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CASE NO.: Appeal (crl.)  287 of 2008

PETITIONER: Rakesh

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 11/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO 287 OF 2008 (Arising out of SLP (Crl.) No. 6598 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment of a Division  Bench of the Madhya Pradesh High Court at Indore,   upholding 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. Four persons  faced trial for committing murder of Kailash (hereinafter  referred to as the ’deceased’). Though the trial court had  convicted the appellant for offence punishable under Section  302 IPC, three persons were convicted for offences punishable  under Section 302 read with Section 34 IPC.  By the impugned  judgment, conviction of others was altered and each one of  them was convicted for offences punishable under Section 326  IPC read with 34 IPC and was sentenced to undergo rigorous  imprisonment for three years each and to pay a fine of  Rs.1,000/- with default stipulation.  But the conviction of the  appellant as noted above was maintained.

3.      Background facts in a nutshell are as follows: On 15/11/1998 at about 08.30 pm, in Bhagirathpura,  near the house of Sheetal Deen, Complainant Ramesh and  witness Lalchand were standing near the culvert, when  Praveen (PW4) came shouting that brother of Ramesh namely  Kamlesh was being assaulted by the appellants. These  persons, therefore, rushed to the place and witnessed that  appellant Shailu, Raju, and Ravi had kept Kailash in their  grip, while Rakesh was assaulting him with a knife, and others  were administering kicks, fits and blows. When these persons  raised an alarm, the accused persons fled away. Kailash was  immediately taken to M. Y. Hospital. He had number of  injuries which had been dressed initially but when Doctor saw  Kailash, he declared him dead. According to Ramesh Prajapat  there was a quarrel between them with regard to peels of eggs  and it was on that account the accused persons had assaulted  his brother. Report on this incident (Ex P /18) was lodged  which was recorded in Rojnamcha.  On being informed by the  operator from M.Y. Hospital about death of Kailash, Inayat

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Hussain recorded information as (Ex. P/28m) and forwarded  Raifulla Khan to investigate.  Raifulla Khan then recorded  Dehati Naish (Ex.P/w 2) was lodged by Ramesh and after  issuing Subpoena, held inquest of which he prepared report.   He also forwarded the dead body under requisition Ex.P2/27  of which post-mortem report was received from Dr. Raj Kumar  Singh.                                                        On the basis of information lodged, investigation was  undertaken and charge sheet was placed. The accused  persons abjured guilt and pleaded false implication.  The trial  court and the High Court found the evidence of the witnesses  to be credible and cogent and as noted above directed  conviction.

4.      In support of the appeal, learned counsel for the  appellant submitted that the evidence does not establish guilt  of the present appellant. According to him, even if prosecution  version is accepted in toto, offence under Section 302 IPC is  not made out. In any event an offence under Section 302 IPC  is not made out.  According to him the occurrence took place  in the course of a sudden quarrel and therefore Exception 4 to  Section 300 IPC is attracted.

5.      Learned counsel for the State supported the judgments of  the Courts below.

6.      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.     7.     The Fourth Exception to 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  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  having taken undue advantage or acted in a cruel or unusual  manner; and ( d ) the fight must have been with the person

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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  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 or 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 that 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".  8.      The above position is highlighted in Sandhya Jadhav v.  State of Maharashtra (2006) 4 SCC 653), Thankachan & Anr.  v. State of Kerala (2007 (11)  SCR 1128).

9.      In the background of the principles of law indicated  above, the appropriate conviction would be in terms of Section  304 Part I IPC, and custodial sentence of 10 years would meet  the ends of justice.

10.     Appeal is allowed to the aforesaid extent.