Buddu Khan vs State Of Uttarkhand

Buddu Khan ....Appellant

Versus

State of Uttarakhand ....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

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

Uttarakhand High Court upholding the conviction of the appellant for

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

short the `IPC').

3. Background facts in a nutshell are as follows:

On 18.9.1993 at about 8.00 p.m. in Village Fauji Math Kota within

the limits of P.S. Rudrapur (now part of District Udham Singh Nagar)

accused appellant Buddu Khan and deceased Dinesh Oli were sitting

together on a cot. Girish Chandra Chaturvedi (PW-1) was also present there.

In his presence Buddu Khan protested to the deceased as to why did he bite

on his cheek in the presence of his wife. Thereafter, Girish Chandra

Chaturvedi had left the place. When PW-1 along with Tejpal (PW-5) and Jai

Prakash again came towards near the office of Co-operative Society where

earlier aforesaid incident had taken place, they saw Buddu Khan hitting

with a brick on the head of Dinesh Oli and was saying that he will give the

deceased taste of biting the cheek. The three eye witnesses rushed and

caught hold of appellant. However, he escaped after freeing himself. The

report of the incident was lodged by Tejpal Singh (PW-5) with P.S.

Rudrapur on the very day i.e. on 18.9.1993 at about 9.30 p.m. after getting it

scribed from one Dharampal. Constable Ved Pal (PW-3) who received the

First Information Report prepared check report and made necessary entry in

the general diary, a copy of which is Ext.A-7. The crime was initially

investigated by Sub-Inspector Surendra Singh Dagri (PW-7). He went to the

spot and got prepared inquest report on 19.9.1993 at 2.00 a.m. after taking

2 the dead body of the deceased in his possession. He also prepared site plan.

The police also got prepared other necessary papers, sketch of the dead

body, police form No.13 and letter to the Chief Medical Officer, requesting

him for getting the autopsy done. Constable Pramod Kumar (PW-4) took the

dead body in a sealed condition for post mortem examination to Soban

Singh Jina Hospital, Haldwani and handed it over for the purpose. Dr. A.S.

Singh (PW-2) conducted the post mortem examination on 19.9.1993 at

about 1.00 p.m. on the dead body of deceased and prepared report. He

opined that cause of death was ante mortem injuries on the skull bone and

effusion of blood into the brain matter. Subsequently, investigation was

taken over by Prem Singh Ahlawat (PW-6), Inspector who after

interrogation of the witnesses and completing the investigation submitted

charge sheet to the Magistrate concerned. Case was committed to the Court

of Sessions.

The trial Court placed reliance on the evidence of the eye witnesses

PWs 1 and 5. In appeal, the stand was that there was no pre-meditation. On

the contrary, because the deceased had bitten on the cheek of appellant in

the presence of his wife, there was a quarrel and in course of which the

appellant picked up a brick and hit it on the head and one blow was given.

3 The High Court did not find substance in the plea that Section 302 has no

application.

4. In support of the appeal, learned counsel for the appellant submitted

that the background facts clearly established that Section 302 has no

application.

5. Learned counsel for the respondent-State on the other hand supported

the judgment.

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

4 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

5 caused (a) without premeditation, (b) in a sudden fight; (c) without the

offender's having taken undue advantage or acting 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], Parkash Chand v. State

6 of H.P. (2004 (11) SCC 381) and Byvarapu Raju v. State of A.P. and Anr.

(2007 (11) SCC 218)

8. Considering the background facts of the case we are of the view that

Exception 4 to Section 300 applies to the facts of the case. The appropriate

conviction would be under Section 304 Part I IPC. Custodial sentence of 10

years would meet the ends of justice.

9. The appeal is allowed to the aforesaid extent.

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

.....................................J. (ASOK KUMAR GANGULY)

New Delhi, January 12, 2009

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