability of Exception 4 of Section 300 IPC.
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 and not having acted
in a cruel or unusual manner.
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 reason and urges them to deeds which they would not
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 `unfair advantage'.
the offender takes undue advantage or has acted in a cruel or unusual manner,
the benefit of Exception 4 cannot be given to him. If the weapon used or the
manner of attack by the assailant is out of all proportion, that circumstance
must be taken into consideration to decide whether undue advantage has been
taken. In Kikar Singh v. State of Rajasthan (AIR 1993 SC 2426) it was held that
if the accused used deadly weapons against the unarmed man and struck a blow on
the head it must be held that using the blows with the knowledge that they were
likely to cause death, he had taken undue advantage. In the instant case blows
on vital parts of unarmed persons were given with brutality. The abdomens of
two deceased persons were ripped open and internal organs come out. In view of
the aforesaid factual position, Exception 4 to Section 300 I.P.C. has been
rightly held to be inapplicable.
the factual background, in our considered view the appropriate conviction would
be under Section 304 Part I, IPC. Custodial sentence of 10 years would meet the
ends of justice. We record our appreciation for the able manner in which Mr.
Karpaga Vinayagam, learned amicus curiae assisted the Court.
appeal is allowed to the above extent.
...............................J. (Dr. ARIJIT PASAYAT)