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CASE NO.: Appeal (crl.)  899 of 2005

PETITIONER: Byvarapu Raju

RESPONDENT: State of Andhra Pradesh and Anr.

DATE OF JUDGMENT: 28/05/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

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\025  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,

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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

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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.