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CASE NO.: Appeal (crl.)  560 of 2008

PETITIONER: Suresh Kumar

RESPONDENT: The State of Himachal Pradesh

DATE OF JUDGMENT: 27/03/2008

BENCH: Dr.  ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL (CRL.) NO 560  OF 2008 (Arising out of SLP (Crl.) No.6114 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  Division Bench of the Himachal Pradesh High Court upholding  the conviction of the appellant for offence punishable under  Section 302 of the Indian Penal Code, 1860 (in short ’IPC’).   Learned Additional Sessions, Judge-I, Kangra had convicted  the appellant and sentenced to undergo imprisonment for life  and a fine of Rs.5,000/- with default stipulation.     

3.      Background facts which led to the trial of the accused are  essentially as follows:  Brij Lal (PW-1) is a resident of village Nadd, Tehsil  Baroh, District Kangra.  Sarwan Kumar (PW-3) also belongs to  the same village. On 27.02.2001 marriage of Sanjay Kumar  son of PW-3 was solemnized. At about 6.30 p.m. baraat of  Sanjay Kumar started on foot from village Nadd to Danoa. PW- 1 and his son Sanjeev Kumar (hereinafter referred to as  ’deceased’) also participated in the said marriage party. At  about 7.30 p.m. the marriage party reached at a place known  as "Thanda Panni". One more marriage party from village  Lahar also reached at "Thanda Pani". Most of the boys  participating in both the marriage parties were singing and  dancing. There was some protest giving rise to exchange of  abuses and altercation between the accused and Sanjeev  Kumar on a trivial issue. The accused took out knife for the  pocket of his trouser and struck a blow on the stomach of  Sanjeev Kumar. As a result of blood injury he fell down on the  ground and became unconscious. The accused then fled from  the spot. PW-1 called his wife from the village. They both  arranged a private jeep to take injured Sanjeev Kumar to a   hospital at Kangra, but Sanjeev Kumar died on the way at  Rasooh Chowk. PW-1 informed PW-2 Smt. Usha Guleria,  Ex-Member of Zila Parishad about the incident, PW-2 in  turn, informed the S.I/S.H.O. Police Station Kangra from  her PCO about death of Sanjeev Kumar due to injuries  caused with knife. PW-11 S.I. Surbux Singh, Station House  Officer, Police Station, Kangra recorded the telephonic  information of PW-2 in daily diary Ext.PW-9/A. He alongwith  A.S.I. Dulo Ram. Head Constable Kaur Chand, Constable  Sand Kumar and Subash Chand immediately proceeded to

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the spot. PW-11 recorded the statement (Ext.PA) of PW-1,  complainant under Section 154 of the Code of Criminal  Procedure, 1973 (in short Cr.P.C.) which was sent to Police  Station for registration of the First Information Report. PW- 12 Inspector Surinder Singh recorded First Information  Report (Ext.PW11/K) inquest report (Ext. PW-11/B) was  prepared by PW-11 on the spot. The dead body of deceased  Sanjeev Kumar was sent to Civil Hospital at Kangra for  postmortem.  PW-11 visited the place of occurrence on the  same day. On the following day he prepared spot map  (Ext.P-11/C) and recorded the statement of the witnesses.  He went to village Khart, where the members of the "Barat"  were staying. He made search for the accused who at about  11 a.m. was found sleeping in the house of one Amar Nath.  The accused was interrogated and arrested by PW-11. On  personal search of the accused "Dagger" (Ext.P-1) concealed  by him underneath the shit and tucked in the waist was  recovered. Recovery memo (Ext.P- 11/P) of the ‘Dagger’ was  prepared in the presence of PW-6 Ramesh Kumar and Amar  Nath (not examined).  ‘Dagger’ Ext.P/1 was sealed in a parcel  with seal impression,  which after use was handed over to PW- 6. Sketch map Ext. P.11/G of ‘Dagger’ was also prepared on  28.02.2001 ‘Dagger’ alongwith specimen of seal impression  was deposited with PW-10 Head Constable Des Raj in the  Police Station. PW-13 Dr. D.P. Swami conducted postmortem  examination on the body of Sanjeev Kumar on 28.02.2001 at  11.30 a.m. in Dr. Rajinder Parshad Govt. Medical College and  Hospital Dharamshala. Dr. Swami found the following injuries  on the body of the deceased: EXTERNAL APPEARANCE: "..............   .\005\005\005\005 Stab marks also seen on the two vests (one T shirt)  dept 1 inch x = inch Spindle shaped with clotted  blood on these who clothes, Pant, Pajama, and  Kachha blood tickled down from this wound of right  lower chest to pubic (genitals) region, radish, bright.

ANTI MORTEM WOUNDS:- 1. "Stab wound, on right lower, front chest at 7th  rib  l inch away from sternum /above down ward tailing  down, sharp margins spindle shaped". ’ABDOMEN :- Column of liver... 1 inch x 1/2 inch x 3 inch in  length x breadth and depth. Stab wound spindle  shaped continuation from injury as reflected in  external appearance on upper mid surface pale,  clotted 100-cc blood in the area. Diaphragm also  cut adjoining to this area."

In the opinion of the Doctor, Sanjeev Kumar died of  blood loss Shock due to antimortem injury to liver by stab  injury, injury caused to the deceased was sufficient in the  ordinary course of nature of causing death immediately.  Postmortem report Ex. PW- 13/B was handed over to PW-11. PW-11 on receipt of the Chemical Examiner’s reports  (Ext. PW-11/1) and (Ext. PW- 11/J) and on completion of the  investigation, handed over the case file to PW-12 who prepared  the challan and the accused was sent up for trial.  He pleaded  not guilty to the charge and claimed to be tried.

4.      13 witnesses were examined in support of the  prosecution version.  Accused pleaded innocence.  The Trial  Court found PWs 3 and 4 to be reliable and accordingly  convicted appellant for offence under Section 302 IPC as

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aforesaid.  The conviction was challenged in appeal.  Apart  from the question of credibility of the prosecution version, it  was pleaded that offence punishable under Section 302 IPC is  not made out.  The High Court did not accept that plea and as  noted above dismissed the appeal.           

5.      The plea taken before the High Court was reiterated by  the appellant in this appeal.    

6.      There is no appearance on behalf of the State in spite of  the service of notice.     7.      The evidence of PWs 3 & 4 does not suffer from any  infirmity. It is cogent, credible and reliable.  

8.      The residuary plea relates to the applicability of  Exception 4 of Section 300 IPC, as it is contended that the  incident took place in course of a sudden quarrel.           9.      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  offender having taken undue advantage and not having acted  in a cruel or unusual manner.

10.     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  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

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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’.     

11.     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.  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 giving the  blows with the knowledge that they were likely to cause death,  he had taken undue advantage.   

12.     When the facts are considered in the light of the  prosecution evidence, the inevitable conclusion is that  appropriate conviction will be under Section 304 Part I IPC.   Custodial sentence of 10 years would meet the ends of Justice.  

13      The appeal is allowed to the aforesaid extent.