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Tuesday, October 28, 2014

Sec.302 I.P.C.- Sec.304 Part II I.P.C. - Trial court sentenced under sec.302 , High court confirmed the same - Apex court held that since the scuffle took place in a heat of passion and in absence of cruelty - the accused is entitled for the benefit of Section 300 Exception 4, IPC but not liable to be punished for life - only for 10 years = CRIMINAL APPEAL NO. 111 of 2008 MURLIDHAR SHIVRAM PATEKAR & ANR. ……APPELLANTS VS. STATE OF MAHARASHTRA ……RESPONDENT = 2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41959

Sec.302 I.P.C.- Sec.304 Part II I.P.C. - Trial court sentenced under sec.302 , High court confirmed the same - Apex court held that since the scuffle took place in a heat of passion and in absence of cruelty - the accused is entitled for the benefit of Section 300 Exception  4,  IPC but not liable to be punished for life - only for 10 years = 

the  inevitable
conclusion is that the act of the accused-appellants was  not  a  cruel  act
and the accused did not take undue advantage of the  deceased.  The  scuffle
took place in the heat of passion and all  the  requirements  under  Section
300 Exception  4,  IPC  have  been  satisfied.  Therefore,  the  benefit  of
Exception 4 under Section 300, IPC is attracted to the fact  situations  and
both the appellants are equally entitled to this benefit.

20.   Thus, considering the factual background and the  legal  position  set
out above, the inevitable conclusion is that the appropriate  conviction  of
the appellants would be under Section 304 Part II  IPC  instead  of  Section
302 IPC. Hence, the sentence of imprisonment for 10  years  would  meet  the ends of justice.=

2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx filename=41959

REPORTABLE

                  IN      THE       SUPREME       COURT       OF       INDIA

             CRIMINAL APPELLATE JURISDICTION


             CRIMINAL APPEAL NO. 111 of 2008





MURLIDHAR SHIVRAM PATEKAR & ANR.    ……APPELLANTS

                                     VS.

STATE OF MAHARASHTRA                  ……RESPONDENT





                               J U D G M E N T



V. GOPALA GOWDA, J.



This appeal is filed by the appellants against the judgment and order  dated
20.01.2004 passed in Criminal Appeal No. 255 of 1999 by the  High  Court  of
Judicature at Bombay, Bench at Aurangabad, whereby  the  High  Court  upheld
the Trial Court’s decision of convicting the appellants  under  Section  302
of the Indian Penal Code (in short IPC) on  the  charge  of  murder  of  one
Asaram and sentencing them  to  life  imprisonment  along  with  a  fine  of
Rs.1,000/- and in default of payment of  fine,  to  undergo  further  simple
imprisonment for one year. The present appeal is  filed  by  the  appellants
praying to set aside the impugned judgment and  order  of  the  High  Court,
urging various grounds.

2. The necessary relevant facts are briefly stated hereunder:

The accused-appellant Nos. 1 and 2 are husband and  wife  respectively,  who
are the residents of Village Motigavan in Jalgaon District  in  Maharashtra.
They have been charged with the murder of one  Asaram,  as  a  result  of  a
scuffle that took place between the accused and the  deceased.  An  FIR  was
originally lodged by Madhav Gore, the complainant,  who  had  witnessed  the
incident. Initially, the crime was registered under Section  307  read  with
Section 34 of IPC. However,  after  the  death  of  Asaram,  the  crime  was
registered under Section 302 read with Section 34 of IPC.  The  Trial  Court
found both the accused guilty of the offence of murder  and  sentenced  them
to suffer life imprisonment.

3. Aggrieved by the judgment and order of the Trial  Court,  the  appellants
filed an appeal before the High Court of  Bombay,  pleading  provocation  on
the part of the deceased and lack of evidence and  prayed  for  reversal  of
the conviction and sentence. The High Court dismissed the appeal and  upheld
the verdict of the Trial Court. Hence, the present appeal.

4.     It has been contended  by  the  learned  counsel  on  behalf  of  the
appellants that on 27.08.1993 at  about  6.00  p.m.  when  it  was  raining,
Asaram entered the house of the appellants and raped appellant No.2, in  the
absence of her husband-appellant No. 1 and  children.  On  28.08.1993,  when
the accused/appellants were proceeding to report the incident at the  police
station, Asaram allegedly tried to prevent them from doing the same  and  as
a result a scuffle broke between the accused No.1 and  the  deceased-Asaram.
In the scuffle, the wife, accused/appellant No. 2 noticed  that  Asaram  had
over-powered her husband-appellant No.1, she therefore caught  hold  of  the
genitals of Asaram and tried to rescue appellant  No.1.  Thereafter,  Asaram
took out a knife from his pocket and  made  an  attempt  to  stab  appellant
No.1. It is further contended by the learned  counsel,  that  the  deceased-
Asaram during the course of the scuffle, fell on  the  knife,  thus  causing
injuries to himself. The  accused  No.1  removed  the  knife  and  proceeded
towards the police station where he produced  the  kife  before  the  P.S.I.
Andhale (P.W.8) and also lodged an F.I.R  against  the  deceased-Asaram  for
committing rape on his wife-appellant No. 2 under Section 376 of the IPC.

5. In justification of failure to lodge a complaint on the  very  same  day,
it is contended by the learned counsel on behalf of  the  accused-appellants
that it was raining  heavily  on  the  date  of  occurrence  of  the  crime;
therefore, they could not approach any villagers or the police station.

6.      On the other hand, it has been contended  by  the  prosecution  that
the accused-appellant No.2, noticing  that  the  deceased  Asaram  had  over
powered  the  accused-appellant  No.1,  caught  hold  of  his  genitals  and
facilitated accused-appellant No. 1 to give blows with knife. The  incidence
was witnessed originally by the complainant, Madhav  Gore  who  died  during
the pendency of the trial as well as Kishan Mohite (PW-2), Pandurang  (PW-3)
and Prahlad Mohite (PW-4). The deceased was taken to the hospital  at  Jalna
in a tractor. A seizure  Panchanama  was  made.  The  Head-Constable  Babula
Labhange (PW-7), while proceeding towards the said village met  the  injured
and recorded his dying declaration at about 10.45 a.m. on the same day.  The
doctor at Jalna  hospital  directed  that  the  deceased  be  taken  to  the
Government Medical College Hospital at  Aurangabad  as  he  was  in  serious
condition. The deceased was therefore, brought by the police  to  the  Ghati
Hospital at Aurangabad, where, the doctor on  examination  of  the  injured,
declared him dead.

    It is further contended by the prosecution that Madhav, the  complainant
filed his complaint which came to be registered  as  F.I.R  for  an  offence
punishable under Section 307 read with Section 34 of IPC,  which  after  the
death of the deceased Asaram was converted to Section 302 read with  Section
34 of the IPC. The blood stained clothes  of  the  deceased  were  sent  for
chemical analysis along with the weapon (knife) and  the  blood  samples  of
the accused and the deceased. The body was sent for post mortem to Dr.  Anil
Digambarrao Jinturkar (PW-5) on 28.08.1993. The accused came to be  arrested
on the very same day  and  charge-sheet  was  filed  on  completion  of  the
investigation.

7.  The Judicial Magistrate, 1ST Class committed the case  to  the  Sessions
Court at Jalna on 19.02.1994. Charges were framed against both  the  accused
under Section 302 read with  Section  34  of  the  IPC,  which  the  accused
consequently  denied  and  claimed  to  be  tried.  In  addition  to  3  eye
witnesses, panch witness-Fakir Mohite  PW-1,  was  examined  to  prove  spot
punchnama.

8. Dr. Anil Jinturkar (PW-5), in  his  disposition  has  stated  before  the
Trial Court that the injuries had been caused within 6 to  12  hours  before
the post mortem and in his cross examination,  he  specifically  denied  the
suggestion that injuries 1 and 2 were possible my means  of  fall  over  the
knife or during the scuffle. It was contended  that  this  evidence  clearly
supports  the  findings  recorded  by  the  Trial  Court  that  Asaram  died
homicidal death on account of the injuries sustained by him by  means  of  a
sharp weapon like a knife. The cause of death as  described  by  the  doctor
was hemorrhagic shock  due  to  stab  injury  over  the  chest  and  abdomen
involving liver and lung.

It  is  further  contended  by  the  prosecution  that  during   the   cross
examination of PW-3, he has stated that there was no rain during  the  night
of the incident (alleged rape). He also denied that  Asaram  had  taken  out
the knife and assaulted the accused no.1. The  evidence  of  PW-4  and  PW-5
further supported the description of the incident as narrated by PW-3.

9.     Further, as contended by the prosecution  that  the  High  Court  has
rightly held that the defence plea raised  by  the  accused  no.1  has  been
falsified by the ocular evidence of PW-2, PW-3 and  PW-4.  The  evidence  of
the three eyewitnesses is not impaired in any manner and  the  accused  no.2
had contradicted her statement made in the complaint. The  accused-appellant
No. 2 by holding the genitals of the deceased had  virtually  disarmed  him,
giving accused-appellant No. 1 the opportunity to catch hold of  his  collar
and inflict him with blows with the knife. Hence, it was a premeditated  act
to  attack  the  deceased.  The  High  Court  has  further  held  that   the
requirements in the Exception 4 of Section 300 IPC are not attracted in  the
present case as held by this Court in the case of Surinder  Kumar  v.  Union
Territory of Chandigarh[1]. The High Court  further  held  that  the  common
intention of the accused was shared and developed by  them  right  in  their
house. The possession of  the  deadly  weapon  by  accused  no.  1  and  the
injuries inflicted on the deceased that were caused on his vital parts  were
attributed to accused no.1.

10. On the basis of the aforesaid rival legal contentions, evidence  of  the
prosecution witnesses on record  and  the  reasoning  taken  by  the  courts
below, the following points would arise for consideration of this Court:

1. Whether the death of Asaram was homicidal in the light  of  the  evidence
produced by Prosecution Witnesses?

2. Whether the appellants in furtherance of their common intention, to  take
revenge of the alleged rape on accused No. 2, murdered  Asaram  and  whether
the accused are entitled to the benefit under Exception 4  of  Section  300,
IPC?

3. What order?



Answer to Point No.1:



11. The prosecution has relied on the evidence of PW-5, Dr.  Jinturkar,  who
examined and conducted the post-mortem of Asaram’s body. In  his  deposition
before the Trial Court, PW-5 stated as under:

   “External Injuries:

 An elliptical obliquely placed stab wound over the chest  and  right  side,
anteriorly in the 8th intercostals space, at midclavicular line, it  was  2”
x 0.75” x lung deep, it was directed medially  and  upwards,  torn  tags  of
under lying pleura were found to be protruding out of the wound,  there  was
oozing of dark reddish colour blood through the wound,  margins  clean  cut,
inverted, surrounding skin shows blood stains.

 An elliptical  obliquely  placed  stab  wound  over  the  chest  and  right
hypochohorium of the abdomen just about ½” below and lateral to  the  injury
No.1 and in the 9th intercostal space, it was  2”  x  0.75”  x  liver  deep,
directed medially downwards in slightly oblique  manner,  underlying  tissue
and dark reddish blood oozing out of the wound substance. Margins clean  cut
inverted, bevelling noticed at life margin  of  wound,  dried  blood  stains
seen over the skin in vicinity.

I.V. injections sites seen at cubital fosse.



INTERNAL INJURIES

 On internal examination I found congestion of meanings, brain was pale.

 The thorasix wall on the right side showed  corresponding  elliptical  stab
wound at all layers beneath injury no. 1 and no. 2  of  col.  No.17.  Pleura
shows clean cut elliptical stab below injury no. 1 and  2  as  described  in
col. No.17, with collection of 310 ml. of reddish fluid blood in  the  right
plural cavity, trachea contains reddish blood.

 Right lung shows collapsed appearance and an oblique stab  wound  of  2”  x
0.75” in size at its lower lobe, dark adherent  blood  clots  seen  at  this
site, involved tissue was friable.

 Left lung was pale in appearance, pericardium showed petechial hemorrhage.

 The Heart was contracted and right side contained  scanty  blood  and  left
side was empty.

 He further stated that the walls showed corresponding stab  injury  at  all
layers beneath injury No.2 of col. No.17. Peritoneum was  cut  obliquely  at
right hypondrium, measuring 2”  x  0.75”  in  dimension,  Peritoneal  cavity
contained about 450 ml of dark reddish blood  and  plenty  of  blood  clots.
Liver showed clean cut through stab injury of size 2” x 0.75” at  its  super
lateral aspect of right lobe of liver. The right lung was also  damaged.  He
further stated that these injuries were possible by means  of  a  knife  and
they were sufficient in ordinary course of nature to cause death.

He has further stated that these injuries would have been  caused  within  6
to 12 hours before the post mortem. According to him the cause of death  was
heamorrhagic shock due to stab  injuries  on  chest  and  abdomen  involving
liver and right lung and accordingly he issued post-mortem notes at  Exh.32.
he also issued provisional death certificate at Exh.33.

Further, PW-5 has categorically denied the suggestions that injuries  1  and
2 were possible by means of fall over  the  knife  or  in  scuffle  or  self
inflicted.”



In Black’s Law Dictionary, Abridged 6th Edition, 1991 at  page  819,  it  is
stated that:

“Preponderance of evidence is evidence which is of greater  weight  or  more
convincing than the evidence which is offered  in  opposition  to  it;  i.e.
evidence which as a whole shows that the fact sought to be  proved  is  more
probable than not.”



Thus, it is stated that the medical  evidence  acts  as  a  check  upon  the
testimony of eye witnesses and also as independent evidence in so far as  it
establishes  facts,  example,  nature  and  grievousness  of  the   injuries
suffered by the deceased. Therefore, the above mentioned  findings  of  PW-5
clearly supports the findings recorded by the Trial Court that the death  of
Asaram was homicidal on account of the injuries sustained by  him  by  means
of a sharp weapon like knife on 28.08.1993.



Answer to Point Nos.2 & 3 :



12. Now we have to examine whether the appellant  in  furtherance  of  their
common intention, to take revenge of the alleged  rape  on  accused  No.  2,
murdered Asaram.  For  this  purpose  the  prosecution  has  relied  on  the
following evidence:

Direct evidence of PW-2 Kisan, PW-3 Pandurang and PW-4 prahlad.

Dying declaration of the deceased Asaram at Exb.40

Evidence of Accused No.2 and circumstantial evidence on record.



Black’s Law Dictionary, Abridged 6th  Edition,  1991  at  page  819  further
states that:

“A person, who deposes before the Court a fact which he states he saw,  must
either speak truly or must have invented the story. Test  of  Proof  is  the
test of probabilities upon which a prudent man may base his opinion.”



Adverting to the  ocular  evidence  of  PW-2,  who  along  with  complainant
Madhavrao was sitting in front of their drawing room,  heard  the  shout  of
deceased Asaram and rushed to the said place of  incidence  and  found  that
the accused no.2 had caught hold of  the  genitals  of  the  deceased  while
accused no. 1 had caught hold of the collar of the  deceased.  PW-2  further
disclosed that the accused no.1 had a knife in his hand and he  inflicted  2
knife blows into the chest and stomach of Asaram, who  fell  on  the  ground
and the accused no. 1 and 2, went away.

    The testimony of PW-2 is fully corroborated with the testimonies of  PW-
3, which was further corroborated by the testimony of  PW-4,  who  had  also
stated the same version as deposed by PW-2 and PW-3.

13. Thus, the evidence on record led  by  the  prosecution  eyewitnesses  is
sufficient to show that the accused nos.  1  and  2  are  the  persons,  who
caused injuries on the vital parts of the body of the deceased.

14.  After hearing the learned counsel for both the  parties  and  carefully
examining the ocular evidence on record, we  would  like  to  bring  certain
relevant  facts  into  light  that  were  deposed  by  the  above  mentioned
witnesses in their testimony and cross examination,  which  the  High  Court
and the Trial Court have failed to notice the same.

     The fact that all the above witnesses saw the incidence of  scuffle  is
not disputed; however they entered the  scene  only  after  they  heard  the
shout of Asaram. What transpired prior to that, between the accused and  the
deceased has not been corroborated by anyone save the accused  no.  2.  None
of the witnesses seem to know the cause of  the  scuffle  and  neither  were
they able to hear the altercation that was going on between them.

     Further, all the  witnesses  saw  accused  no.1  inflicting  injury  to
deceased-Asaram by way of a knife that was  later  produced  as  the  murder
weapon. However, none of the witnesses have stated anywhere that  the  knife
belonged to the  accused  no.  1,  therefore,  the  question  that  who  had
actually possessed the knife first is still unknown.

15. Further, the evidence of PW-4 cannot be completely relied upon. This  is
because of the fact that in his cross  examination  he  has  clearly  stated
that the incident was already over by the time he  reached  the  said  place
where the scuffle had taken place.  The  facts  and  circumstances  must  be
reasonable and proximate and not conjectural and remote and the  prosecution
has failed to satisfy this Court beyond any reasonable doubt the reason  and
intent of the accused that resulted in the death of Asaram.

16. Now, we move on to the aspect of dying declaration. The evidence of  the
deceased at Exb.39 which was reduced to writing by PW-8 at Exb.40,  who  has
recorded the statement of Asaram at 10.45 a.m.,  stated  that  on  enquiring
about the assault, Asaram had stated that the accused  assaulted  him  under
the pretext that he had entered their house. Asaram had further stated  that
the accused assaulted him in the  morning  at  about  8  a.m.  There  is  no
infirmity in recording the statement of the said  dying  declaration  as  it
was recorded on the way when the injured  was  being  taken  to  the  police
station and from there to the hospital.

17.  Now we come to the evidence of accused  no.  2,  the  wife,  which  was
outrightly disregarded by the High Court as well as the Trial Court. In  her
deposition, she has clearly stated that the deceased Asaram had entered  her
house and had pressed her neck and put a knife over her chest rendering  her
defenceless and making it impossible for her to raise her voice and  thereby
he committed rape. She further stated that the incident took place when  her
husband and children were not at home. She has also  stated  that  when  her
husband reached home after a while she disclosed the  incident  of  rape  to
him. However, they could not approach the police station or the Sarpanch  on
the very same night as it was  raining  but  proceeded  towards  the  police
station the next morning at 8.00 a.m. She further stated  that  Asaram,  who
was sitting with the other prosecution witnesses, rushed  towards  them  and
prevented them  from  proceeding  further.  Thereby,  the  deceased  started
assaulting the accused. She has further stated that the  deceased  had  over
powered her husband and none of the  prosecution  witnesses  came  to  their
rescue. Then she caught hold of the testicles of  Asaram  and   her  husband
snatched the knife from the hand of the deceased who had pierced himself  in
the  stomach  during  the  scuffle  with  the  knife.  Her  husband  thereby
proceeded towards the police station  and  narrated  the  incidence  of  the
scuffle and lodged a complaint of rape against the deceased.

18.  Further, on the question of not raising the voice by  the  accused  no.
2, in our opinion, it  is  understandable  under  this  situation  that  the
accused no.2 could have been in a state of shock and scared and hence  would
not have been in a position to reveal the incident of the  rape  to  anyone.
Thus, the contention made by the prosecution that the delay in  lodging  the
complaint or revealing the same to the  Sarpanch  was  premeditated  on  the
part of the accused cannot be accepted by us on the fact  and  circumstances
of the case. Even for the sake of argument, if we consider  that  the  delay
in lodging the complaint  was  a  premeditated  plan  on  the  part  of  the
accused, then the accused would not have delayed  confronting  the  deceased
until 8.00 a.m. the next morning. Premeditation calls for construction of  a
plan to execute a certain act. If the accused  had  planned  on  confronting
and eventually committing the act of murder against the deceased, then  they
would not have  executed  the  same  in  their  own  neighbourhood,  in  the
presence of a number of witnesses. Hence, we are of the opinion  that  there
was no premeditation on the part of the accused and the scuffle  took  place
due to sudden provocation on the part  of  the  deceased.  This  is  further
corroborated by the fact that the  accused  themselves  reached  the  police
station and lodged a complaint against the deceased  and  confessed  to  the
scuffle, thereby submitting the knife (the  murder  weapon)  at  the  police
station.

19. The question however still remains as  to  the  nature  of  the  offence
committed by the accused and whether it falls under Exception 4  of  Section
300, IPC.

   In the case of Surinder Kumar  (supra), this Court has held as under:-

“7. To invoke this Exception four requirements must  be  satisfied,  namely,
(i) it was a sudden fight; (ii) there was no premeditation;  (iii)  the  act
was done in a heat of passion; and  (iv)The  assailant  had  not  taken  any
undue advantage or acted in a cruel manner. The cause of the quarrel is  not
relevant nor is it relevant who  offered  the  provocation  or  started  the
assault. The number  of  wounds  caused  during  the  occurrence  is  not  a
decisive factor but what is important is that the occurrence must have  been
sudden and unpremeditated and the offender must  have  acted  in  a  fit  of
anger. Of course, the offender must not have taken any  undue  advantage  or
acted in a cruel manner. Where, on a sudden quarrel, a person  in  the  heat
of the moment picks up a weapon which is handy and causes injuries,  one  of
which proves fatal, he would be entitled to the benefit  of  this  Exception
provided he has not acted cruelly.”

                                                         (emphasis supplied)

Further in the case of Arumugam v. State,[2] in support of  the  proposition
of law that under what circumstances Exception 4 to Section 300, IPC can  be
invoked if death is caused, it has been explained as under:-

“18. 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 Penal Code, 1860. 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 ‘undue advantage’ as used  in  the  provision
means ‘unfair advantage’.”



Further in the case of Satish Narayan Sawant v. State of Goa,[3] this  Court
has held as under:

“   24. …….Section 300 IPC further provides for the  Exceptions  which  will
constitute culpable homicide not amounting to murder  and  punishable  under
Section 304. When and if there is intent and knowledge then the  same  would
be a case of Section 304 Part I and if it is only a case  of  knowledge  and
not the intention to cause murder and bodily injury, then the same would  be
a case of Section 304 Part II.

28. ………Records clearly establish that there was  indeed  a  scuffle  between
the parties with regard to the availability of electricity in  a  particular
room and during the course of scuffle the appellant also received an  injury
which was simple in nature and that there was heated exchange of  words  and
scuffle between the parties before the  actual  incident  of  stabbing  took
place. There is, therefore, provocation and the  incident  happened  at  the
spur of the  moment.  That  being  the  factual  position,  we  are  of  the
considered view that the present case cannot be said  to  be  a  case  under
Section 302 IPC but it is a case falling under Section304 Part  II  IPC.  It
is trite law that Section 304 Part II comes into  play  when  the  death  is
caused by doing an act with knowledge that it is likely to cause  death  but
there is no intention on the part of the accused either to  cause  death  or
to cause such bodily injury as is likely to cause death.”



Thus, if there is intent and knowledge then the same  would  be  a  case  of
Section 304 Part I and if it is only a case of knowledge and  not  intention
to cause murder and bodily injury then the same  would  fall  under  Section
304  Part  II.  We  are  inclined  to  the  view  that  in  the  facts   and
circumstances  of  the  present  case,  it   cannot   be   said   that   the
appellants/accused had any intention of causing the death  of  the  deceased
when they committed the act in question.  The incident  took  place  out  of
grave and sudden provocation and hence  the  accused  are  entitled  to  the
benefit of Section 300 Exception 4 of IPC.

Thus, in entirety, considering the factual scenario of  the  case  on  hand,
the legal evidence on record and in the background of legal principles  laid
down  by  this  Court  in  the  cases  referred  to  supra,  the  inevitable
conclusion is that the act of the accused-appellants was  not  a  cruel  act
and the accused did not take undue advantage of the  deceased.  The  scuffle
took place in the heat of passion and all  the  requirements  under  Section
300 Exception  4,  IPC  have  been  satisfied.  Therefore,  the  benefit  of
Exception 4 under Section 300, IPC is attracted to the fact  situations  and
both the appellants are equally entitled to this benefit.

20.   Thus, considering the factual background and the  legal  position  set
out above, the inevitable conclusion is that the appropriate  conviction  of
the appellants would be under Section 304 Part II  IPC  instead  of  Section
302 IPC. Hence, the sentence of imprisonment for 10  years  would  meet  the
ends of justice.



21.   The appeal is disposed of in the above said terms.



                                                ……………………………………………………………………J.
                     [DIPAK MISRA]





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



New Delhi,                                         September 25, 2014

-----------------------
[1]

      [2] (1989) 2 SCC 217

[3]

          [4]      (2008)     15     SCC     590,      at      page      595








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