Kumar Vs. The State of
Himachal Pradesh  INSC 528 (27 March 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM REPORTABLE CRIMINAL APPEAL (CRL.) NO 560 OF 2008 (Arising out of SLP (Crl.)
No.6114 of 2006) Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a Division Bench of
the Himachal Pradesh High Court upholding the conviction of the appellant for
offence punishable under Section 302 of the Indian Penal Code, 1860 (in short
'IPC'). Learned Additional Sessions, Judge-I, Kangra had convicted the appellant and
sentenced to undergo imprisonment for life and a fine of Rs.5,000/- with
3. Background facts which led to the trial of the accused are essentially as
Brij Lal (PW-1) is a resident of village Nadd, Tehsil Baroh, District
Kangra. Sarwan Kumar (PW-3) also belongs to the same village. On 27.02.2001
marriage of Sanjay Kumar son of PW-3 was solemnized. At about 6.30 p.m. baraat
of Sanjay Kumar started on foot from village Nadd to Danoa. PW- 1 and his son
Sanjeev Kumar (hereinafter referred to as 'deceased') also participated in the
said marriage party. At about 7.30 p.m. the marriage party reached at a place
known as "Thanda Panni". One more marriage party from village Lahar
also reached at "Thanda Pani". Most of the boys participating in both
the marriage parties were singing and dancing. There was some protest giving
rise to exchange of abuses and altercation between the accused and Sanjeev
Kumar on a trivial issue. The accused took out knife for the pocket of his
trouser and struck a blow on the stomach of Sanjeev Kumar. As a result of blood
injury he fell down on the ground and became unconscious. The accused then fled
from the spot. PW-1 called his wife from the village. They both arranged a
private jeep to take injured Sanjeev Kumar to a hospital at Kangra, but Sanjeev
Kumar died on the way at Rasooh Chowk. PW-1 informed PW-2 Smt. Usha Guleria,
Ex-Member of Zila Parishad about the incident, PW-2 in turn, informed the
S.I/S.H.O. Police Station Kangra from her PCO about death of Sanjeev Kumar due
to injuries caused with knife. PW-11 S.I. Surbux Singh, Station House Officer,
Police Station, Kangra recorded the telephonic information of PW-2 in daily
diary Ext.PW-9/A. He alongwith A.S.I. Dulo Ram. Head Constable Kaur Chand,
Constable Sand Kumar and Subash Chand immediately proceeded to the spot. PW-11
recorded the statement (Ext.PA) of PW-1, complainant under Section 154 of the
Code of Criminal Procedure, 1973 (in short Cr.P.C.) which was sent to Police
Station for registration of the First Information Report. PW- 12 Inspector
Surinder Singh recorded First Information Report (Ext.PW11/K) inquest report
(Ext. PW-11/B) was prepared by PW-11 on the spot. The dead body of deceased
Sanjeev Kumar was sent to Civil Hospital at Kangra for postmortem. PW-11
visited the place of occurrence on the same day. On the following day he
prepared spot map (Ext.P-11/C) and recorded the statement of the witnesses. He went to village Khart, where the members of the "Barat" were staying. He made search for the accused who at about 11 a.m. was found
sleeping in the house of one Amar Nath. The accused was interrogated and arrested by PW-11. On personal search of
the accused "Dagger" (Ext.P-1) concealed by him underneath the shit
and tucked in the waist was recovered. Recovery memo (Ext.P- 11/P) of the
`Dagger' was prepared in the presence of PW-6 Ramesh Kumar and Amar Nath (not
examined). `Dagger' Ext.P/1 was sealed in a parcel with seal impression, which
after use was handed over to PW-
6. Sketch map Ext. P.11/G of `Dagger' was also prepared on 28.02.2001
`Dagger' alongwith specimen of seal impression was deposited with PW-10 Head
Constable Des Raj in the Police Station. PW-13 Dr. D.P. Swami conducted
postmortem examination on the body of Sanjeev Kumar on 28.02.2001 at 11.30 a.m.
in Dr. Rajinder Parshad Govt. Medical College and Hospital Dharamshala. Dr.
Swami found the following injuries on the body of the deceased:
. Stab marks also seen on the two vests (one T shirt) dept 1 inch x = inch
Spindle shaped with clotted blood on these who clothes, Pant, Pajama, and
Kachha blood tickled down from this wound of right lower chest to pubic
(genitals) region, radish, bright.
ANTI MORTEM WOUNDS:-
1. "Stab wound, on right lower, front chest at 7th rib l inch away from
sternum /above down ward tailing down, sharp margins spindle shaped".
'ABDOMEN :- Column of liver... 1 inch x 1/2 inch x 3 inch in length x
breadth and depth. Stab wound spindle shaped continuation from injury as
reflected in external appearance on upper mid surface pale, clotted 100-cc
blood in the area. Diaphragm also cut adjoining to this area."
In the opinion of the Doctor, Sanjeev Kumar died of blood loss Shock due to
antimortem injury to liver by stab injury, injury caused to the deceased was
sufficient in the ordinary course of nature of causing death immediately. Postmortem report Ex. PW- 13/B was handed over to PW-11. PW-11 on receipt of the Chemical Examiner's reports (Ext. PW-11/1) and (Ext.
PW- 11/J) and on completion of the investigation, handed over the case file to
PW-12 who prepared the challan and the accused was sent up for trial. He
pleaded not guilty to the charge and claimed to be tried.
4. 13 witnesses were examined in support of the prosecution version. Accused
pleaded innocence. The Trial Court found PWs 3 and 4 to be reliable and
accordingly convicted appellant for offence under Section 302 IPC as aforesaid.
The conviction was challenged in appeal. Apart from the question of credibility
of the prosecution version, it was pleaded that offence punishable under
Section 302 IPC is not made out. The High Court did not accept that plea and as
noted above dismissed the appeal.
5. The plea taken before the High Court was reiterated by the appellant in
6. There is no appearance on behalf of the State in spite of the service of
7. The evidence of PWs 3 & 4 does not suffer from any infirmity. It is
cogent, credible and reliable.
8. The residuary plea relates to the applicability of Exception 4 of Section
300 IPC, as it is contended that the incident took place in course of a sudden
9. For 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.
10. 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 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. 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
11. Where 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 giving the blows with the knowledge that they were likely to cause
death, he had taken undue advantage.
12. When the facts are considered in the light of the prosecution evidence,
the inevitable conclusion is that appropriate conviction will be under Section
304 Part I IPC. Custodial sentence of 10 years would meet the ends of Justice.
13 The appeal is allowed to the aforesaid extent.