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CASE NO.: Appeal (crl.)  819 of 2008

PETITIONER: Kotikalapudi Subba Rao

RESPONDENT: State of A.P. & Anr

DATE OF JUDGMENT: 06/05/2008

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: JUDGMENT

                                      REPORTABLE              IN THE SUPREME COURT OF INDIA

           CRIMINAL APPELLATE JURISDICTION

          CRIMINAL APPEAL NO. 819 OF 2008           (Arising out of SLP (Crl.) No.4794 of 2006)

Kotikalapudi Subba Rao                         ..Appellant

                          Versus

State of A.P. & Anr.                           ..Respondents

                      JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.   Leave granted.

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2.   Challenge in this appeal is to the judgment of the

Division Bench of the Andhra Pradesh High Court disposing of

two criminal appeals i.e. Criminal Appeal Nos.1114 and 1118

of 2004. By the impugned judgment Criminal Appeal No.1114

of 2004 filed by Ganpathi Satya Prakash (A3) was allowed.

But Criminal Appeal No.1118 of 2004 filed by Kotikalapudi

Suresh (A2) was allowed while the appeal filed by the present

A1 was dismissed. It is to be noted that the present appellant

and Kotikalapudi Suresh (A2) were found guilty under Section

302 of the Indian Penal Code, 1860 (in short ‘IPC’) while

Ganpathi Satya Prakash (A3) was found guilty for offence

punishable under Section 302 read with Section 34 IPC. The

present appellant was also found guilty for offence punishable

under Section 307 IPC. Appellant was sentenced to undergo

RI for life and to pay a fine of Rs.500/- for the first offence and

RI for five years and fine of Rs.2000/- with default stipulation

for the second offence.

3.   Background facts in a nutshell are as follows:

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    Kancherlapalli Ravi Kiran (hereinafter referred to as the

‘deceased’ ) was doing finance business.    A1 borrowed an

amount of Rs.30,000/- from the deceased and executed a

promissory note scribed by Pasupuleti Chennakesavulu (P.

W.8) . On 5.5.2001 the deceased asked A1 to repay the said

amount due to him. On denial of Al to repay the same, the

deceased allegedly slapped Al and thereupon, Al threatened

the deceased that he would see his end. On the next day i.e.

on 6.5.2001 at about 6.30 P.M. the deceased alongwith P.W. 1

came to old Bus Stand in Papatla on Suzuki Motorcycle. Then

A 1 stopped the motorcycle and called deceased and P.W.1.

The deceased got down from the motorcycle and went to A1

and thereupon quarrel ensued. P.W.1 rushed towards A1 and

noticed Al and A2 armed with knives and another person was

also with them. P.W. 1 identified the other person as A3.

According to P.W. 1, Al and A2 attempted to attack the

deceased with knives and therefore he went in rescue of him

and thereupon A1 poked him with a knife on the right side of

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abdomen, and A3 kicked him on his stomach and so he fell

down. Later, A1 poked the deceased with knife on the left side

of chest and ribs and A2 poked the deceased on the top of

right side hip. In the meanwhile, P.W.2-Kokkirala Naga Satish

reached the scene and raised cries. His cries drew the

attention of the passers by and thereby the scene stormed

with strong gathering. The accused took to his heels towards

Bheemavaripalem Road, P.W.2 informed the incident to his

father over phone. P.W.7-Kancherlapalli Kishore Kumar, a

relative of P.W.2, reached the scene and shifted the deceased

and P.W.1 to Government Hospital, Bapatla for treatment. The

Doctor examined the deceased and declared him dead.

P.W.16-Dr.Y.Vaijayanthi, CAS, Government Hospital, Bapatla

examined P.W.1 medically and found a clean cut stab injury of

size 3 1/4 cm s long, 1 cm wide and 7 depth, 2.5 cms below

and 8 cms right of umbilicus on abdomen. After giving first aid

to P.W. 1, the doctor referred him to Government Hospital,

Guntur, for further treatment. She issued Ex.P.12 certificate

opining that the injuries received by P.W. 1 are grievous in

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nature. Ex. P.19 is the wound certified issued by her. A

requisition was sent to JFCM, Bapatla to record the dying

declaration of P.W. 1. P.W. 12 - M.Babu Rao, JFCM, Bapatla

received the requisition from the Government Hospital on

6.5.2001 at about 8.50 P.M. to record the dying declaration of

P.W.1. He proceeded to Government Hospital, Bapatla, and

commenced recording of the dying declaration of P. W .1 at 9

P.M. and concluded the same at 9.20 P.M. Ex.P.13 is the

dying declaration recorded by him. P.W.14 M.Dayanandam,

ASI of Bapatla Town Police Station received death intimation

as well as intimation of the admission of P.W.1 in the hospital.

Ex. P.15 and P-16 are the intimations received by him. He

rushed   to   Government    Hospital,   Bapatla,   recorded     the

statement of P.W.1 and registered a case in Cr. No.50/2001

under Sections 307 and 302 r/w 34 IPC and issued Ex.P-17

FIR.   P.W.15   received   the   copy   of   FIR   and   took   up

investigation. He examined P.W.1 and recorded his statement

under Section 161 of the Code of Criminal Procedure, 1973 (in

short ‘Cr.P.C’). He observed the scene on 3.5.2001 at about 3

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A.M. and prepared Ex.P.6 scene of offence panchanama. He

examined PWs.2, 6 and 7 and one Kancharlapalli Naresh at

the   Government      Hospital,   Papatla   and     recorded   their

statements. He conducted inquest on the dead body of the

deceased on 7.5.2001 at 8 A.M. The opinion arrived by the

panchas,   on    hearing    the   statements   of   the   witnesses

examined during the inquest, came to be incorporated at Col.

No. 15 of the Inquest Report. Ex.P.7 is the inquest report. P.W.

17 G. Penchalanaidu, Inspector of Police, Bapatla, took up

investigation and effected arrest of Al and A2 and recovered

Mos. l and 2 in pursuance of their disclosure statements.

Ex.P.8   and    P.9   are   the   admissible   portions   in   their

confessional statements. He effected the arrest of A3 on

19.5.2001 at 10.30 A.M. at the footbridge of Railway Station,

Bapatla and sent him for remand. On requisition, P.W. 13

conducted test identification parade on 16.6.2001. In the test

identification parade P.Ws. 1 to 3 identified A1 to A3 as the

assailants of the deceased. After completing investigation, a

charge sheet came to be submitted before the II Additional

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Munsif Magistrate, Bapatla. The learned Magistrate committed

the case to the Sessions Division, Guntur as the offence

u/s.302 and. 307 IPC are exclusively triable by the Court of

Sessions. The learned Sessions Judge made over the same to

II Additional Sessions Judge, Guntur for trial in accordance

with law. The learned II Additional Sessions Judge, Guntur,

on hearing the prosecution and the accused, framed the

following charges:

1)   Charge No.1: Against A1 for the offence u/s.307 IPC;

2)   Charge No.2: Against A1 and A2 for the offence u / s.302      IPC;

3)   Charge No.3: Against A3 for the offence u/s.302 r/w 34

    IPC. He read over and explained the charges to the

    accused, for which the accused pleaded not guilty and

    claimed to be tried. To bring home the guilt of the

    accused for the offences with which they stood charged,

    the prosecution examined P.Ws.l to 17, marked Exs. P.1

    to P.20 and exhibited Mos. 1 to 8. The learned Additional

    Sessions Judge, on appreciation of the evidence brought

    on record and on hearing the prosecution and the                                                             7

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    accused, found the accused guilty for the offences with

    which    they   stood    charged   and   convicted   them

    accordingly and sentenced them.

4.   17 witnesses were examined to further the prosecution

version.   The accused persons pleaded innocence and false

implication. PW1 was the injured complainant. PW2 was also

an eye witness who removed the deceased to the hospital

along with others. It was also stated that PW3 is an eye

witness. PWs. 3, 4 and 5 were eye witnesses to the

occurrence. The Trial Court placed reliance on the evidence of

PWs. 1, 2 and 3 because PWs. 4 and 5 resiled from their

statement during investigation. The Trial Court found the

evidence of injured eye witness and two other witnesses to be

credible and cogent and, therefore, recorded conviction and

sentence as aforementioned.

5.   Two criminal appeals were filed before the High Court by

the accused persons.

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6.   The basic stand was that the evidence of the witnesses

do not inspire confidence, more particularly, when PWs 4 and

5 do not support the prosecution. The High Court found that

the case was established against the accused persons on the

basis of evidence so far as the present appellant A1 is

concerned,    but found the evidence so far as the other

accused persons are concerned. Accordingly, as noted above,

the appeal filed by the appellant was dismissed.

7.   In support of the appeal learned counsel for the

appellant submitted that the Trial Court and the High Court

should not have relied upon the evidence of PWs 1, 2 and 3.

It is also submitted that even if the prosecution version is

accepted in its entirety, a case under Section 302 IPC is not

made out because the occurrence took place in course of a

sudden quarrel and Exception 4 to Section 300 is applicable.

The learned counsel for the State supported the judgment of

the Trial Court and the High Court.

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8.    So far as the evidence of PWs. 1, 2 and 3 are concerned,

learned counsel for the appellant was not able to point out any

discrepancy or deficiency in their evidence to warrant rejection

of their evidence. The Trial Court and the High Court have

rightly relied upon their testimony.

9.    The residual question is whether Section 302 IPC has

application.

10.   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.

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11.   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

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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’.

12.   The aforesaid aspects have been highlighted in Sridhar

Bhuyan v. State of Orissa (JT 2004 (6) SC 299), Prakash

Chand v. State of H.P. (JT 2004 (6) SC 302), Sachchey Lal

Tiwari v. State of Uttar Pradesh (JT 2004 (8) SC 534), Sandhya

Jadhav v. State of Maharashtra [2006(4) SCC 653] and

Lachman Singh v. State of Haryana [2006 (10) SCC 524].

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13.   When    the   factual   position     is    considered          in    the

background of the legal principles set out above, the inevitable

conclusion is that the appropriate conviction would be in

terms of Section 304 Part I IPC and not Section 302 IPC. The

conviction under Section 307 IPC does not suffer from any

infirmity. The same is upheld. Custodial sentence of 10 years

in respect of the offence punishable under Section 304 Part I

IPC would suffice. Both the sentences shall run concurrently.

14.   The appeal is allowed to the aforesaid extent.

                                .........................................J.                                  (Dr. ARIJIT PASAYAT)

                                ..........................................J.                                  (LOKESHWAR SINGH PANTA) New Delhi, May 6, 2008