Vs. State of Madhya Pradesh  Insc 393 (11 July 2006)
Pasayat & S.H. Kapadia
out of SLP (Crl.) No. 5706 of 2005) ARIJIT PASAYAT, J.
in this appeal is to the correctness of judgment rendered by a Division Bench
of the Madhya Pradesh High Court, Indore Bench. By the impugned judgment
conviction of the appellant for offence punishable under Section 302 of Indian
Penal Code, 1860 (in short 'IPC') and sentence of RI for life and fine of
Rs.500/- imposed by the trial Court were maintained.
facts in a nutshell are as follows:
26.5.2004 in village Teki marriage function of the daughter of one Rama was
going on. In the said marriage function, Rama invited complainant Madhu Singh
(PW-2) and his family members. In the afternoon between 3 to 4 p.m. father and mother of the complainant i.e. Mal Singh
(hereinafter referred to as the 'deceased') and Sajan Bai, went to the house of
Rama for taking meals. At that time the complainant Madhu Singh was sitting and
taking his meal and his father was going to another room for taking meal. At
that juncture accused Bondar, his son accused Pappu i.e. the present appellant
and Munna reached there, abused Mal Singh and asked him as to who had invited
him. There was exchange of hot words and altercations took place. Suddenly,
appellant Pappu dealt a lathi blow on the left side of the head of the deceased
Mal Singh. Accused Munna also caused injury on left shoulder and left hand of
Mal Singh. Because of blow by lathi, Mal Singh fell down on the ground. At that
moment Madhu, Ban Singh and Sajjan Bai witnesses rushed to save deceased Mal
Singh. The deceased fell down unconscious because of the injuries. The
appellant and other accused persons threatened the complainant and others and
fled away from the scene of the occurrence. The incident was witnessed by Ban
Singh (PW-5), Sajjan Bai (PW-3), Madhu (PW-2) and Kamlabai. PW-2 lodged the
report (Exhibit P-2) on the same day in the night about 8 p.m. at Police Station Baag. His report, (Exhibit P-2), was
recorded by Inspector K.C. Pathak (PW-7). On the basis of the report Crime
No.90/04 under Sections 307 and 294/34 IPC was registered. Injured Mal Singh
was sent for medical examination to Primary Health Centre Baag, where he was
attended by Dr. H.S. Muvel (PW-6).
found only three external injuries on the person of the deceased vide his
medical report (Exhibit P-12). Injured Mal Singh was immediately referred by
letter, Exhibit P-13, for further treatment to District Hospital, Barwani because at that time he
was in coma. Further investigation was done by S.P. Singh Sisodiya (PW-10), and
the Station House Officer. He prepared spot map, (Exhibit P-3) and effected
seizure of Terricot Kurta, Dhoti and Shawl from the house of the deceased Mal
Singh. The injured died in the District Hospital, Barwani on 27.5.2004. Intimation
to this effect was sent to the police. Thereafter, the police prepared inquest
report and sent the deceased for postmortem examination. Postmortem was performed
by Dr. Deepak Mayeriya (PW-9). On completion of investigation, the charge-sheet
was filed indicating commission of offences punishable under Sections 302,
294/34 and 506(2)/34 of the IPC against the appellant and other accused
accused persons denied the charges and pleaded their innocence. Therefore, they
were put to trial. They examined Laxman (DW-1), Ram Singh (DW-2) in their defence.
learned Court convicted and sentenced the appellant and other co-accused for
commission of offence punishable under Section 302 read with Section 34 IPC.
the High Court it was pleaded that the incident had occurred all of a sudden
without any pre-mediation over a very trivial issue and some misunderstanding
of the appellant, other accused persons and the complainant Madhu Singh and his
father Mal Singh. During the course of verbal altercation, the present
appellant picked up a lathi and gave a blow. The prosecution witnesses PW-2,
PW-5 and others tried to assault the appellant. It was submitted that against
accused Neelabai the prosecution had changed its stand from time to time.
of accused Govind and Leelabai were not mentioned in the first information
report lodged by Madhu (PW-2).
as the accused Bonder is concerned, it was stated that he had abused the
prosecution witness who claimed to be eye-witnesses. The fatal blow was
attributed to the appellant, while rest of the injuries found on the person of
the deceased, in the opinion of the doctor (PW-9), were simple in nature and the
same did not contribute to the cause of death of the deceased. Therefore, it
was submitted that a case under Section 302 IPC was not made out.
of the State on the other hand was that looking to the number of injuries and
the nature thereof i.e. on the head and other parts of the body, conviction has
been rightly recorded. Because of the acts of the accused persons, deceased had
died on the next day in the hospital.
Court after analyzing the evidence came to hold that conviction of accused Munna
under Section 302 read with Section 34 IPC was not maintainable and he was
instead of convicted under Section 323 IPC. Conviction of accused Bondar, Govind
and Leelabai under Section 302 read with Section 34 IPC was set aside and they
of present appellant was altered from Section 302 read with Section 34 IPC to
Section 302 IPC.
support of the appeal learned counsel for the appellant submitted that the
background facts projected by the prosecution clearly show that the assault was
given in the course of a sudden quarrel. There was no pre-mediation and the
accused did not take advantage and had also not acted in a cruel manner. Only
one blow by lathi was allegedly given by picking up a lathi. Prior to that he
was not armed. In any event only one blow was given. In essence it was
submitted that Section 302 IPC has no application and in essence Fourth
Exception of Section 300 IPC applies.
contra, learned counsel for the respondent-State supported the judgment of the
pivotal 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
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. 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
in a sudden
offender's having taken undue advantage or acted in a cruel or unusual manner;
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'.
cannot be laid down as a rule of universal application that whenever one blow
is given, Section 302 IPC is ruled out.
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
the factual background in the case at hand it will be appropriate to convict
the appellant under Section 304 Part II IPC, instead of Section 302 IPC as has
been done by the trial court and affirmed by the High Court. Custodial sentence
of eight years would meet the ends of justice.
appeal is allowed to the aforesaid extent.