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CASE NO.: Appeal (crl.)  180 of 2004

PETITIONER: Sridhar Bhuyan

RESPONDENT: State of Orissa

DATE OF JUDGMENT: 09/08/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

(Arising out of SLP (Crl.) No. 180/2004)

ARIJIT PASAYAT, J

       Leave granted.

A Division Bench of the Orissa High Court confirmed conviction of the  appellant for offence punishable under Section 302 of the Indian Penal Code,  1860 (in short the ’I.P.C.’)  and sentence of imprisonment for life as awarded by  Learned Sessions Judge, Mayurbhanj, Baripada.

Prosecution version as unfolded during trial is as follows:

On 21.8.1988, Umakanta (brother of the appellant) teased Jayanti, the  niece of Chintamani  Rout (PW-1), father of the Pratap (hereinafter referred to as  the ’deceased’).  On 22.8.1988 Pratap complained about the previous incident to  his father (PW-1) who asked him to wait till the arrival of Jayanti’s father who  was away from the village. In the evening when Jayanti’s father returned home,  the deceased along with Jayanti’s father and Benudhar Rout (PW-5) went to the  house of the appellant to ascertain the reason for his having teased Jayanti.  As  Umakanta was absent nothing could be decided.  On the succeeding day i.e.  23.8.1988 morning, the deceased went to the house of the appellant to ascertain  whether his brother Umakanta had returned home. He also insisted that the  appellant and his brother Umakanta should come for a settlement of the incident  regarding teasing of Jayanti.  As they refused, quarrel ensued there.  At this  moment, the appellant went inside his house and came out with a knife and dealt  blows with it on the back of the deceased.  When the deceased turned his face,  the appellant caught hold of his neck and pierced the knife into his chest.  PWs 4  and 7 who were present at the spot tried to save the deceased from the appellant  but could not succeed.  The deceased who had fallen down near the fence of  Chakradhar Bhuyan was, however, taken to the village library where he  succumbed to his injuries. In order to establish accusations, 8 witnesses were examined including  PWs. 1, 4 and 7 who were claimed to be eye-witnesses.  PWs. 5 and 6  deposed  about the alleged confession made by the appellant before them of having  committed the crime.  Placing reliance on the evidence of eye-witnesses, learned  Sessions Judge found the accused guilty and convicted and sentenced him as  aforenoted.  High Court did not find any infirmity in the conclusion by the Trial  Court to warrant interference.  A plea was taken before the High Court that  offence is not covered by Section 302 IPC in view of the fact that the assaults  were made during a sudden quarrel. Though the High Court accepted that there  was a quarrel, it came to hold that Section 302 IPC has been rightly applied.   

Learned counsel for the appellant submitted that even if the accusations of

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the prosecution are accepted in toto a case under Section 302 IPC is not made  out, in view of the categorical findings recorded by the Trial Court and the High  Court that the assaults were made in course of a quarrel and conviction should  not have been done in terms of  Section 302 IPC.  According to him Exception 4  to Section 300 IPC is applicable.

In reply, learned counsel for the State submitted that looking at the factual  scenario as projected by the prosecution witnesses, and the nature of the injuries  inflicted, the Trial Court was justified in recording conviction under Section 302  IPC and the High Court has rightly dismissed the appeal.

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.

       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  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’.     

Considering the factual scenario, in the background of legal principles set  out above, the inevitable conclusion is that the case is not covered under Section  302 IPC.  The ingredients necessary to bring in application of Exception 4 to  Section 300 IPC are present. The conviction is altered to Section 304 Part I IPC.   Custodial sentence of 10 years would meet the ends of justice.

The appeal is allowed to the extent indicated.                      

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