Thankachan
& Anr Vs. State of Kerala [2007] Insc 1141 (13 November 2007)
Dr.
Arijit Pasayat & P. Sathasivam
CRIMINAL
APPEAL NO. 1535 OF 2007 (Arising out of SLP (Crl.) No.3646 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 Kerala
High Court, dismissing the appeal filed by the appellants who were described as
A2 and A3 indicating their position before the trial court, while allowing the
appeals filed by the two other accused persons (A1 and A4).
3. The
conviction of the appellants for offence punishable under Section 302 read with
Section 34 of the Indian Penal Code, 1860 (in short the 'IPC') and sentence of
imprisonment for life and a fine of Rs.20,000/- with default stipulation was
upheld.
4. The
prosecution version in a nutshell is as follows:
On
7.2.1997 at or about 6.45 p.m. at Ayamkudy Kara in Muttuchira Village of Vaikom
Taluk in Kotayam District, the 4th accused came driving his goods autorickshaw
(pick-u-auto) along with A1 to A3 in the said goods carrier and pulled up in
front of Marangattil House of Sathyadevan @ Sahadevan @ Sahadi (hereinafter
referred to as the 'deceased'). The deceased was the driver of a mini lorry. A2
straight away went over to the deceased who was sitting along with PW2 in the varanda
of his house. A2 caught hold of the deceased by the tuck of his dhoti and
dragged him on to the Ezhumanthuruthi Kapoola road in front. The deceased
picked up a soda bottle from the parapet of his house. Seeing this A2 went and
picked a soda bottle from the adjacent grocery shop run by Rajamma (PW 7), the
wife of the deceased and came on to the road. From the southern mud road (road
margin) in front of the aforesaid grocery shop, A2 struck the deceased on the
head with the soda bottle. Then the deceased also hit A2 on the head with the
soda bottle in his hand and inflicted an injury. Seeing this A2 sprinkled
chilly powder on the eyes of the deceased. The chilly powder got into the eyes
of the deceased who stood there with both hands held against his face and
rubbing his eyes.
A1
then exhorted his companions to cut Sahadevan to death.
Thereupon
A2 drew a chopper from inside his shirt and cut the deceased on his head
inflicting injuries. A3 stabbed the deceased on his right arm with a knife
inflicting injury. A4 then cut the deceased on the back of his head with a
chopper.
The
deceased fell on the road and was taken by PWs.1, 2 and 8 to the Kottayam Medical College Hospital. The deceased who had become unconscious on account of the
injuries sustained by him succumbed to the same at about 2.10 p.m. on 8.2.1997. Since the aforesaid acts were done by
A1 to A4 in prosecution of their common intention to do so, the accused persons
were charged for having committed the offence of murder punishable under
Section 302 read with Section 34 IPC.
On the
accused pleading not guilty to the charge framed against them by the court
below for the aforementioned offence, the prosecution was permitted to adduce
evidence in support of its case. The prosecution examined 16 witnesses as PWs 1
to 16 and got marked 17 documents as Exts. P1 to P17 and 8 material objects as
Mos. 1 to 8.
After
the closure of the prosecution's evidence the accused were questioned under
Section 313(1) of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.')
with regard to the incriminating circumstances appearing against them in the
evidence for the prosecution. They denied those circumstances and maintained
their innocence. They admitted that Exts. P16 and P17 are the wound
certificates pertaining to A2 and A3 respectively.
When
called upon to enter on their defence, the accused examined the Secretary of
the Ayamkudy Branch of KPMS as DW1.
5.
Placing reliance on the evidence of PWs 2, 3, 7 and 8 the trial Court recorded
conviction. As noted above, appeal was preferred before the High Court by all
the four accused persons, and the appeal filed by the present appellants was
dismissed while that of co-accused was allowed.
6. In
support of the appeal learned counsel for the appellant submitted even if
prosecution version accepted in toto offence under Section 302 IPC is not made
out. As a matter of fact it is the prosecution version that the deceased first
assaulted appellant no.1 with a broken bottle and caused several injuries.
7.
Learned counsel for the respondent on the other hand submitted that the trial
Court and the High Court have rightly found the accused persons guilty of
offence punishable under Section 302 IPC.
8. In
essence the stand of learned counsel for the appellant is that Exception IV to
Section 304 IPC would apply to the facts of the case.
9. 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.
10.
The 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. 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 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 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 mo re
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".
11.
The above position is highlighted in Sandhya Jadhav v. State of Maharashtra (2006) 4 SCC 653).
12.
Considering the background facts, appropriate conviction would be under Section
304 Part I IPC and not Section 302 IPC. The conviction is accordingly altered.
Custodial sentence of ten years would suffice. Fine amount is reduced to Rs.5,000/-.
In case fine is not paid, default sentence would be two years.
13.
Appeal is allowed to the aforesaid extent.
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