Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 697 OF 2009
(Arising out of SLP (Crl.) No. 3483 of 2008)
Posuram Deshmukh ..Appellant
Versus
State of Chhattisgarh ..Respondent
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J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of
the Chhattisgarh High Court upholding the conviction of the appellant for
offence punishable under Section 302 read with Section 34 of the Indian
Penal Code, 1860 ( in short the ‘IPC’). Four persons faced trial for alleged
commission of the aforesaid offence. Out of them two were found guilty by
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Special Judge & Additional Sessions Judge, Durg. Co-accused Puranlal and
Prahlad were acquitted.
3. Prosecution version in a nutshell is as follows:
On 19-9-2000 Hiralal (hereinafter referred to as the ‘deceased’) along
with Dhaneshwari (PW-1) went to his agricultural field at about 10 a.m. for
blocking the water course. When Hiralal and Dhaneshwari were busy
blocking the water course, accused Badku @ Komal and Posu came near
Hiralal and asked Hiralal not to block the water course, on which . Hiralal
said that if he will not block the water course, then water will not come to
his field and his field will become dry. On that, some altercation took place
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between them. At that time accused Posu was carrying Chatwar (a square
iron plate fitted at the one end of the stick) accused Badku was carrying
lathi. Both of them started attacking with those weapons. When
Dhaneshwari, daughter-in-law of Hiralal came to intervene, the accused
persons pushed her as a result of which her glass bangles broke and she
sustained abrasions. Blood started oozing out of the injuries sustained by
Hiralal. He fell down on the field. The accused persons fled from the scene
of occurrence. Dhaneshwari went to the village and informed her sister-in-
law Bhanbai and the villagers. She informed her brother-in-law also.
Thereafter, she along with her brother-in-law took Hiralal to the Out Post
Anjora, P.S. Pulgaon. She lodged a report Ex.P/1. When Hiralal was being
taken for examination to the Government Hospital, Durg he succumbed to
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the injuries on the way. Certificate Ex.P/18 was given by the doctor and
based on that intimation Ex.P/30 was written. Based on the report Ex.P/1
Police Station, Pulgaon registered FIR Ex.P/31.
During the investigation accused Badku gave memorandum Ex.P/8,
in pursuance of that he get recovered bamboo club under Ex.P/10. Accused
Posu gave memorandum Ex.P/9 in pursuance of that Chatwar, a square iron
plate fitted at the one end of the stick was seized under Ex.P/11.
4. After investigation, charge sheet was filed. As the accused persons
pleaded innocence, trial was held. Twelve witnesses were examined to
further the prosecution version. PW-1 was an injured witness. The trial
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Court placed reliance on the evidence of eye witnesses and found the
appellant guilty. Questioning the conviction, the appellant preferred an
appeal before the High Court. The stand taken before the High Court that
the occurrence took place in course of sudden quarrel was not accepted. The
appellant has filed this appeal primarily on the ground that even if the
prosecution version is accepted in its totality, case under Section 302 IPC is
not made out.
5. Learned counsel for the respondent-State on the other hand supported
the judgment of the High Court.
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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
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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
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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
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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 had 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
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‘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], Parkash Chand v. State of H.P. (2004 (11)
SCC 381), Byvarapu Raju v. State of A.P. and Anr. (2007 (11) SCC 218)
and Hawa Singh and Anr. v. State of Haryana (SLP (Crl.) No.1515/2008
disposed of on 15.1.2009).
8. When the background facts are considered in the light of legal
position elaborated above, the inevitable conclusion is that in the present
case Exception 4 to Section 300 IPC applies.
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9. That being so, the appropriate conviction would be under Section 304
Part I, IPC. The conviction is altered accordingly. Custodial sentence of 10
years would meet the ends of justice.
10. The appeal is allowed to the aforesaid extent.
…………...............................J.
(Dr. ARIJIT PASAYAT)
………....................................J.
(ASOK KUMAR GANGULY)
New Delhi,
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April 09, 2009
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