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CASE NO.: Appeal (crl.)  1288 of 2006

PETITIONER: VADLA CHANDRAIAH

RESPONDENT: STATE OF A.P

DATE OF JUDGMENT: 07/12/2006

BENCH: S.B. SINHA & MARKANDEY KATJU

JUDGMENT: J U D G M E N T (Arising out of SLP(Crl.) No.5281/2006)

S.B.SINHA, J.

       Delay condoned.

       Leave granted.         On 17.10.2000, at about 3.30 p.m., the deceased Manik Rao, a police  constable, was walking down the street.  P.W.8 (B.Narasimha) was a vendor of  guava.  Manik Rao picked up four guavas from his vend but did not pay the price  thereof.  On being asked to do so, he allegedly said that the same would be paid  latter.  The appellant together with his son were doing some carpentry work on the  same street.  Apparently, a quarrel took place between P.W.-8 (B.Narasimha) and  the said Manik Rao.  The appellant and his son intervened. The quarrel continued  for 10-15 minutes.   Allegedly, Appellant hacked the deceased Manik Rao with a  badze (a heavy sharp axe like instrument used in the carpentry work) causing  instantaneous death of the deceased.  Appellant together with his son were charged  for commission of murder of the said deceased Manik Rao.           The prosecution, in support of its case, examined four eye witnesses.  P.W.1’s (V.Narasimha Rao), presence on the scene however, has been doubted by  the learned trial judge. Learned Sessions Judge and the High Court have relied  upon P.W.-2 to P.W.-4 (V.Damodar Rao, K.Narayana & Kammeta Anjaiah) to  arrive at a conclusion that it was the appellant alone who had caused the  aforementioned injuries to the deceased Manik Rao.  Accused Nos. 1 and 3, who  were the father and brother of the appellant, were acquitted.           A principal question which arises for our consideration is to whether in the  aforementioned peculiar facts and circumstances of this case, the appellant can be  said to have committed the offence punishable under Section 302 I.P.C. or under  Section 304 Part-II thereof.           In view of the limited notice issued in this case, we would proceed on the  basis that the appellant alone who had caused injuries to the deceased Manik Rao.           Before, however, we advert to the legal question as regards the nature of  offence, we may notice that P.W.-15 (Dr.M.Pavan Kumar) in his evidence on the  basis of post-mortem examination report prepared by  Dr.O.Butchi Babu Reddy  stated that the following anti-mortem injuries were found on the dead body of  Manik Rao :-

"1.  Elliptical shaped penetrating incised wound with a  length of 6 c.ms on either side, a diametre of 2 1/2  c.m at the  centre and a depth of 8 c.ms extending upto the meninges on  the left temporal region.  Hematoma present below the  mesninges. (Diagram was drawn). 2       Elliptical shaped incised wound adjoining the left clavical  (with no fracture of clavical) present on the left side of  anterior aspect of neck extending upto stomclavical joint on  left side of 6 c.ms. on either side and a diametre of 2 1/2 c.m.  at the centre and a depth of 10 c.ms. with bleeding cutting  through left carodids and all the great vessels of neck on left

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and also left bronchus. Bleeding extending upto left hilem. 3        A clearly incised triangular shaped injury measuring 7  c.ms., 6 c.ms and 3 1/2 c.ms (triangle) and a depth of 4 c.ms.  without the skin collaped and exposing external oblic and  deltoid and other mussels groups with blood clots on them  on the anterior aspect of left shoulder. 4       Incised wound 6 c.ms. X 2 c.ms. X 2 c.ms. on the left side of  back with blood clots in the muscles."

       The High Court, in its Judgment, refused to accept the plea of the  appellant herein that the offence committed by him would not be one under  Section 302 I.P.C. but under Section 304 Part-II thereof in the following words :-

       "The learned counsel for the appellant further contends that there is  no motive for the appellant/accused no.1 to attack the deceased, and  that there is inconsistency in the prosecution evidence i.e. P.W.8, that  it was the accused no.2 that interfered first when the deceased  refused to pay the price for the guava fruits and so, the case of the  prosecution cannot be accepted.  This discrepancy is not that much  material nor is a ground to disbelieve the prosecution case regarding  participation of the appellant/accused no.1.  It is not known whether  apart from the incident of deceased not paying price for the guava  fruits, the accused had any other motive.  In Ex.P-1/complaint, it is  just referred that on account of grudge, the deceased was attacked.   But, there is no clear evidence with regard to the grudge.  When there  is overwhelming evidence regarding participation of accused no.1,  establishment of grudge is of no consequence.  Thus, in view of the  evidence of P.W. 2 to P.W.4, who are eye witnesses to the incident,  and as there is no dispute over the sudden death of the deceased we  are not inclined to accept the contention of the learned counsel for the  appellant that the appellant/accused no.1 is not responsible for the  injuries that caused the death of the deceased."   

       A bare perusal of the said findings of the High Court would clearly show  that there has been a total misappreciation of evidence on its part and a wrong  question had been posed. Participation of the appellant was not in dispute.  Presence of motive was. Once it was found that there had been no clear evidence  with regard to ‘grudge’ the court should have taken the same to its logical end.          The question which was thus required to be posed and answered was  whether in the absence of any motive and in particular the fact that the appellant  was not even known to the deceased, the fight which took place was a sudden one  and the injuries were inflicted in heat of passion and thus a case under Section 304  Part-II I.P.C. was made out or not.           The said contention of the appellant was sought to be answered by the  High Court stating :-            "It is strenuously argued by the learned counsel for the appellant  that even assuming that accused no.1 caused the injuries on the  deceased, no offence punishable under Section 302 IPC is constituted  and that it was a case of sudden flash, where the appellant/ accused  no.1 attacked the deceased, and such being the case, the offence has  to fall under Section 304 Part I or II IPC.  We are not inclined to  accept this contention either, as there was altercation between the  deceased and the accused, which went on for about 10 to 15 minutes,  and the evidence of P.W.-15, who spoke about the post mortem  examination, shows that the deceased suffered as many as four  injuries with a heavy weapon like Badze.  If it was a case where in a  sudden fight the accused attacked the deceased and caused an injury,  there was possibility of accepting the contention of the defence that  no offence punishable under Section 302 IPC is constituted."

                 If the quarrel continued for a long time, it would be presumed that there  was no premeditation.  If on an issue the appellant quarreled with a constable  who might have been of the opinion that he was not required to pay for the fruits,  tampers run high because of the attitude of the deceased.  

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        The issue as to whether the case would fall under Section 302 IPC or  under Section 304 Part-II thereof or not should be judged keeping in view the  aforementioned factual backdrop. For the said purpose, the term ‘evidence  brought on records’ must be considered in its entirety.           The deceased Manik Rao was a constable.  He took up four guava fruits  which P.W.-8 (B.Narasimha) was selling.  P.W.-8 (B.Narasimha) and the deceased  must have fought for payment of price.  Appellant who along with his two sons  had been carrying on carpentry work must have come to the rescue of P.W.-8  (B.Narasimha).  While doing so, a quarrel must have ensued which even,  according to the prosecution witnesses, continued for 10 or 15 minutes.  If that be  so, the question is if the appellant’s being any grudge as against the deceased or  there being no cause for sudden provocation would not arise.  Appellant was only  having his tool.  He was not otherwise armed.  The tool in his hand was required  to be used in his occupation.           It might have been used to cause injuries but sudeen provocation therefor  may not be much in doubt.         We may notice that in the post-mortem report,  Dr.O.Butchi Reddy did  not state that the injuries inflicted on the deceased by the appellant were sufficient  in ordinary course of nature to cause death or likely to cause death.  In Shivappa  Buddappa Kolkar alias Buddappagol Vs. State of Karnataka and Others, (2004)  13 SCC 168, a Division Bench of this Court in a case where there had been no  such opinion on the part of the doctor who had conducted  the post-mortem  examination opined :-

       "13.  We need not dilate further on this aspect as it is not the  prosecution case that the appellant was responsible for causing any  injury other than Injury (1).  If so, it is fairly clear that the injuries to  occipital region as well as the thorax injury which caused damage to  the ribs and lungs are both severe injuries and according to the  medical evidence both these injuries cumulatively caused death.   There is no evidence of the medical expert to the effect that Injury (1)  by itself would have caused instantaneous death as has happened in  this case or that Injury (1) by itself was sufficient in the ordinary  course of nature to cause death.  No doubt Injury (1) is a severe  injury on a vital part and in all likelihood, it could cause death.  Yet,  it is difficult to extricate the impact of an equally severe injury which  was found to be present on internal examination. In these  circumstances, it is not safe to draw a conclusion that the injury  inflicted by the appellant, if at all it was intended to be inflicted, by  itself would be sufficient in the ordinary course of nature to cause  death.  On the state of medical evidence we have, it is not possible to  draw such definite conclusion. Considering the nature of the injury  and weapons used and the circumstances in which the injury came to  be inflicted, we are of the view that the appellant shall be imputed  with the knowledge that the injury inflicted by him was likely to  cause death.  He is therefore liable to be convicted under Section 304  Part II."

       We may now examine the ingredients of the provisions of Section 300 of  I.P.C. which reads as under :-

       "300. Murder.- Except in the cases hereinafter excepted, culpable  homicide is murder, if the act by which the death is caused is done  with the intention of causing death, or-         Secondly.- If it is done with the intention of causing such bodily  injury as the offender knows to be likely to cause the death of the  person to whom the harm is caused, or-         Thirdly.-If it is done with the intention of causing bodily injury to  any person and the bodily injury intended to be inflicted is sufficient  in the ordinary course of nature to cause death, or-         Fourthly.-If the person committing the act knows that it is so  imminently  dangerous that it must, in all probability, cause death or  such bodily injury as is likely to cause death, and commits such act  without any excuse for incurring the risk of causing death or such  injury as aforesaid."

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       In this case, Part-I of Section 300 is not attracted as it is beyond any doubt  or dispute that the death was not caused with an intention to that effect.           Fourthly, appended to Section 300, would be attributed  if the person  committing the act knows that it is so imminently dangerous that it must, in all  probability, cause death or such bodily injury as is likely to cause death, and  commits such act without any excuse for incurring the risk of causing death or  such injury as aforesaid that will attract Section 300 of the Indian Penal Code.           In Sukhbir Singh vs. State of Haryana, (2002) 3 SCC 327, wherein two  fatal blows were inflicted by the appellant therein by a bhala on the upper right  portion of chest of the deceased, this Court opined :-         "19.  The High Court has also found that the occurrence had  taken place upon a sudden quarrel but as the appellant was found to  have acted in a cruel and unusual manner, he was not given the  benefit of such exception.  For holding him to have acted in a cruel  and unusual manner, the High Court relied upon the number of  injuries and their location on the body of the deceased.  In the  absence of the existence of common object, the appellant cannot be  held responsible for the other injuries caused to the person of the  deceased.  He is proved to have inflicted  two blows on the person of  the deceased which were sufficient in the ordinary course of nature to  cause his death.  The infliction of the injuries and their nature proves  the intention of the appellant but causing of such two injuries cannot  be termed to be either in a cruel or unusual manner.  All fatal  injuries resulting in death cannot be termed as cruel or unusual for  the purposes of not availing the benefit of Exception 4 of Section 300  IPC.  After the injuries were inflicted and the injured had fallen  down, the appellant is not shown to have inflicted any other injury  upon his person when he was in a helpless position.  It is proved that  in the heat of passion upon a sudden quarrel followed by a fight, the  accused who was armed with bhala caused injuries at random and  thus did not act in a cruel or unusual manner."             Again in Sandhya Jadhav (Smt) Vs. State of Maharashtra, (2006) 4 SCC  653, this Court noticed the distinction between Section 300 Exception 1 and  Section 300 Exception 4 and came to the conclusion that the Court is bound to  consider a large number of factors for arriving at an opinion as to whether the  fight was sudden or not and/or whether the deceased has taken undue advantage  of the situation in the following words :-

       "9. 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 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

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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 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 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 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".

       Again in Pappu Vs. State of M.P., (2006) 7 SCC 391, this Court reiterated  the same legal principle.(See also: Kailash vs. State of M.P., (2006) 9 Scale 681)            Keeping in view the peculiar facts and circumstances of this case, we are of  the opinion that the conviction of the appellant should be altered from Section 302  IPC to one under Section 304 Part-II thereof.  It is stated by the learned counsel  that the appellant has continuously been in jail from 17.10.2000 till date.  In view  of the statement made by learned counsel for the appellant, we are of the opinion  that the ends of justice would be met if we modify the sentence awarded to the  appellant as the period already undergone by him.  The appeal is allowed to the  above extent.         The appellant shall be set at liberty forthwith, if not wanted in connection  with any other case.