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CASE NO.: Appeal (crl.)  1511 of 2007

PETITIONER: Muthu

RESPONDENT: State by Inspector of Police, Tamil Nadu

DATE OF JUDGMENT: 02/11/2007

BENCH: A.K. Mathur & Markandey Katju

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 1511 OF 2007 [Arising out of Special Leave Petition (Crl.) No. 1242 of 2007]

MARKANDEY KATJU, J.

1.      Leave granted.

2.      This appeal has been filed against the final judgment and order dated  20.7.2005 of a Division Bench of the Madras High Court in Criminal Appeal  No. 818 of 1999.

3.      The prosecution case is that on 9.4.1998 at about 8.A.M., PW1  Radhakrishnan, PW3 Sakthivel and PW4 Arumugam went to a shop for  taking tea.  Next to the tea shop, a waste paper merchant shop was situated.   Muthu, the accused (appellant herein) was working in that shop and after  opening the shop he was arranging the articles kept inside the shop.  At that  time, the deceased Siva who used to collect waste papers from the roadside,  collected the waste-papers and cardboard boxes and threw them inside the  shop of the accused.  On seeing this the accused got angry and shouted at  Siva "why do you do this everyday?" and pulled his hair.  The deceased  thereupon pushed the accused.  Then the accused took a knife from the top  of a table in the shop and stabbed Siva in the chest.  Siva fell down due to  this injury and died.

4.      The trial court found the appellant guilty under Section 302 IPC and  sentenced him to life imprisonment.  The aforesaid conviction and sentence  was upheld by the High Court in appeal.   Hence this appeal.  

5.      We are of the opinion that the case comes under Exception I to  Section 300 IPC which states as under:

"Exception 1.  When culpable homicide is not murder.   Culpable homicide is not murder if the offender, whilst  deprived of the power of self-control by grave and  sudden provocation, causes the death of the person who  gave the provocation or causes the death of any other  person by mistake or accident.

6.      We are satisfied that the accused was deprived of the power of self- control by grave and sudden provocation which led him to commit the  offence.  If rubbish is thrown into one’s house or shop one would naturally  get very upset.  It is evident that the accused had no motive or intention to  cause the death of the deceased since the accused was not carrying the knife  from before, and only picked it up during the scuffle with the deceased.  

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7.      We find support in our view from the decisions of this Court in  Kunhayippu vs. State of Kerala  2000 (10) SCC 307 as well as in  Masumsha Hasanasha Musalman vs. State of Maharashtra 2000 (3)  SCC 557.

8.      The position may have been different if right from the beginning the  appellant accused had been carrying a knife with the intention to attack the  deceased.  But that is not the case here.                                        

9.      Learned counsel for the State relied on the decision in Pulicherla  Nagaraju vs. State of A.P. 2006 (11) SCC 444.  In that decision itself it has  been mentioned in paragraph 29 that whether there was an intention to cause  death is to be gathered from several circumstances, and one of the  circumstances mentioned in the said paragraph is whether the weapon was  carried by the accused or was picked up from the spot.  If it was carried by  the accused right from the beginning that may be a circumstance to indicate  that there was an intention to cause death if it was used for attacking the  deceased on a vital part of the body.  However, when the weapon was not  initially in the hand of the accused, but was picked up from the spot during  the altercation, then it cannot be said that it is a case under Section 302 IPC,  rather it is only a case of culpable homicide not amounting to murder which  comes under Section 304 IPC and not under Section 302 IPC.

10.     The observation of the court in the above decision that "it is for the  courts to ensure that the cases of murder punishable under Section 302, are  not converted into offences punishable under Section 304 Part I/II" cannot,  in our opinion, be understood to mean that the court should somehow try to  find out some way of treating the offence to be under Section 302 IPC.  In  our opinion, there is a clear distinction between a case of pre-meditated  attack with intention to cause death and a case where there was no such pre- meditated intention and death was caused in the heat of the moment or fit of  anger during an altercation or quarrel.   

11.     No doubt, even in the heat of the moment or fit of anger one should  not attack somebody since human beings are different from animals  inasmuch as they have the power of self-control.  Nevertheless, the fact  remains that in the heat of the moment and in a fit of anger people some  times do acts which may not have been done after premeditation.  Hence the  law provides that while those who commit acts in the heat of the moment or  fit of anger should also be punished, their punishment should be lesser than  that of premeditated offences.  It is for this reason that Exceptions I and 4  have been inserted in Section 300 IPC.

12.     We may also refer to Exception 4 to Section 300 IPC which reads as  under:

"Exception 4. \026 Culpable homicide is not murder if it is  committed without premeditation in a sudden fight in the  heat of passion upon a sudden quarrel and without the  offender having taken undue advantage or acted in a  cruel or unusual manner".   

13.     The difference between Exception I and Exception 4 to Section 300  has been explained by this Court in Pappu vs. State of M.P. 2006 (7) SCC  391.  In our opinion, the present case also comes under Exception 4 to  Section 300 IPC since the ingredients of Exception 4 are all satisfied in the  facts of the present case.

14.     In our opinion, throwing waste and rubbish inside the house or shop  of somebody is certainly a grave and sudden provocation.  Everyone wishes  to keep his premises neat and clean, and is likely to loose his self-control in  such a situation.    The incident in question occurred in a sudden fight and a  heat of passion by a sudden quarrel without the appellant having taken

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undue advantage or acted in a cruel or unusual manner.  Hence the appellant  is entitled to the benefit of Exceptions I and 4 and the case comes under  Section 304 IPC.

15.     The next question is whether the case will come under the first part or  the second part of Section 304 IPC.  In our opinion it will come under the  second part in view of the decisions of this Court in Ramesh Vithalrao  Thakre and Anr. vs. State of Maharashtra AIR 1995 SC 1453, Sarup  Singh vs. State of Haryana AIR 1995 SC 2452, Mavila Thamban  Nambiar vs. State of Kerala AIR 1997 SC 687, Sudhir Samanta vs. State  of West Bengal and Anr. AIR 1998 SC 289, K. Ramakrishnan Unnithan  vs. State of Kerala AIR 1999 SC 1428, Tholan vs. State of Tamil Nadu  1984 (2) SCC 133,  Jagpati vs. State of Madhya Pradesh AIR 1993 SC  1360 Tarsem Singh and Ors. vs. State of Punjab AIR 2002 SC 760, Hari  Ram vs. State of Haryana AIR 1983 SC 185, Randhir Singh vs. State of  Punjab AIR 1982 SC 55, Kulwant Rai vs. State of Punjab AIR 1982 SC  126 and Shankar vs. State of Madhya Pradesh AIR 1979 SC 1532.  

16.     In our opinion on the facts of the case the act committed was done  with the knowledge it is likely to cause death but without any intention to  cause death or cause such bodily injury as is likely to cause death.  Hence  the offence comes under the Part II of Section 304 IPC.         

17.     For the reasons given above, the sentence awarded by the courts  below is substituted by the sentence of five years’ simple imprisonment and  any period of incarceration in jail which the accused has already undergone  shall be deducted from the aforesaid period of five years.  The judgments of  the courts below are modified accordingly and the appeal stands disposed  off.

18.     If the appellant is on bail, his bail bonds shall stand cancelled.  He  shall surrender forthwith to serve out the remaining part of the sentence.