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CASE NO.: Appeal (crl.)  870 of 2002

PETITIONER: Dhirajbhai Gorakhbhai Nayak                              

RESPONDENT: Vs. State of Gujarat                                                 

DATE OF JUDGMENT: 25/07/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J.

One Hasmukhbhai Patel (hereinafter referred to as ’the  deceased’) was the victim of homicidal death on 12.8.1993.   The appellant Dhirajbhai was alleged to be the assailant.   The learned Additional Sessions Judge, Surat, held him  guilty of offence punishable under Section 302 of Indian  Penal Code, 1860 (for short ’IPC’) and sentenced to suffer  imprisonment for life and to pay fine of Rs.2000/- with  default stipulation.  It was further directed that in case  fine is paid, the same is to be paid to the deceased’s widow  Dahiben as compensation.  Appeal before the High Court of  Gujarat did not bring any relief to the accused-appellant  and by the impugned judgment conviction and sentence were  upheld.

       Accusations which led to trial of the accused-appellant  are as follows:

       Dahiben (PW1) and the deceased were staying in house  No. 7/1427 situated in Dhastripuara in the city of Surat  with her two sons Dhanesh (PW 3) and Narendra.  About 10  days prior to the date of occurrence accused-appellant had  taken his small daughter to the in-law’s house and have kept  her there.  On his return, the deceased scolded him for  leaving a small child at a distant place and the accused was  very angry for this interference in his personal matters and  that led to quarrels - first verbal and then physical.   Subsequently on the date of occurrence at about 1.30 p.m.  when the deceased was sitting at a temple accused-appellant  warned him and challenged him saying that if he wanted to  fight he was ready for the same. This resulted in exchange  of words and a fight. Resident of the locality and PW1  separated them.  In the evening Naranbhai (PW8), a friend of  deceased came to the house of deceased and told Dahiben that  since the quarrel was going on in the house, he would take  the deceased for seeing a movie.   PW1 agreed and both PW8  and deceased went to see a movie late in the night.  As it  was mid night when they got back, PW8 and deceased slept on  the verandah of the house while PW1 and 3 slept inside the  house.  At about 4.00 p.m. in the morning on hearing shouts  for help PW1 opened the door and went outside. In the  meantime PW3 also woke up and he joined his mother outside

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the house. They saw the deceased in bleeding condition.   They also found the accused-appellant delivering blows on  the deceased. PW1 called out his name and asked him as to  why he was doing this and if there was any problem, that  could be sorted out in the morning.  The appellant on  hearing this immediately ran away. PW-1 went out and asked  for help from the neighbours. Many of them came to her  house.  The deceased was taken to hospital where he breathed  his last at about 4.45 a.m. First information report was  lodged at the police station at 5.15 a.m. Investigation was  undertaken and charge sheet was placed on completion of  investigation.  Ultimately, the matter came to trial by  learned Additional Sessions Judge, Surat.  Ten witnesses  were examined to further the prosecution version.  Testimony  of PWs 1 and 3 was accepted to be credible and as noted  above, learned Trial Judge convicted and sentenced the  accused.  The High Court in appeal, did not interfere.

       Learned counsel for the appellant submitted that the  Trial Court as well as the High Court lost sight of certain  salient features of the case.  The accused has taken a  definite plea that PW1 and PW8 were the authors of the crime  as they had an illicit relationship which was not liked by  the deceased.  On the night of occurrence they attacked the  deceased and his life was snuffed out. Strong reliance was  placed on the evidence of PW2 who resiled from his statement  made during investigation.  It was submitted that evidence  of such witness is not necessarily to be wiped out and that  portion of evidence which helps either the prosecution or  the defence can be taken note of. Presence of Dhanesh (PW3)  at the spot is clearly ruled out the evidence of PW1.   Additionally the medical evidence more particularly  testimony of Dr. Rajivbhai (PW7) clearly establishes that  the injury which is stated to have been caused by the  accused could not have been caused by the weapon claimed to  be the weapon of assault. The name of PW3 being absent in  the FIR, his presence is doubtful.  Though PW1 claimed that  her clothes and those of PW8 were blood stained, when they  tried to carry the deceased in injured condition to the  hospital, the said apparels were not seized by the police  and this has been accepted by the Investigating Officer.  It  was pointed out that the evidence of witnesses clearly shows  that it was a dark night and it was impossible to see  anything. So the claim of PW1 and PW3 that they saw the  accused-appellant assaulting the deceased is clearly  unacceptable.

       It was also submitted that if the prosecution case is  accepted in its totality, Exception 4 to Section 300 is  clearly applicable as alleged assaults were made in course  of a quarrel. Motive for the crime as claimed by the  prosecution is too fragile to warrant acceptance.          Per contra, learned counsel for the State of Gujarat  submitted that both the Trial Court as well as the High  Court have found version about alleged illicit relationship  between PW1 and PW8 to be a myth and figment of imagination.   Evidence of PW1 and PW3 has not been shaken in spite of the  incisive cross-examination.  The courts below have rightly  placed reliance on their evidence.  Medical evidence is in  no way at variance with ocular evidence and in any event the  ocular evidence being cogent has been rightly accepted. The  case is clearly covered by Section 302 IPC and Exception 4  to Section 300 has no application. Motive is not a  determinative factor to decide whether a crime has been

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committed or not.  

       The rival contentions need careful consideration.

       Coming to the plea that name of PW3 does not appear in  the First Information Report, it has to be noted that death  took place, according to medical records, at about 4.45 a.m.  and the First Information Report was lodged at about 5.15  a.m.  In other words the First Information Report was lodged  almost immediately after the occurrence.  As observed by  this Court in Sri Bhagwan v. State of Rajasthan (2001 (6)  SCC 296) the mental condition of the person who has just  seen a close relative, the bread-earner loose his life  cannot be lost sight of.  The psychic trauma cannot be  ignored. Merely because PW3’s name did not figure in the  First Information Report, that is not a suspicious  circumstance. Evidence of PWs 1 and 3 has been analysed by  both trial Court and High Court minutely and found to be  credible and cogent. Nothing infirm therein could be shown  to weaken their acceptability and reliability. The Trial  Court and the High Court were justified in placing reliance  thereon.

Coming to the evidence of PW2 on which reliance has  been placed by the learned counsel for the accused- appellant, he has been rightly described as untruthful by  the Trial court and the High Court.  He accepted to have  come near the house of the deceased on hearing shouts of  Dahiben. But he stated that he did not enquire how he died  and who was the assailant. This conduct was to say the least   most unusual and abnormal. It was not because he was shocked  and, therefore, did not ask. He does not say so.  On the  contrary, he describes in graphic detail about alleged  illicit relationship between PW1 and PW8.  The Trial Court  has rightly observed that he has tried to create a smoke  screen.  As regards the alleged discrepancy between medical  evidence and ocular evidence it is to be noted that a  combined reading of the evidence of PW9 who examined the  deceased after he was brought to the hospital and PW7 who  conducted the post-mortem, it is clear that there is no  discrepancy in the medical evidence vis-Ã -vis ocular   evidence. Only in respect of injury no.1, there appears to  be some confusion but that does not dilute the prosecution  evidence.  It would be erroneous to accord undue primacy to  the hypothetical answers of medical witnesses to exclude the  eye witnesses account which has to be tested independently  and not treated as "variable" keeping in view the medical  evidence as "constant".  (See State of U.P. v. Krishna  Gopal and Anr. (AIR 1988 SC 2154)  

       The residuary plea is about applicability of Exception  4 to Section 300.   

For 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.

       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

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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’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’.     

       The provision has no application to the facts of  present case.                                                                                                                                                                When the factual background established by the materials  on record is tested with the legal principles indicated, the  inevitable conclusion is that the appeal is without merit  and deserves dismissal.  We direct so.