Vs. State of M.P.  Insc 166 (11 February 2008)
Arijit Pasayat & P. Sathasivam
APPEAL NO 287 OF 2008 (Arising out of SLP (Crl.) No. 6598 of 2007) Dr. ARIJIT
Challenge in this appeal is to the judgment of a Division Bench of the Madhya
Pradesh High Court at Indore, upholding 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. Four persons faced trial for
committing murder of Kailash (hereinafter referred to as the 'deceased').
Though the trial court had convicted the appellant for offence punishable under
Section 302 IPC, three persons were convicted for offences punishable under
Section 302 read with Section 34 IPC. By the impugned judgment, conviction of
others was altered and each one of them was convicted for offences punishable
under Section 326 IPC read with 34 IPC and was sentenced to undergo rigorous
imprisonment for three years each and to pay a fine of Rs.1,000/- with default
stipulation. But the conviction of the appellant as noted above was maintained.
Background facts in a nutshell are as follows:
15/11/1998 at about 08.30 pm, in Bhagirathpura, near the house of Sheetal Deen,
Complainant Ramesh and witness Lalchand were standing near the culvert, when
Praveen (PW4) came shouting that brother of Ramesh namely Kamlesh was being
assaulted by the appellants. These persons, therefore, rushed to the place and
witnessed that appellant Shailu, Raju, and Ravi
had kept Kailash in their grip, while Rakesh was assaulting him with a knife,
and others were administering kicks, fits and blows. When these persons raised
an alarm, the accused persons fled away. Kailash was immediately taken to M. Y. Hospital. He had number of injuries which
had been dressed initially but when Doctor saw Kailash, he declared him dead.
According to Ramesh Prajapat there was a quarrel between them with regard to
peels of eggs and it was on that account the accused persons had assaulted his
brother. Report on this incident (Ex P /18) was lodged which was recorded in Rojnamcha.
On being informed by the operator from M.Y.
Hospital about death of Kailash, Inayat Hussain
recorded information as (Ex. P/28m) and forwarded Raifulla Khan to investigate.
Raifulla Khan then recorded Dehati Naish (Ex.P/w 2) was lodged by Ramesh and
after issuing Subpoena, held inquest of which he prepared report.
also forwarded the dead body under requisition Ex.P2/27 of which post-mortem report
was received from Dr. Raj Kumar Singh.
basis of information lodged, investigation was undertaken and charge sheet was
placed. The accused persons abjured guilt and pleaded false implication. The
trial court and the High Court found the evidence of the witnesses to be
credible and cogent and as noted above directed conviction.
support of the appeal, learned counsel for the appellant submitted that the
evidence does not establish guilt of the present appellant. According to him,
even if prosecution version is accepted in toto, offence under Section 302 IPC
is not made out. In any event an offence under Section 302 IPC is not made out.
According to him the occurrence took place in the course of a sudden quarrel
and therefore Exception 4 to Section 300 IPC is attracted.
Learned counsel for the State supported the judgments of the Courts below.
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.
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 reason 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.
"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
a sudden fight;
the offender having taken undue advantage or acted in a cruel or unusual
fight must have been with the person killed.
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. 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 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 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 that 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".
above position is highlighted in Sandhya Jadhav v. State of Maharashtra (2006) 4 SCC 653), Thankachan &
Anr. v. State of Kerala (2007 (11) SCR 1128).
the background of the principles of law indicated above, the appropriate
conviction would be in terms of Section 304 Part I IPC, and custodial sentence
of 10 years would meet the ends of justice.
Appeal is allowed to the aforesaid extent.