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Wednesday, October 1, 2014

Sec. 302 , 304 Part I & Sec.300 - Exception 4 - murder - heat of passion - High court reduced the sentence from life to 7 years - Apex court held that Then, can it be said that the crime has been committed in a heat of passion? If time is taken to cool down, then the crime cannot be said to have been committed in a heat of passion. It is the specific case of the prosecution, which in fact, has also been accepted by the High Court that “when her father Tikeswar abused them, the accused Khageswar being annoyed brought a budia from his house, which is nearby, and dealt blows to her father and the accused Dusasan brought a lathi and assaulted her father”. This clearly shows that both the convicts had sufficient time to cool down and therefore, it cannot be said that the crime was committed in a heat of passion.” The above observations fully support the view that the present case falls under Section 302, IPC. Accordingly, we allow this appeal, set aside the judgment of the High Court and restore that of the trial Court = CRIMINAL APPEAL NO. 2051 of 2014 [Arising out of Special Leave Petition (Crl.) No.1235 of 2012] STATE OF M.P. .…APPELLANT VERSUS SHIVSHANKAR ..... RESPONDENT= 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41925

    Sec. 302 , 304 Part I & Sec.300 - Exception 4 - murder - heat of passion - High court reduced the sentence from life to 7 years - Apex court held that Then, can it be said that the crime has been  committed  in  a  heat  of passion? If time is taken to cool down, then the crime  cannot  be  said  to have been committed in a heat of passion. It is the  specific  case  of  the prosecution, which in fact, has also been accepted by the  High  Court  that “when her father Tikeswar abused them, the accused Khageswar  being  annoyed brought a budia from his house, which is nearby,  and  dealt  blows  to  her father and the accused Dusasan brought a lathi and  assaulted  her  father”. This clearly shows that both the convicts had sufficient time to  cool  down and therefore, it cannot be said that the crime was committed in a  heat  of passion.” The above observations fully support the view that the  present  case  falls under Section 302, IPC. Accordingly, we allow this appeal, set aside the judgment of the High  Court and restore that of the trial Court =

Jabalpur  Bench  at
Gwalior in Criminal Appeal No.292 of 2005 altering  the  conviction  of  the
respondent from Section 302 of the Indian Penal Code (IPC) to 304 Part-I  of
the  IPC  reducing  the  sentence  from  life   imprisonment   to   rigorous
imprisonment for seven years while upholding the sentence to pay a  fine  of
Rs.10,000/-,   in  default   to   undergo   two   years   further   rigorous
imprisonment.=

 “300. Murder.—*  *     *

Exception 4.—Culpable homicide is not murder  if  it  is  committed  without
premeditation in a sudden fight  in  the  heat  of  passion  upon  a  sudden
quarrel and without the offender’s having taken undue advantage or acted  in
a cruel or unusual manner.
[pic]Explanation.—It is immaterial in such  cases  which  party  offers  the
provocation or commits the first assault.”
From a plain reading of the aforesaid Exception it is evident that it  shall
be attracted only if the death is caused (i) without premeditation, (ii)  in
a sudden fight and (iii) in a heat of passion upon a sudden quarrel. If  all
these ingredients are satisfied, the Exception  will  come  into  play  only
when the court comes to the conclusion  that  the  offender  had  not  taken
undue advantage or acted in a cruel  or  unusual  manner.  Above  all,  this
section would be attracted when the fight had taken place  with  the  person
killed.

9. The aforesaid view finds support from a judgment of this Court  in  Pappu
v. State of M.P.2 in which it has been held as  follows:  (SCC  pp.  394-95,
para 13)
“13. … 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 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.”

11. Then, can it be said that the crime has been  committed  in  a  heat  of
passion? If time is taken to cool down, then the crime  cannot  be  said  to
have been committed in a heat of passion. It is the  specific  case  of  the
prosecution, which in fact, has also been accepted by the  High  Court  that
“when her father Tikeswar abused them, the accused Khageswar  being  annoyed
brought a budia from his house, which is nearby,  and  dealt  blows  to  her
father and the accused Dusasan brought a lathi and  assaulted  her  father”.
This clearly shows that both the convicts had sufficient time to  cool  down
and therefore, it cannot be said that the crime was committed in a  heat  of
passion.”

The above observations fully support the view that the  present  case  falls
under Section 302, IPC.
Accordingly, we allow this appeal, set aside the judgment of the High  Court
and restore that of the trial Court, i.e., 5th  Additional  Sessions  Judge,
Bhind, Madhya Pradesh in Sessions Trial  No.285  of  1999.   The  respondent
stands convicted under Section  302,  IPC  and  sentenced  to  undergo  Life
Imprisonment and to pay fine imposed by the  Courts  below,  in  default  to
undergo further imprisonment as directed by the Courts below.
 
2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41925

                                                       NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2051 of 2014
       [Arising out of Special Leave Petition (Crl.) No.1235 of 2012]


STATE OF M.P.                                  .…APPELLANT

VERSUS

SHIVSHANKAR                                   ..... RESPONDENT

                               J U D G M E N T



ADARSH KUMAR GOEL, J.
1.    Leave granted.
2.    This appeal has been  preferred  against  the  Judgment          dated
10th July, 2008 of the High Court  of  Madhya  Pradesh,  Jabalpur  Bench  at
Gwalior in Criminal Appeal No.292 of 2005 altering  the  conviction  of  the
respondent from Section 302 of the Indian Penal Code (IPC) to 304 Part-I  of
the  IPC  reducing  the  sentence  from  life   imprisonment   to   rigorous
imprisonment for seven years while upholding the sentence to pay a  fine  of
Rs.10,000/-,   in  default   to   undergo   two   years   further   rigorous
imprisonment.
3.    The case  of  the  prosecution  is  that  on  2nd  March,  1999  after
celebration of Holi festival, sugar cakes (Batase)  were  being  distributed
in front of the house of the  complainant  by  Ramlachhin  Gurjar  (PW  10).
Complainant Remsewak (PW 4) and his brothers Ramnaresh (PW 6), Vinod (PW  7)
and deceased Satish were standing near  the  temple.   An  altercation  took
place on account of Mukesh taking some sugar cakes  without  the  permission
of PW 10.   The respondent slapped PW 4  and  his  brothers.   This  led  to
further altercation between the accused  and  the  complainant  party.   The
accused went inside his house, brought the licensed gun of his  brother  and
fired a shot hitting the deceased on the stomach.  Apart from  the  accused,
acquitted co-accused Shrichand and Shyamsunder had  Kattas  and  Mukesh  and
Badshah were having      12 bore single barrel  guns.   The  acquitted   co-
accused also fired in the air.  The  deceased  succumbed  to  his  injuries.
Thereafter, Ramsewak lodged First Information Report.  After  investigation,
the accused were sent up  for  trial.   The  prosecution  case  against  the
respondent was proved by three eye witnesses Ramsewak (PW 4), Ramnaresh  (PW
6) and Vinod (PW 7) who were brothers of  the  deceased,  apart  from  other
corroborating evidence.  The respondent was  convicted  under  Section  302,
IPC while others were acquitted.
4.    The respondent preferred an appeal before the High Court, but in  view
of clear evidence of firing  of  gun  shot  by  him  causing  death  of  the
deceased, only  challenge  was  to  the  nature  of  the  offence.   It  was
submitted that quarrel took place suddenly and the accused had no  intention
to cause the death of the deceased.  Firing in the air  by  the  co  accused
showed that the intention was not to cause the  death.   The  accused  fired
only one shot and in the circumstances no offence  under  Section  302,  IPC
was made out.
5.    The above plea prevailed with the High Court.  It was held as  follows
:
“10.   Considering the entire scenario of the case, it  is  clear  that  the
incident occurred  suddenly  and  without  premeditation  and  therefore  it
cannot be gathered that the intention of the appellant was to  intentionally
cause the death of  the  deceased  and  therefore,  the  conviction  of  the
appellant under Section 302 of I.P.C. is not sustainable  in  law.   But  at
the same time, it is equally important to note that  the  appellant  brought
the licensed gun from his house  and  then  he  fired  which  hit  over  the
abdomen of the deceased resulting into his  death.   Thus,  we  are  of  the
considered view that looking to the facts and circumstances, this is a  case
of culpable homicide not amounting  to  murder  which  is  punishable  under
Section 304 (part-I) of I.P.C.”

6.    We have heard learned counsel for the parties.
7.    Learned counsel for the State submitted that the  view  taken  by  the
High Court is patently erroneous in law as the offence  under  Section  302,
IPC was clearly made out.  It was not a case  of  ‘fight’  as  the  deceased
side did not cause any assault nor had any weapon.  There was time  for  the
accused to cool down.  His conduct in going to his house  and  bringing  the
gun and thereafter  firing  from  the  said  gun  clearly  established  that
neither the firing was accidental, nor unintentional  nor  in  the  heat  of
sudden fight.  Thus the offence was clearly a murder falling  under  Section
302, IPC and not falling in  any  of  the  exceptions.   Reliance  has  been
placed on judgment of  this  Court  in  State  of  Orissa  Vs.  Khaga  Alias
Khageswar Naik & Ors. [1]         8.   Learned counsel  for  the  respondent
supported the view taken by the High Court.
9.    After due consideration of the rival submissions, we are of  the  view
that the High Court has clearly erred in  holding  that  the  offence  falls
under Section 304 Part-I, IPC.
10.   It is clear from the case of the prosecution mentioned above that  the
accused first slapped the complainant which was followed  by  verbal  abuses
and thereafter the accused  brought  the  licensed  gun  and  fired  at  the
deceased, who died.    It was, thus, a voluntary and intentional act of  the
accused which caused the death.  Intention is  a  matter  of  inference  and
when death is as a result of intentional firing, intention  to  cause  death
is patent unless the case falls under any of the exceptions.  We are  unable
to hold that the case falls  under  Exception  4  of  Section  300,  IPC  as
submitted by learned counsel for the respondent.  Exception 4  is  attracted
only when there is a fight or quarrel which requires mutual provocation  and
blows by both sides in which the offender does  not  take  undue  advantage.
In the present case, there is no giving  of  any  blow  by  the  complainant
side.  The complainant side did not have any weapon.  The  accused  went  to
his house and brought a gun.   There is neither  sudden  fight  nor  a  case
where the accused has not taken undue advantage.
In State of A.P. v. Rayavarapu Punnayya [2] , it was held :
“12. In the scheme of the Penal  Code,  “culpable  homicide”  is  genus  and
“murder” its specie. All “murder”  is  “culpable  homicide”  but  not  vice-
versa.   Speaking   generally,    “culpable    homicide”    sans    “special
characteristics of murder”, is “culpable homicide not amounting to  murder”.
For the purpose of fixing punishment, proportionate to the gravity  of  this
generic offence, the Code practically recognises three degrees  of  culpable
homicide. The first is, what may be called, “culpable homicide of the  first
degree”. This is the greatest form of culpable homicide,  which  is  defined
in Section 300 as “murder”. The second may be termed as  “culpable  homicide
of the second degree”. This is punishable under the first  part  of  Section
304. Then, there is “culpable homicide of the third  degree”.  This  is  the
lowest type of culpable homicide and the  punishment  provided  for  it  is,
also, the lowest among  the  punishments  provided  for  the  three  grades.
Culpable homicide of this degree is punishable  under  the  second  part  of
Section 304.
13. The academic distinction between “murder”  and  “culpable  homicide  not
amounting to murder” has vexed the courts  for  more  than  a  century.  The
confusion is caused, if courts losing sight of the true  scope  and  meaning
of the terms used by the legislature in these sections, allow themselves  to
be drawn into minutae abstractions.  The  safest  way  of  approach  to  the
interpretation and application of these provisions seems to be  to  keep  in
focus the keywords used in the various clauses of Sections 299 and 300.”

 In Bhagwan Munjaji Pawade v. State of Maharashtra [3] , this Court held  as
under :

“6.  ….  It is true that some of[pic]the conditions  for  the  applicability
of Exception 4 to Section 300 exist here,  but  not  all.  The  quarrel  had
broken out suddenly, but there was no sudden fight between the deceased  and
the appellant. ‘Fight’ postulates a bilateral  transaction  in  which  blows
are exchanged. The deceased was unarmed. He did not cause any injury to  the
appellant or his companions. Furthermore no less than three  fatal  injuries
were inflicted by the appellant with an axe, which is  a  formidable  weapon
on the unarmed victim. Appellant, is therefore, not entitled to the  benefit
of Exception 4, either.”

                                                    In In Sridhar Bhuyan  v.
State of Orissa [4] , this Court held as under :

“7. 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 [pic]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.

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 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 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 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  a  cruel  or
unusual manner. The expression “undue advantage” as used  in  the  provision
means “unfair advantage”.

      Similar observations were made in    State of Orissa  v.  Khaga  alias
Khageswar Naik and Ors.  (supra),  which reads as under :

“8. The rival submission necessitates examination of Exception 4 to  Section
300 IPC, same reads as follows:

“300. Murder.—*  *     *

Exception 4.—Culpable homicide is not murder  if  it  is  committed  without
premeditation in a sudden fight  in  the  heat  of  passion  upon  a  sudden
quarrel and without the offender’s having taken undue advantage or acted  in
a cruel or unusual manner.
[pic]Explanation.—It is immaterial in such  cases  which  party  offers  the
provocation or commits the first assault.”
From a plain reading of the aforesaid Exception it is evident that it  shall
be attracted only if the death is caused (i) without premeditation, (ii)  in
a sudden fight and (iii) in a heat of passion upon a sudden quarrel. If  all
these ingredients are satisfied, the Exception  will  come  into  play  only
when the court comes to the conclusion  that  the  offender  had  not  taken
undue advantage or acted in a cruel  or  unusual  manner.  Above  all,  this
section would be attracted when the fight had taken place  with  the  person
killed.

9. The aforesaid view finds support from a judgment of this Court  in  Pappu
v. State of M.P.2 in which it has been held as  follows:  (SCC  pp.  394-95,
para 13)
“13. … 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 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.”

11. Then, can it be said that the crime has been  committed  in  a  heat  of
passion? If time is taken to cool down, then the crime  cannot  be  said  to
have been committed in a heat of passion. It is the  specific  case  of  the
prosecution, which in fact, has also been accepted by the  High  Court  that
“when her father Tikeswar abused them, the accused Khageswar  being  annoyed
brought a budia from his house, which is nearby,  and  dealt  blows  to  her
father and the accused Dusasan brought a lathi and  assaulted  her  father”.
This clearly shows that both the convicts had sufficient time to  cool  down
and therefore, it cannot be said that the crime was committed in a  heat  of
passion.”

The above observations fully support the view that the  present  case  falls
under Section 302, IPC.
Accordingly, we allow this appeal, set aside the judgment of the High  Court
and restore that of the trial Court, i.e., 5th  Additional  Sessions  Judge,
Bhind, Madhya Pradesh in Sessions Trial  No.285  of  1999.   The  respondent
stands convicted under Section  302,  IPC  and  sentenced  to  undergo  Life
Imprisonment and to pay fine imposed by the  Courts  below,  in  default  to
undergo further imprisonment as directed by the Courts below.

                                                            ..…………………………….J.
                                                         [ V. GOPALA GOWDA ]


                                                          ….………………………………..J.
NEW DELHI                             [ ADARSH KUMAR GOEL ]
            September 16, 2014
ITEM NO.1B-For Judgment     COURT NO.14               SECTION IIA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Crl.A. …..../2014 arising from petition(s) for Special Leave to Appeal
(Crl.)  No(s).  1235/2012

 STATE OF M.P.                                      Petitioner(s)

                                VERSUS

SHIVSHANKAR                                        Respondent(s)


Date : 16/09/2014 This petition was called on for Judgment today.


For Petitioner(s)
                     Mr. C. D. Singh,Adv.


For Respondent(s)       Mr. Vipin Kumar, Adv.
                     Mr. Deepak Goel,Adv.


            Hon'ble Mr. Justice Adarsh Kumar Goel  pronounced  the  judgment
of  the  Bench  comprising  Hon'ble  Mr.  Justice  V.Gopala  Gowda  and  His
Lordship.
            Delay condoned.
            Leave granted.
            The appeal is allowed in terms of the signed order.


    (VINOD KUMAR)                               (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Non-Reportable judgment is placed on the file)

-----------------------
[1]     (2013) 14 SCC 649
[2]     (1976) 4 SCC 382
[3]     (1978) 3 SCC 330
[4]     (2004) 11 SCC 395

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