Dr. Arijit Pasayat, J
1. Challenge in this appeal is to
the judgment of the Division Bench of the Andhra Pradesh High Court
holding the appellant guilty of offences punishable under Section 302
and Section 201 of the Indian Penal Code, 1860 (in short the 'IPC').
Before the High Court challenge was to the judgment of the learned IInd
Additional Sessions Judge, West Godavari, Eluru whereunder appellant and
his mother were found guilty of offences punishable under Section 302
read with Section 34 IPC and Section 201 IPC read with Section 34 IPC.
Each was sentenced to undergo imprisonment for life and pay a fine of
Rs.1,000/- with default stipulation for the first offence and 5 years
imprisonment and fine of Rs.500/- with default stipulation for the
Background facts in a nutshell
are as under:
Koduri Kasiviswanadham (PW-2) is having some agricultural lands at
Mallavaram. There is a farmhouse containing one room in his fields.
Byvarapu Raju (A-1) was working as a farm servant since 1 = years prior
to the incident. The deceased who is no other than the father of A-l
used to come along with him. Nagamani (A2) was the wife of the deceased.
The deceased was the resident of Paderu in Visakhapatnam district. On
29.2.1996 both the accused and Venkatarao (hereinafter referred to as
the 'deceased') were quarreling with each other at the farmhouse and at
about 12.00 midnight. Bolla Venkat Rao (PW6) heard cries from the
farmhouse of PW2, and when he enquired from Al, he informed that his
father came in an intoxicant condition asking him and his mother (A2) to
come to Pederu and was beating A2 and therefore they both beat the
deceased. PW6 went to the house of PW2 and informed about the same. PW2
along with some other witnesses went to farmhouse and at that time both
the accused were ready having packed their luggage to leave the place.
Then PW2 questioned the accused, for
which Al stated that his father came in an intoxicant condition and was
beating his mother (A2) and in course of the quarrel he hacked his
father with "Yerukalakatti" and A2 also hacked the deceased. Thereafter
both the accused showed the dead body, which was in the field of sugar
cane garden of China Venkat Rao (PW9). PW2 sent a word to the Village
Administrative Officer. Thereafter he gave Ex.P7 report to the police on
1.3.1996 at 5A.M. PW13 who received Ex.P7 report, registered a case
under Section 302 read with Section 34 IPC. PW15 took up investigation.
By the time he went to Chagallu Police Station, both the accused were
present in the police station. Thereafter Al led him and the mediators
to the "Makamshed" of Viswanadham and produced the bloodstained knife,
bloodstained T-Shirt and Lungi and they were seized under Ex.P3. PW15
prepared Ex.P4 observation report and seized M.Os. 7 and 8 (control
earth and bloodstained earth). Thereafter he visited the place where the
dead body was found lying and declaration report was drafted. At that
place, he seized bloodstained earth and control earth. Thereafter he
held inquest on the dead body of the deceased from 10.30 a.m. to 1 p.m.
in the presence of PWI and another and examined the witnesses. After
inquest, the dead body was sent to post mortem examination. PW10
conducted autopsy and found 13 injuries. He opined that the deceased
died of shock due to hemorrhage on account of injury to vital organs.
After completion of investigation, PW15 filed a charge sheet. To support
the case of the prosecution, it examined 15 witnesses and marked 21
documents besides the case properties M.Os.1 to 11. Accused persons
3. Considering the evidence on
record the trial Court ordered conviction and sentence as afore-stated.
In appeal before the High Court A-2 i.e. mother of the accused was found
not guilty and it directed her acquittal. However, the conviction and
sentence so far as accused-appellant who was separately charged under
Section 302 and 201 IPC is concerned was maintained.
4. In support of the appeal, learned
counsel for the appellant submitted that the prosecution version as
unfolded during trial shows that the incident took place during the
course of a sudden quarrel and, therefore, Section 302 IPC has no
5. Learned counsel for the
respondent-State on the other hand supported the judgments of the trial
Court and the High Court.
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 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
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'. These aspects have been
highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat
(2003 (5) Supreme 223])and Parkash Chand v. State of H.P. (2004
(11) SCC 381).
8. On the background facts
considered in the light of the principles set out above, it is clear
that to the present case the Exception 4 to Section 300 IPC applies.
Therefore, the appropriate conviction would be under Section 304 Part I
IPC and not under Section 302 IPC. The conviction in terms of Section
201 IPC is well founded and does not warrant interference. In the
ultimate conclusion, the appeal is allowed to the aforesaid extent by
altering the conviction from Section 302 IPC to Section 304 Part I, IPC.
The custodial sentence of 10 years would meet the ends of justice.
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