Byvarapu Raju Vs. State of Andhra Pradesh and Anr. [2007] Insc 668 (28 May 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
Dr. ARIJIT PASAYAT, J
1. Challenge in this appeal is to the judgment of the Division Bench of the
Andhra Pradesh High Court holding the appellant guilty of offences punishable
under Section 302 and Section 201 of the Indian Penal Code, 1860 (in short the
'IPC').
Before the High Court challenge was to the judgment of the learned IInd
Additional Sessions Judge, West Godavari, Eluru whereunder appellant and his
mother were found guilty of offences punishable under Section 302 read with
Section 34 IPC and Section 201 IPC read with Section 34 IPC. Each was sentenced
to undergo imprisonment for life and pay a fine of Rs.1,000/- with default
stipulation for the first offence and 5 years imprisonment and fine of Rs.500/-
with default stipulation for the latter offence.
2. Background facts in a nutshell are as under:
Koduri Kasiviswanadham (PW-2) is having some agricultural lands at
Mallavaram. There is a farmhouse containing one room in his fields. Byvarapu
Raju (A-1) was working as a farm servant since 1 = years prior to the incident.
The deceased who is no other than the father of A-l used to come along with
him. Nagamani (A2) was the wife of the deceased. The deceased was the
resident of Paderu in Visakhapatnam district. On 29.2.1996 both the accused and
Venkatarao (hereinafter referred to as the 'deceased') were quarreling with
each other at the farmhouse and at about 12.00 midnight. Bolla Venkat Rao (PW6)
heard cries from the farmhouse of PW2, and when he enquired from Al, he
informed that his father came in an intoxicant condition asking him and his
mother (A2) to come to Pederu and was beating A2 and therefore they both beat
the deceased. PW6 went to the house of PW2 and informed about the same. PW2
along with some other witnesses went to farmhouse and at that time both the
accused were ready having packed their luggage to leave the place. Then PW2
questioned the accused, for which Al stated that his father came in an
intoxicant condition and was beating his mother (A2) and in course of the
quarrel he hacked his father with "Yerukalakatti" and A2 also hacked
the deceased. Thereafter both the accused showed the dead body, which was in
the field of sugar cane garden of China Venkat Rao (PW9). PW2 sent a word to
the Village Administrative Officer. Thereafter he gave Ex.P7 report to the
police on 1.3.1996 at 5A.M. PW13 who received Ex.P7 report, registered a case
under Section 302 read with Section 34 IPC.
PW15 took up investigation. By the time he went to Chagallu Police Station,
both the accused were present in the police station. Thereafter Al led him and
the mediators to the "Makamshed" of Viswanadham and produced the
bloodstained knife, bloodstained T-Shirt and Lungi and they were seized under
Ex.P3. PW15 prepared Ex.P4 observation report and seized M.Os. 7 and 8 (control
earth and bloodstained earth).
Thereafter he visited the place where the dead body was found lying and
declaration report was drafted. At that place, he seized bloodstained earth and
control earth. Thereafter he held inquest on the dead body of the deceased from
10.30 a.m. to 1 p.m. in the presence of PWI and another and examined the
witnesses. After inquest, the dead body was sent to post mortem examination.
PW10 conducted autopsy and found 13 injuries. He opined that the deceased died
of shock due to hemorrhage on account of injury to vital organs. After
completion of investigation, PW15 filed a charge sheet. To support the case of
the prosecution, it examined 15 witnesses and marked 21 documents besides the
case properties M.Os.1 to 11. Accused persons pleaded innocence.
3. Considering the evidence on record the trial Court ordered conviction and
sentence as afore-stated. In appeal before the High Court A-2 i.e. mother of
the accused was found not guilty and it directed her acquittal. However, the
conviction and sentence so far as accused-appellant who was separately charged
under Section 302 and 201 IPC is concerned was maintained.
4. In support of the appeal, learned counsel for the appellant submitted
that the prosecution version as unfolded during trial shows that the incident
took place during the course of a sudden quarrel and, therefore, Section 302
IPC has no application.
5. Learned counsel for the respondent-State on the other hand supported the
judgments of the trial Court and 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.
7. 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 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 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'. These aspects have been highlighted in
Dhirajbhai Gorakhbhai Nayak v. State of Gujrat (2003 (5) Supreme 223])and
Parkash Chand v. State of H.P. (2004 (11) SCC 381).
8. On the background facts considered in the light of the principles set out
above, it is clear that to the present case the Exception 4 to Section 300 IPC
applies. Therefore, the appropriate conviction would be under Section 304 Part
I IPC and not under Section 302 IPC. The conviction in terms of Section 201 IPC
is well founded and does not warrant interference. In the ultimate conclusion,
the appeal is allowed to the aforesaid extent by altering the conviction from
Section 302 IPC to Section 304 Part I, IPC. The custodial sentence of 10 years
would meet the ends of justice.
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