A.Maharaja vs State Of Tamil Nadu

A. Maharaja ....Appellant

Versus

State of Tamil Nadu ....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Madras High Court upholding the conviction of the appellant for offences

punishable under Section 302 of the Indian Penal Code, 1860 (in short 'the

IPC') and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.1,000/- with default stipulations, as recorded by the Principal

Sessions Judge, Madurai, in S.C. No.189 of 2005.

3. The prosecution version, in a nutshell, is as follows.

PW-1 is the wife of PW-4. The accused and PW-4 are the sons of

Alagu Ambalam (hereinafter referred to as the `deceased'). PW-2 is the son

of PW-1. Alagu Ambalam had certain immovable properties which he

partitioned 10 years before the occurrence, and he regained a piece of land

namely 10 cents, which is a poramboke, for his livelihood. The accused was

insisting him to give that land also. There arose a civil dispute between

them. It also ended in favour of Alagu Ambalam. On the day of occurrence

i.e, 26.05.2003 at about 7.00 A.M., PW-1 was going to the garden to pluck

vegetables. At that time, her father-in-law, the said Alagu Ambalam, was

cutting Karuvela trees. He was having a spade and aruval in hand. At that

time, the accused came there and questioned how he could cut the trees, and

following the same, there was a wordy duel. Immediately, the accused

snatched the aruval and cut him on the neck and shoulder indiscriminately.

PW-1 on seeing this, raised alarm, and immediately, the accused fled away

from the place of occurrence. The said Alagu Ambalam met his

2 instantaneous death. PW-1 proceeded to the Police Station, where, the sub-

Inspector of Police (PW-11), was present. PW-1 gave a report (Ex.P1), on

the strength of which a case came to be registered in Crime No.81/2003

under Section 302 IPC. The first information report, Ex.P-12, along with

Ex.P1 was despatched to the Magistrates' Court.

The Inspector of Police (PW-12), on receipt of the copy of the FIR,

took up investigation, proceeded to the spot, made an inspection in the

presence of witnesses and prepared an observation mahazar, Ex.P-4, and a

rough sketch, Ex.P-13. Then, he conducted inquest on the dead body of

Alagu Ambalam in the presence of witnesses and panchayatdars and

prepared an inquest report, Ex.P-14. The dead body was sent to the

Government Hospital along with a requisition, Ex.P-2, for the purpose of

autopsy.

The Assistant Surgeon (PW-6), attached to the Government Hospital,

Melur, on receipt of the said requisition, conducted autopsy on the dead

body of Alagu Ambalam and found 7 cut injuries. The doctor gave a post-

3 mortem certificate, Ex.P-3, with her opinion that the deceased would appear

to have died of hemorrhage and shock due to injuries to major vessels.

Pending the investigation, the Investigating Officer arrested the

accused on 27.05.2003. He volunteered to give a confessional statement,

which was recorded by the Investigator. The admissible part of the

confession was marked as Ex. P-6, pursuant to which he produced M.O.-1,

aruval and M.O.-4, Shirt, which have been recovered under a mahazar,

Ex.P-7. The accused was sent for judicial remand. All the material objects

recovered from the place of occurrence and from the dead body and M.Os.

l and 4, recovered from the accused, were subjected to chemical analysis by

the Forensic Sciences Department, which resulted in two reports namely

Ex.P-10, the Chemical Analyst's report and Ex.P-11, the Serologist's report.

On completion of investigation, the Investigator filed the final report.

Charges were framed. The accused pleaded innocence.

Twelve witnesses were examined to further the prosecution version.

The accused, in his examination under Section 313 of the Code of Criminal

4 Procedure, 1908 (in short 'the Code') submitted that he has been falsely

implicated and in any event, there was a wordy duel before the occurrence

in which the appellant had purportedly snatched the weapon from the hands

of the deceased and, therefore, Section 302 IPC has no application. The

Trial Court did not accept the plea and placing reliance on the evidence of

the eye-witnesses, PWs-l and 2, recorded the conviction and sentence, as

noted above.

4. The plea taken before the Trial Court was reiterated by the accused

persons before the High Court. By the impugned judgment, the High Court

did not find any substance in the plea and dismissed the appeal.

5. The stand before the High Court was reiterated by learned counsel for

the appellant.

6. The substantive plea relates to the applicability of Exception 4 of

Section 300 IPC.

7. For bringing in its operation it has to be established that the act was

committed without premeditation, in a sudden fight in the heat of passion

5 upon a sudden quarrel without the offender having taken undue advantage

and not having acted in a cruel or unusual manner.

8. 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 reason and urges them to do

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

6 '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 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

7 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 unsual manner. The expression `undue advantage' as used

in the provision means `unfair advantage'.

9. Where the offender takes undue advantage or has acted in a crule or

unusual manner, the benefit of Exception 4 cannot be given to him. If the

weapon used or the manner of attack by the assailant is out of all proportion,

that circumstance must be taken into consideration to decide whether undue

8 advantage has been taken. In Kikar Singh v. State of Rajasthan (AIR 1993

SC 2426) it was held that if the accused used deadly weapons against the

unarmed man and struck a blow on the head it must be held that using the

blows with the knowledge that they were likely to cause death, he had taken

undue advantage.

10. These aspects have been recently highlighted in Iqbal Singh v. State

of Punjab (2008 911) SCALE 599).

11. From the background facts as considered in the light of the evidence,

the inevitable conclusion is that the occurrence took place in course of

sudden quarrel. Therefore, Exception 4 to Section 300 IPC applies. The

appropriate conviction would be under Section 304 Part-I IPC. Custodial

sentence of 10 years would meet the ends of justice.

12. The appeal is allowed to the aforesaid extent.

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............................J. (Dr. ARIJIT PASAYAT)

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............................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, November 14, 2008

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