Vishal Singh Vs.
State of Rajasthan [2009] INSC 423 (25 February 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 414 OF 2002 Vishal
Singh ..Appellant Versus State of Rajasthan ..Respondent
Dr. ARIJIT PASAYAT, J
1.
Challenge
in this appeal is to the judgment of Rajasthan High Court, Jodhpur Bench
upholding the conviction of the appellant for offence punishable under Section
302 of the Indian Penal Code, 1860 (in short the `IPC'). The accused alongwith
four others faced trial. While the accused faced trial for alleged commission
of offences punishable under Sections 302 and 341 IPC, others faced trial for
offence punishable under Sections 323 and 341 IPC.
2.
The
learned Special Judge SC/ST Act Cases, Jodhpur, held the appellant guilty of
offence punishable under Sections 302 and 341 IPC. We are not concerned with
the conviction and sentence in respect of other accused persons.
3.
Prosecution
version in a nutshell is as follows:
At 8.00 p.m. on
5.12.1996 in the city of Jodhpur P. Mukesh (PW-6) with his uncle Chetan Prakash
(PW-7) as also his father Kaluram (since deceased) went to Railway Stadium on
bicycles to bring waste meals discarded by the marriage party for their pigs.
At about 10.15 p.m. they were coming back from the Railway Stadium in two
bicycles collecting the waste meals near S.P.S. School. By the side of the
road, five persons were standing with a scooter and a Hero Puch. They stopped
the deceased and others and asked wherefrom they were coming and called them
thieves and wanted to take their personal search. When Kaluram as also Chetan
Prakash refused to give their personal search, Vishal Singh accused appellant
herein, took out a knife from his pocket and inflicted the fatal blow on the
chest of Kaluram. Co-accused Manoj Kumar inflicted a stone blow on the head of Kaluram.
The remaining three persons started beating by fists. When PW-6 Mukesh and PW-7
Chetan Prakash intervened, all the assailants made good their escape.
After walking few
steps Kalurarn became unconscious and fell down.
Thereafter, injured
Kaluram was taken to Railway Hospital in a taxi from where he was referred to
Mahatma Gandhi Hospital for treatment where Kaluram passed away at 1.30 A.M. At
the hospital itself Mukesh (PW-6) at 2.15 P.M. gave a parcha bayan Ex.P.7 to
Girija Shankar, S.I. (PW-3) who sent the same to Police Station Sardarpura
where FIR Ex.P/24 was recorded at 2.30 A.M. Immediately thereafter all the five
accused persons were put under arrest. Knife (Article 1) was recovered on the
voluntary disclosure statement given by appellant which was seized, sealed and
sent to the FSL where it was found stained with human blood.
After investigation
charge sheet was filed. Since the accused persons pleaded innocence trial was
held.
One Manoj Kumar who
had faced trial alongwith the appellant was acquitted of all charges. The other
co-accused persons were convicted under Sections 323 and 341 and were released
on probation.
Before the trial
Court the primary stand was of false implication and alternatively it was
pleaded that there was single injury and that too in a sudden quarrel and
sudden fight without pre-meditation and, therefore Section 302 has no
application. The trial Court did not accept the plea and as noted above
recorded conviction and imposed life imprisonment.
4.
In
appeal, the stand taken before the trial Court was re-iterated.
Learned counsel for
the State on the other hand submitted that there was no quarrel as claimed by
the accused. Therefore, Exception 4 to Section 300 has no application to the
facts of the case. The High Court did not accept the plea of the accused
appellant and dismissed the appeal.
5.
Stand
taken before the High Court was re-iterated. It is to be noted that occurrence
took place at about 10.15 p.m. on 5.12.1996 and the FIR was promptly lodged.
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], 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
15.1.2009).
8.
In
the instant case the High Court noted that the accused appellant was armed with
knife and standing with his friends and accosted the deceased and PW-6. They
were labelled thieves and after abusing them, accused persons started search of
their persons which was ordered by the present appellant. When the deceased
resisted he was not only thrashed but also given fatal injury on his chest with
such force that it penetrated upto lower lobe of lung as also pericardium
resulting in his death. There was no 7 evidence of any scuffle much less sudden
fight or sudden quarrel or altercation between the parties. It was the right of
the deceased and PWs 6 and 7 to resist their personal search because they were
not armed. That being so, Exception 4 to Section 300 IPC has no application to
the facts of the case. The appellant has been rightly convicted in terms of
Section 302 IPC. We find no merit in this appeal which is accordingly
dismissed.
........................................J.
(Dr. ARIJIT PASAYAT)
.
........................................J. (V.S. SIRPURKAR)
........................................J.
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