Posuram Deshmukh Vs.
State of Chhattisgarh  INSC 714 (9 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 697 OF 2009
(Arising out of SLP (Crl.) No. 3483 of 2008) Posuram Deshmukh ..Appellant
Versus State of Chhattisgarh ..Respondent 1
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Chhattisgarh High
Court upholding the conviction of the appellant for offence punishable under
Section 302 read with Section 34 of the Indian Penal Code, 1860 ( in short the
`IPC'). Four persons faced trial for alleged commission of the aforesaid
offence. Out of them two were found guilty by Special Judge & Additional
Sessions Judge, Durg. Co-accused Puranlal and Prahlad were acquitted.
version in a nutshell is as follows:
On 19-9-2000 Hiralal
(hereinafter referred to as the `deceased') along with Dhaneshwari (PW-1) went
to his agricultural field at about 10 a.m. for blocking the water course. When
Hiralal and Dhaneshwari were busy blocking the water course, accused Badku @
Komal and Posu came near Hiralal and asked Hiralal not to block the water
course, on which . Hiralal said that if he will not block the water course,
then water will not come to his field and his field will become dry. On that,
some altercation took place between them. At that time accused Posu was
carrying Chatwar (a square iron plate fitted at the one end of the stick)
accused Badku was carrying lathi. Both of them started attacking with those
weapons. When Dhaneshwari, daughter-in-law of Hiralal came to intervene, the
accused persons pushed her as a result of which her glass bangles broke and she
sustained abrasions. Blood started oozing out of the injuries sustained by
Hiralal. He fell down on the field. The accused persons fled from the scene of
occurrence. Dhaneshwari went to the village and informed her sister-in- law
Bhanbai and the villagers. She informed her brother-in-law also.
Thereafter, she along
with her brother-in-law took Hiralal to the Out Post Anjora, P.S. Pulgaon. She
lodged a report Ex.P/1. When Hiralal was being taken for examination to the
Government Hospital, Durg he succumbed to the injuries on the way. Certificate
Ex.P/18 was given by the doctor and based on that intimation Ex.P/30 was
written. Based on the report Ex.P/1 Police Station, Pulgaon registered FIR
investigation accused Badku gave memorandum Ex.P/8, in pursuance of that he get
recovered bamboo club under Ex.P/10. Accused Posu gave memorandum Ex.P/9 in
pursuance of that Chatwar, a square iron plate fitted at the one end of the
stick was seized under Ex.P/11.
investigation, charge sheet was filed. As the accused persons pleaded
innocence, trial was held. Twelve witnesses were examined to further the
prosecution version. PW-1 was an injured witness. The trial Court placed
reliance on the evidence of eye witnesses and found the appellant guilty.
Questioning the conviction, the appellant preferred an appeal before the High
Court. The stand taken before the High Court that the occurrence took place in
course of sudden quarrel was not accepted. The appellant has filed this appeal
primarily on the ground that even if the prosecution version is accepted in its
totality, case under Section 302 IPC is not made out.
counsel for the respondent-State on the other hand supported the judgment of
the High Court. 6. 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.
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 had 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'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak
v. State of Gujrat (2003 (5) Supreme 223], Parkash Chand v. State of H.P. (2004
(11) SCC 381), Byvarapu Raju v. State of A.P. and Anr. (2007 (11) SCC 218) and
Hawa Singh and Anr. v. State of Haryana (SLP (Crl.) No.1515/2008 disposed of on
the background facts are considered in the light of legal position elaborated
above, the inevitable conclusion is that in the present case Exception 4 to
Section 300 IPC applies.
being so, the appropriate conviction would be under Section 304 Part I, IPC.
The conviction is altered accordingly. Custodial sentence of 10 years would
meet the ends of justice.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)