Bangaru Venkata Rao vs State Of A.P

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

Bench of the Andhra Pradesh High Court upholding the

conviction of the appellant for offence punishable under

Section 302 of the Indian Penal Code, 1860 (in short the `IPC')

and sentence of imprisonment for life and fine of Rs.1,000/- with default stipulation as recorded by learned Sessions

Judge, Srikalulam.

2. Background facts as projected by the prosecution to

fasten guilt on the appellant are as follows:

Accused had suspected the fidelity of his wife Polamma

(hereinafter referred to as the `deceased') towards him, for

about one week prior to the offence. On 24.8.2000 at 2.00

p.m. the accused with an intention to kill her, stabbed on the

left side of her abdomen with a knife. On hearing her cries, the

neighbours Damyanthi, Appamma, Shanthi (PW-3) the

daughter of the accused Ankamma and others rushed there

and found the accused holding a knife and on seeing them, he

left the house. Polamma informed them that the accused had

stabbed her. She was immediately shifted to the hospital at

Palakonda. There, the Medical officer gave treatment and the

Sub Inspector of Police recorded her statement and registered

the Crime no.55/2000 under section 307 IPC. Polamma was

shifted to Headquarters Hospital, Srikakulam and there she

died at 6.00 P.M. while undergoing treatment. On information,

2 the section of law was altered to 302 IPC. The accused was

arrested on 25.8.2000 at 4.00 P.M. at the RIC bus complex

and in pursuance of his confessional statement, the Inspector

of Police recovered the weapon of offence i.e. the knife. A

charge under Section 302 IPC was framed against the accused

and it was read over and explained to him in Telugu. When he

was questioned under section 228(2) of Code of Criminal

Procedure, 1973 (in short `Cr.P.C.') regarding the said charge,

the accused stated that his wife harassed him in several ways

and that on 24th August at 2.00 P.M. his wife sent away the

children after 4.30 P.M. after providing lunch to them and that

when he was lying on the cot his wife went out and came back

10 or 15 minutes later and tried to stab him and that he

snatched the said knife and stabbed her and that he had

rushed to the police station and informed the same to the

police and the police did not take it seriously, as he went to

the police station earlier on that day at about 8.00 A.M. and

his wife took him away characterizing him to be mentally

unsound and the police did not take his representation

seriously.

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In order to establish the accusations, prosecution

examined 7 witnesses. PW-1 who is a neighbour stated that

at the time of occurrence she was in her home and on hearing

cries of the deceased, she rushed to the house of the accused

and found doors of the house closed. At that time Santhi (PW-

3) daughter of the accused, Palakonda Appamma (PW-2) and

one Akula Shankari also came there. All of them knocked

the door. Then accused opened the door. They found the

accused with a knife in his hand which was stained with

blood. They found the deceased on the cot lying and holding

her hand on a bleeding injury on the abdomen. When they

asked her about the incident, the deceased told that the

accused was suspecting her character for some days and had

stabbed her after exchanging of hot words between them.

They took her to the hospital in a cycle rickshaw and she was

admitted. The accused was found guilty and convicted as

noted above.

4 In appeal, it was stated that the accused had committed

the offence in private defence and therefore he could not be

convicted under Section 302 IPC. In the ultimate it was

submitted that only one blow was given and there was no

intention to kill the deceased. The High Court did not find any

substance in the aforesaid stands and dismissed the appeal.

3. In support of the appeal, Mr. Karpaga Vinayagam,

learned amicus curiae has submitted that even if it is

accepted that the appellant was not exercising the right of

private defence, the conviction under Section 302 is not

proper. It is further submitted that the evidence on record

clearly establishes that there was sudden quarrel between the

accused and the deceased and single blow was given and,

therefore, the conviction under Section 302 is not proper.

4. Learned counsel for the State on the other hand

supported the judgment of the trial Court and the High Court.

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5. In Pappu v. State of M.P. (2006 (7) SCC 391) it was inter-

alia observed as follows:

"14. It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 IPC is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body it was given and several such relevant factors."

6. In Ramkishan v. State of Maharashtra (2007 (3) SCC 89)

at para 8 it was observed as follows:

"8. The assault undisputedly was made in the course of sudden quarrel, without premeditation and without the accused taking any undue advantage."

7. The residuary plea relates to the applicability of

Exception 4 of Section 300 IPC.

8. 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 upon a sudden quarrel without the

6 offender having taken undue advantage and not having acted

in a cruel or unusual manner.

9. 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 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

7 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 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

8 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'.

10. Where the offender takes undue advantage or has acted

in a cruel 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 advantage has been taken. In Kikar Singh v.

9 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. In the instant case blows on

vital parts of unarmed persons were given with brutality. The

abdomens of two deceased persons were ripped open and

internal organs come out. In view of the aforesaid factual

position, Exception 4 to Section 300 I.P.C. has been rightly

held to be inapplicable.

11. Considering the factual background, in our considered

view the appropriate conviction would be under Section 304

Part I, IPC. Custodial sentence of 10 years would meet the

ends of justice. We record our appreciation for the able

manner in which Mr. Karpaga Vinayagam, learned amicus

curiae assisted the Court.

12. The appeal is allowed to the above extent.

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

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J. (G.S. SINGHVI) New Delhi, August 5, 2008

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