REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.885 OF 2005

Bangaru Venkata Rao ..Appellant

Versus

State of Andhra  Pradesh ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division

Bench  of  the  Andhra  Pradesh  High  Court  upholding  the

conviction  of  the  appellant  for  offence  punishable  under

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

and sentence of imprisonment for life and fine of Rs.1,000/-

with  default  stipulation  as  recorded  by  learned  Sessions

Judge,  Srikalulam.  

2. Background  facts  as  projected  by  the  prosecution  to

fasten guilt on the appellant are as follows:

Accused had suspected the fidelity of his wife Polamma

(hereinafter  referred  to  as  the  ‘deceased’)  towards  him,  for

about  one  week prior to the offence.  On 24.8.2000 at  2.00

p.m. the accused with an intention to kill her, stabbed on the

left side of her abdomen with a knife. On hearing her cries, the

neighbours  Damyanthi,  Appamma,  Shanthi  (PW-3)  the

daughter of the accused Ankamma and others rushed there

and found the accused holding a knife and on seeing them, he

left the house. Polamma informed them that the accused had

stabbed her. She was immediately shifted to the hospital at

Palakonda. There, the Medical officer gave treatment and the

Sub Inspector of Police recorded her statement and registered

the Crime no.55/2000 under section 307 IPC. Polamma was

shifted to Headquarters Hospital,  Srikakulam and there she

died at 6.00 P.M. while undergoing treatment. On information,

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the section of law was altered to 302 IPC. The accused was

arrested on 25.8.2000 at 4.00 P.M. at the RIC bus complex

and in pursuance of his confessional statement, the Inspector

of  Police  recovered  the  weapon  of  offence  i.e.  the  knife.  A

charge under Section 302 IPC was framed against the accused

and it was read over and explained to him in Telugu. When he

was  questioned  under  section  228(2)  of  Code  of  Criminal

Procedure, 1973 (in short ‘Cr.P.C.’)  regarding the said charge,

the accused stated that his wife harassed him in several ways

and that on 24th August at 2.00 P.M. his wife sent away the

children after 4.30 P.M. after providing lunch to them and that

when he was lying on the cot his wife went out and came back

10 or  15  minutes  later  and tried  to  stab  him and  that  he

snatched  the  said  knife  and  stabbed  her  and  that  he  had

rushed  to  the  police  station and informed  the  same  to  the

police and the police did not take it seriously, as he went to

the police station earlier on that day at about 8.00 A.M. and

his  wife  took  him  away  characterizing  him  to  be  mentally

unsound  and  the  police  did  not  take  his  representation

seriously.

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In  order  to  establish  the  accusations,  prosecution

examined 7 witnesses.  PW-1 who is a neighbour stated that

at the time of occurrence she was in her home and on hearing

cries of the deceased, she rushed to the house of the accused

and found doors of the house closed.  At that time Santhi (PW-

3) daughter of the accused, Palakonda Appamma (PW-2) and

one Akula Shankari   also came there.  All of them knocked

the  door.  Then  accused  opened  the  door.  They  found  the

accused  with  a  knife  in  his  hand  which  was  stained  with

blood.  They found the deceased on the cot lying and holding

her hand on a bleeding injury on the abdomen.  When they

asked  her  about  the  incident,  the  deceased  told  that  the

accused was suspecting her character for some days and had

stabbed  her  after  exchanging  of  hot  words  between  them.

They took her to the hospital in a cycle rickshaw and she was

admitted.   The  accused  was  found  guilty  and  convicted  as

noted above.

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In appeal, it was stated that the accused had committed

the offence in private defence and therefore he could not be

convicted  under  Section  302  IPC.  In  the  ultimate  it  was

submitted  that  only  one  blow was  given  and there  was  no

intention to kill the deceased. The High Court did not find any

substance in the aforesaid stands and dismissed the appeal.  

3. In  support  of  the  appeal,  Mr.  Karpaga  Vinayagam,

learned  amicus  curiae  has  submitted  that  even  if  it  is

accepted  that  the  appellant  was  not  exercising  the  right  of

private  defence,  the  conviction  under  Section  302  is  not

proper.  It  is  further  submitted  that  the  evidence  on record

clearly establishes that there was sudden quarrel between the

accused  and  the  deceased  and  single  blow  was  given  and,

therefore, the conviction under Section 302 is not proper.  

4. Learned  counsel  for  the  State  on  the  other  hand

supported the judgment of the trial Court and the High Court.

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5. In Pappu v. State of M.P. (2006 (7) SCC 391) it was inter-

alia observed as follows:

“14. It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 IPC is ruled out.  It would depend upon the weapon used, the size of it in some  cases,  force  with  which  the  blow  was given, part of the body it was given and several such relevant factors.”

6. In Ramkishan v. State of Maharashtra (2007 (3) SCC 89)

at para 8 it was observed as follows:    

“8. The  assault  undisputedly  was  made  in the  course  of  sudden  quarrel,  without premeditation and without the accused taking any undue advantage.”  

7. The  residuary  plea  relates  to  the  applicability  of

Exception 4 of Section 300 IPC.

8. 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

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offender having taken undue advantage and not having acted

in a cruel or unusual manner.

9. 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  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

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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

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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’.     

10. Where the offender takes undue advantage or has acted

in  a  cruel  or  unusual  manner,  the  benefit  of  Exception  4

cannot be given to him.  If the weapon used or the manner of

attack  by  the  assailant  is  out  of  all  proportion,  that

circumstance  must  be  taken  into  consideration  to  decide

whether undue advantage has been taken.  In Kikar Singh v.

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State of Rajasthan  (AIR 1993 SC 2426) it was held that if the

accused used deadly weapons against the unarmed man and

struck a  blow on the  head  it  must  be  held  that  using  the

blows with the knowledge that they were likely to cause death,

he had taken undue advantage.  In the instant case blows on

vital parts of unarmed persons were given with brutality.  The

abdomens  of  two  deceased  persons  were  ripped  open  and

internal  organs  come  out.   In  view of  the  aforesaid  factual

position, Exception 4 to Section 300 I.P.C. has been rightly

held to be inapplicable.

11. Considering the  factual  background,  in our considered

view the appropriate conviction would be under Section 304

Part  I,  IPC.  Custodial  sentence  of  10 years would  meet  the

ends  of  justice.  We  record  our  appreciation  for  the  able

manner  in  which  Mr.  Karpaga  Vinayagam,  learned  amicus

curiae assisted the Court.

12. The appeal is allowed to the above extent.  

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........................ .......J.

(Dr. ARIJIT PASAYAT)    

………..................... J.

(G.S. SINGHVI) New Delhi, August 5, 2008

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