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PETITIONER: SURINDER KUMAR

       Vs.

RESPONDENT: UNION TERRITORY, CHANDIGARH

DATE OF JUDGMENT08/03/1989

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) NATRAJAN, S. (J)

CITATION:  1989 AIR 1094            1989 SCR  (1) 941  1989 SCC  (2) 217        JT 1989 (1)   505  1989 SCALE  (1)563  CITATOR INFO :  R          1992 SC 559  (8)

ACT:     Indian Penal Code, 1860--Section 300 Exception 4--Ingre- dients of--On sudden quarrel person picks up weapon which is handy  and inflicts injuries, one of which is  fatal--Provi- sion applicable.

HEADNOTE:     The deceased and his brother P.W. 2 were sharing  accom- modation with P.W. 4 as a tenant on the 1st Floor of a house in Chandigarh. The father of the appellant also occupied two rooms  on  the  same floor as a tenant. As  a  marriage  was scheduled in the family of the appellant’s father a  request was made to P.W 4 to permit the use of the kitchen for a few days. The possession of the kitchen was delivered on a clear understanding that it would be returned to P.W. 4 after  the marriage.  The  possession of the kitchen  was  however  not delivered  to  P.W. 4 and that led to the quarrel.  The  de- ceased  and his brother P.W. 2 had an heated  argument  with the appellant in regard to the return of the kitchen. P.W. 2 was  alleged to have showered filthy abuses in the  presence of  the appellant’s sister, and taken out a pen  knife  from his pocket and also threatened to throw out the utensils and lock  up the kitchen. The appellant got enraged,  went  into the kitchen and returned with a knife with which he inflict- ed one blow on the neck of P.W. 2 causing a bleeding  injury and also inflicted three knife blows to the brother of  P.W. 2  as a result whereof he collapsed on the floor  and  later died while on the way to the hospital.     The appellant was convicted by the Sessions Judge  under Section  302,  Indian Penal Code and his  conviction  having been  upheld  by the High Court, he preferred an  appeal  by special leave to this Court. It was contended for the appel- lant  that there was no previous iII-will between  the  par- ties,  on  the contrary the relations were cordial  and  the appellant was not the one who had started the quarrel but he acted in the heat of passion during a sudden quarrel without any  premeditation  and hence Exception 4  to  Section  300, I.P.C.  was  applicable. On the other hand counsel  for  the State  argued that the High Court had rightly held that  the

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appellant  had acted in a cruel and unusual manner  and  was not entitled to the benefit of the said Exception, and  that the  three injuries inflicted showed that the appellant  had acted in a cruel manner. 942 Partly allowing the appeal, this Court,     HELD:  To invoke Exception 4 to Section 300 I.P.C.  four requirements  must be satisfied, namely (i) it was a  sudden fight;  (ii) there was no premeditation; (iii) the  act  was done  in a heat of passion, and (iv) the assailant  had  not taken  any undue advantage or acted in a cruel  manner.  The cause of the quarrel is not relevant nor is it relevant  who offered  the provocation or started the assault. The  number of  wounds  caused during the occurrence is not  a  decisive factor  but  what is important is that the  occurrence  must have  been sudden and unpremeditated and the  offender  must have acted in a fit of anger. [945B-D]     Where, on a sudden quarrel, a person in the heat of  the moment picks up a weapon which is handy and causes injuries, one  of  which  proves fatal, he would be  entitled  to  the benefit of this Exception provided he has not acted cruelly. [945D-E]     In  the  instant  case, after P.W. 2  and  his  deceased brother entered the room of the appellant and uttered filthy abuses  in the presence of the latter’s sister, tempers  ran high  and  on P.W. 2 taking out a pen knife,  the  appellant picked up the knife from the kitchen, ran towards P.W. 2 and inflicted a simple injury on his neck. It would be  reasona- ble  to infer that the deceased must have intervened on  the side of his brother P.W. 2 and in the course of the  scuffle he received injuries, one of which proved fatal. Under these circumstances,  it  is proper to convict the  accused  under Section 304, Part 1, I.P.C. and direct him to suffer  rigor- ous imprisonment for 7 years. [946C-E]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 530 of 1978     From  the  Judgment  and Order dated  13.9.1978  of  the Punjab and Haryana High Court in Criminal Appeal No. 1154 of 1975. M.L. Verma, S.K. Bagga and Mrs. S. Bagga for the Appellant. Tara Chand Sharma and Miss A. Subhashini for the Respondent. The Judgment of the Court was delivered by     AHMADI,  J. The appellant, having been convicted by  the learned  Sessions  Judge,  Chandigarh  under  Section   302. I.P.C.,  and his appeal against conviction having been  dis- missed by the High Court of 943 Punjab  &  Haryana,  has preferred this  appeal  by  special leave. The conviction of the appellant is principally  based on the ocular evidence of PW 2 Kesho Gupta and PW 4 Varinder Singh.  The  facts emerging from the evidence of  these  two main witnesses coupled With the evidence of the other prose- cution witnesses may be stated as follows:     PW  5  Mangal Dass was the owner of House  No.  3220  in Sector 23-D, Chandigarh, consisting of the ground floor  and the  first  floor. The ground floor was occupied  by  Mangal Dass himself while the first floor consisting of four  rooms and  a  kitchen was tenanted; two rooms and a  kitchen  were rented  to PW 4 while the other two rooms were  occupied  by Sikander Lal, the father of the appellant and Amrit Lal (the acquitted  accused). PW 2 Kesho and his brother  Nitya  Nand

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(deceased)  belonged to village Narnaul to which PW  4  also belonged. They had come to Chandigarh a couple of years back and were sharing the accommodation with PW 4. As Amrit Lal’s marriage  was scheduled on December 7, 1974, a  request  was made to PW 4 by Sikander Lal to permit the use of the kitch- en for a few days. Accordingly, the possession of the kitch- en  was delivered to Sikander Lal on December 4, 1974  on  a clear understanding that it would be returned to PW 4  after the  marriage.  As  the possession of the  kitchen  was  not returned  immediately after the marriage, PW 2 and  his  de- ceased  brother Nitya Nand demanded possession thereof  from Sikander  Lal. They were initially put off but according  to the prosecution the possession of the kitchen was  delivered on  January  1,  1975. However, as the  kitchen  had  to  be cleaned it was not occupied by PW 2 and PW 4 till January 3, 1975  on which date the family members of Sikander  Lal  are stated  to have re-entered the kitchen. It may here be  men- tioned  that this part of the prosecution evidence  has  not been  accepted by the learned Sessions Judge.  According  to the  learned Sessions Judge, the possession of  the  kitchen was not delivered to PW 4 till January 3, 1975 and that  led to the quarrel in which PW 2 received a knife injury on  the neck  and  his  brother Nitya Nand lost his  life.  On  this aspect  of the matter, the High Court has not expressed  any opinion.  On a perusal of the relevant evidence we  are  in- clined  to  think that the finding of fact recorded  by  the learned Sessions Judge in this behalf is correct.     On  January  3, 1975, at about 7.15 p.m., PW 2  and  his deceased  brother had an heated argument with the  appellant and  his  brother Amrit Lal in regard to the return  of  the kitchen.  In  the  course of this heated exchange  PW  2  is alleged to have showered filthy abuses. Although PW 2 denies this fact, PW 4 has admitted the same. PW 2 also  threatened to throw out the utensils and lock the kitchen. Since 944 PW  2  was  uttering filthy abuses in the  presence  of  the appellant’s sister and Nitya Nand did not restrain him,  the appellant  got enraged, went into the kitchen  and  returned with  a knife with which he inflincted one blow on the  neck of  PW 2 causing a bleeding injury. In the melee the  appel- lant  inflicted three knife blows to Nitya Nand; one on  the shoulder, the other on the elbow and the third on the chest, as  a result whereof Nitya Nand collapsed to the  floor  and later  died while on the way to the hospital. The fact  that Nitya Nand died a homicidal death is not in dispute.     The  appellant’s  defence was that on the  date  of  the incident  PW 2 and his deceased brother had demanded  vacant possession  of the kitchen and on being told that PW  4  had permitted them to continue to occupy it they uttered  filthy abuses  in the presence of his sister and on being asked  to desist from using such language PW 2 began to throw out  the utensils from the kitchen. When the appellant tried to  stop him  from  doing  so, PW 2 took out a knife  from  his  pant pocket  whereupon the appellant took shelter behind a  door. PW 2 rushed towards him with the knife but in the  meanwhile Nitya  Nand moved in between and sustained the  injuries  in question. The courts below have, however, concluded, and  in our opinion rightly, that the appellant had in the course of the quarrel given stab wounds to PW 2 and the deceased Nitya Nand.     The  learned Advocate for the appellant  submitted  that there  was no previous iII-will between the parties, on  the contrary  the relations were cordial and the  appellant  was not the one who had started the quarrel but he acted in  the heat of passion during a sudden quarrel without any premedi-

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tation and hence Exception 4 to Section 300, IPC was clearly attracted.  On  the other hand the learned counsel  for  the State  argued that the High Court had rightly held that  the appellant  had acted in a cruel and unusual manner  and  was not  entitled to the benefit of the said exception. He  sub- mitted that the appellant had attacked an unarmed person and had  caused as many as three injuries which showed  that  he had  acted in a cruel manner. The appellant’s counsel  coun- tered  by pointing out from the evidence of PW 1  Dr.  Goyal that  the  appellant had a deformity in the left  leg  which restricted his movement and he would ordinarily not  venture to  attack unless he was forced by circumstances to use  the weapon to contain PW 2.               Exception 4 to Section 300 reads as under:               "Exception 4: Culpable homicide is not  murder               if it is               945               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.                         Explanation:  It  is  immaterial  in               such cases which party offers the  provocation               or commits the first assault."     To  invoke  this  exception four  requirements  must  be satisfied, namely, (i) it was a sudden fight; (ii) there was no  premeditation; (iii) the act was done in a heat of  pas- sion; and (iv) the assailant had not taken any undue  advan- tage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the  provocation or  started the assault. The number of wounds caused  during the  occurrence is not a decisive factor but what is  impor- tant is that the occurrence must have been sudden and unpre- meditated  and  the  offender must have acted in  a  fit  of anger. Of course, the offender must not have taken any undue advantage  or  acted in a cruel manner. Where, on  a  sudden quarrel,  a  person  in the heat of the moment  picks  up  a weapon  which  is handy and causes injuries,  one  of  which proves  fatal, he would be entitled to the benefit  of  this exception provided he has not acted cruelly. In the  present case, the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had demanded  vacant possession  of the kitchen. When they found that the  appel- lant was disinclined to handover possession of the  kitchen, PW 2 quarrelled and uttered filthy abuses in the presence of the  appellant’s  sister.  On the appellant  asking  him  to desist he threatened to lock up the kitchen by removing  the utensils,  etc., and that led to a heated  argument  between the  appellant  on the one side and PW 2  and  his  deceased brother on the other. In the course of this heated  argument it  is the appellant’s case that PW 2 took out a knife  from his pant pocket. This part of the appeIIant’s case seems  to be probable having regard to the antecedents of PW 2. It  is on  record that PW 2 was convicted at Narnaul on  two  occa- sions under Section 411, IPC and his name was registered  as a bad character at the local police station. It was presuma- bly because of this reason that he had shifted from  Narnaul to Chandigarh a couple of years back and had started to live in  the  premises rented by PW 4. When the  appellant  found that PW 2 had taken out a pen knife from his pocket he  went into  the adjoining kitchen and returned with a knife.  From the  simple injury caused to PW 2 it would appear that PW  2 was  not  an easy target. That is why the  learned  Sessions Judge  rejected  the case that Amrit Lal had held  PW  2  to

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facilitate an attack on him by the appellant. It further 946 seems  that thereafter a scuffle must have ensued  on  Nitya Nand intervening to help his brother PW 2 in which two minor injuries  were  suffered  by the deceased on  the  left  arm before the fatal blow was inflicted on the left flank at the level  of  the  5th rib about 2" below the  nipple-  It  may incidentally  be mentioned that the Trial Court came to  the conclusion  that the injury found on the neck of PW 2 was  a selfinflicted  wound and had therefore acquitted the  appel- lant of the charge under Section 307, IPC, against which  no appeal  was carried. We have, however, proceeded to  examine this matter on the premise that PW 2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after PW 2 and his deceased brother entered the room  of  the  appellant and uttered filthy  abuses  in  the presence of the latter’s sister, tempers ran high and on  PW 2  taking out a pen knife the appellant picked up the  knife from  the kitchen, ran towards PW 2 and inflicted  a  simple injury on his neck. It would be reasonable to inter that the deceased must have intervened on the side of his brother  PW 2 and in the course of the scuffle he received injuries, one of  which proved fatal. Taking an overall view of the  inci- dent  we are inclined to think that the appellant was  enti- tled  to the benefit of the exception relied upon. The  High Court  refused to grant him that benefit on the ground  that he  had  acted in a cruel manner but we do  not  think  that merely because three injuries were caused to the deceased it could  be  said  that he had acted in a  cruel  and  unusual manner.  Under  these circumstances, we think it  proper  to convict  the  accused  under Section 304, Part  I,  IPC  and direct him to suffer rigorous imprisonment for 7 years.     In the result, this appeal partly succeeds. The order of conviction and sentence passed under Section 302, IPC is set aside and the fine, if paid, is directed to be refunded. The appellant is convicted under Section 304 Part I, IPC and  is directed to suffer rigorous imprisonment for 7 years. S.K.A.                                                Appeal allowed. 947