Full Judgment Text
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CASE NO.:
Appeal (crl.) 899 of 2005
PETITIONER:
Byvarapu Raju
RESPONDENT:
State of Andhra Pradesh and Anr.
DATE OF JUDGMENT: 28/05/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
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 latter offence.
2. 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\025
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,
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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 pleaded innocence.
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 application.
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
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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
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.