A. Maharaja Vs. State
of Tamil Nadu  INSC 1942 (14 November 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising
out of SLP (Crl.) No. 2270 of 2008) A. Maharaja ....Appellant Versus State of
Tamil Nadu ....Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Madras High Court
upholding the conviction of the appellant for offences punishable under Section
302 of the Indian Penal Code, 1860 (in short 'the IPC') and sentenced him to
undergo imprisonment for life and also to pay a fine of Rs.1,000/- with default
stipulations, as recorded by the Principal Sessions Judge, Madurai, in S.C.
No.189 of 2005.
prosecution version, in a nutshell, is as follows.
PW-1 is the wife of
PW-4. The accused and PW-4 are the sons of Alagu Ambalam (hereinafter referred
to as the `deceased'). PW-2 is the son of PW-1. Alagu Ambalam had certain
immovable properties which he partitioned 10 years before the occurrence, and
he regained a piece of land namely 10 cents, which is a poramboke, for his
livelihood. The accused was insisting him to give that land also. There arose a
civil dispute between them. It also ended in favour of Alagu Ambalam. On the
day of occurrence i.e, 26.05.2003 at about 7.00 A.M., PW-1 was going to the
garden to pluck vegetables. At that time, her father-in-law, the said Alagu
Ambalam, was cutting Karuvela trees. He was having a spade and aruval in hand.
At that time, the accused came there and questioned how he could cut the trees,
and following the same, there was a wordy duel. Immediately, the accused
snatched the aruval and cut him on the neck and shoulder indiscriminately.
PW-1 on seeing this,
raised alarm, and immediately, the accused fled away from the place of
occurrence. The said Alagu Ambalam met his instantaneous death. PW-1 proceeded
to the Police Station, where, the sub- Inspector of Police (PW-11), was present.
PW-1 gave a report (Ex.P1), on the strength of which a case came to be
registered in Crime No.81/2003 under Section 302 IPC. The first information
report, Ex.P-12, along with Ex.P1 was despatched to the Magistrates' Court.
The Inspector of
Police (PW-12), on receipt of the copy of the FIR, took up investigation,
proceeded to the spot, made an inspection in the presence of witnesses and
prepared an observation mahazar, Ex.P-4, and a rough sketch, Ex.P-13. Then, he
conducted inquest on the dead body of Alagu Ambalam in the presence of
witnesses and panchayatdars and prepared an inquest report, Ex.P-14. The dead
body was sent to the Government Hospital along with a requisition, Ex.P-2, for
the purpose of autopsy.
The Assistant Surgeon
(PW-6), attached to the Government Hospital, Melur, on receipt of the said
requisition, conducted autopsy on the dead body of Alagu Ambalam and found 7
cut injuries. The doctor gave a post- mortem certificate, Ex.P-3, with her
opinion that the deceased would appear to have died of hemorrhage and shock due
to injuries to major vessels.
investigation, the Investigating Officer arrested the accused on 27.05.2003. He
volunteered to give a confessional statement, which was recorded by the
Investigator. The admissible part of the confession was marked as Ex. P-6,
pursuant to which he produced M.O.-1, aruval and M.O.-4, Shirt, which have been
recovered under a mahazar, Ex.P-7. The accused was sent for judicial remand.
All the material objects recovered from the place of occurrence and from the
dead body and M.Os.
l and 4, recovered
from the accused, were subjected to chemical analysis by the Forensic Sciences
Department, which resulted in two reports namely Ex.P-10, the Chemical
Analyst's report and Ex.P-11, the Serologist's report.
On completion of
investigation, the Investigator filed the final report.
Charges were framed.
The accused pleaded innocence.
Twelve witnesses were
examined to further the prosecution version.
The accused, in his
examination under Section 313 of the Code of Criminal Procedure, 1908 (in short
'the Code') submitted that he has been falsely implicated and in any event,
there was a wordy duel before the occurrence in which the appellant had
purportedly snatched the weapon from the hands of the deceased and, therefore,
Section 302 IPC has no application. The Trial Court did not accept the plea and
placing reliance on the evidence of the eye-witnesses, PWs-l and 2, recorded
the conviction and sentence, as noted above.
plea taken before the Trial Court was reiterated by the accused persons before
the High Court. By the impugned judgment, the High Court did not find any
substance in the plea and dismissed the appeal.
stand before the High Court was reiterated by learned counsel for the appellant.
substantive plea relates to the applicability of Exception 4 of Section 300
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 do 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
unsual manner. The expression `undue advantage' as used in the provision means
the offender takes undue advantage or has acted in a crule 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 using the blows with the knowledge that they were
likely to cause death, he had taken undue advantage.
aspects have been recently highlighted in Iqbal Singh v. State of Punjab (2008
911) SCALE 599).
the background facts as considered in the light of the evidence, the inevitable
conclusion is that the occurrence took place in course of sudden quarrel.
Therefore, Exception 4 to Section 300 IPC applies. The appropriate conviction
would be under Section 304 Part-I IPC. Custodial sentence of 10 years would
meet the ends of justice.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)
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