published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40685
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1249 OF 2013
(@SPECIAL LEAVE PETITION (CRL) No.4928 of 2011)
STATE OF ORISSA … APPELLANT
VERSUS
KHAGA @ KHAGESWAR NAIK & ORS. …RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
State of Orissa, aggrieved by the judgment and order
dated 1st September, 2009 passed in Criminal Appeal No.274 of
1997 whereby the Division Bench of the High Court has altered
the conviction of the respondents from Section 302/34 to Section
304 Part II of the Indian Penal Code (hereinafter to be referred
to as ‘the IPC’), has preferred this Special Leave Petition.
Leave granted.
In the present appeal, as we are concerned with the
nature of the offence said to have been committed by the
respondents (hereinafter to be referred to as ‘the convicts’),
we shall refer to only those facts which are necessary for
decision on the said issue. Occurrence in the present case had
taken place in Raghunathpali, a hamlet within the district of
Sambalpur in the State of Orissa. As usual, on 11th October,
1995 Mohini Naik and her father, Tikeshwar Naik were sleeping at
their home in separate rooms adjoining each other. When the
entire village was fast asleep, the convicts came to their house
at 11.00 P.M. and knocked the door in which Mohini, the rustic
villager was sleeping. She was asked to open the door of her
room. She could recognize the convict Khageswar from his voice
and on enquiry as to who was knocking the door, Khageswar
disclosed his name. She opened the door and saw the three
convicts standing at the door. Two of them i.e. Khageswar and
Kampa entered into her room and molested her. She raised alarm
whereupon her father, Tikeshwar woke up and arrived at the spot
and abused the convicts in obscene language. All the three
convicts caught hold of her father, assaulted him by kicks and
blows and dragged him towards the orchard. He was followed by
his daughter, Mohini, the informant of the case. She was
threatened that if she will come out, they will kill her. Mohini
saw her father being assaulted from a distance by Khageswar and
Dusasan. While Tikeswar was abusing the convicts, Khageswar
brought one ‘budia’ from his house and gave blows to him.
Similarly, convict Dusasan brought a ‘lathi’ from his home and
assaulted her father. Ultimately, Mohini could see the dead body
of her father lying in ‘Nala’ at about 3.00 P.M. on 12th
October, 1995.
Police after usual investigation submitted the
charge-sheet and the convicts were ultimately committed to the
Court of Session to face the trial. The convicts were charged
for commission of the offences under Sections 457,354,506,302
and 201/34 of the IPC. They pleaded not guilty and claimed to
be tried. Their defence is false implication but no defence
witness has been examined.
The trial court on appreciation of evidence came to the
conclusion that the prosecution has been able to prove its case
beyond all reasonable doubt against the convicts and
accordingly, it convicted them for offences under Sections
457,354,506,302, 201/34 of the IPC. On appeal, the High Court
accepted the case of the prosecution but held that the
allegations proved construed an offence under Section 304Part-II
of the IPC. Accordingly, while maintaining the conviction of the
respondents under Sections 457,354,506 and 201/34 of the IPC,
the High Court altered their conviction from Section 302/34 of
the IPC to that of Section 304 Part II of the IPC and sentenced
them to undergo rigorous imprisonment for a period of eight
years for offence under Section 304, Part II of the IPC. While
doing so, the High Court observed as follows:
“ 17. We, however, find that the
prosecution has failed to establish that the
accused persons had any prior motive or
pre-meditation to kill deceased Tikeswar and
admittedly, the prosecution has not been able to
establish that there was any enmity between
deceased Tikeswar or his daughter Mohini (P.W.4)
with the accused persons. It appears, the accused
persons who had gone to the house of P.W.4 to
commit sexual act, on being abused by Tikeswar in
obscene language, got provoked and attacked
Tikeswar in a fit of anger and on the spur of
the moment, without any prior planning or design.
The act of the accused persons appears to be more
by way of sudden retaliation in the heat of
passion, on being abused by deceased Tikeswar in
obscene language and was not pre-planned or
intentional. Accordingly, we feel, the interest
of justice would be best served, if the
conviction of the accused persons under Section
302/34 IPC is modified and reduced to one under
Section 304 Part II IPC. The conviction of the
accused persons under Sections 457/354/506/201/34
IPC needs no interference.”
This is how the appellant- State of Orissa is before us and
challenges the alteration of conviction from Section 302/34 to
that of Section 304 Part II of the IPC.
Mr. Radha Shyam Jena, learned counsel appearing on
behalf of the appellant submits that the
allegations proved clearly make out a case of murder punishable
under Section 302 of the IPC and the High Court erred in
altering the same to Section 304 Part II of the IPC. Mrs.
Rachana Joshi Issar, learned counsel appearing on behalf of the
respondents supports the judgment of the High Court and contends
that the offence having been committed without pre-meditation in
a heat of passion, Exception 4 to Section 300 of the IPC is
clearly attracted and hence the allegation proved is culpable
homicide not amounting to murder. Accordingly, she submits that
the order of the High Court does not call for any interference.
The rival submission necessitates examination of
Exception 4 to Section 300 of the IPC, same reads as follows:
“ 300. Murder.-
xx xx xx
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 having taken
undue advantage or acted in a cruel or unusual
manner.
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.
The aforesaid view finds support from a judgment of this
Court in Pappu vs. State of M.P. (2006) 7 SCC 391 in which it
has been held as follows:
“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
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…..“
In this background when we consider the facts of the
present case, we have no manner of doubt that Exception 4 to
Section 300 of the IPC is not at all attracted. In the case in
hand, the convicts had entered the room of the daughter of the
deceased in midnight, molested her and the poor father, perhaps
because of his age, could not do anything other than to abuse
the convicts. He gave choicest abuses but did not fight with the
convicts. Verbal abuses are not fight as it is well settled that
at least two persons are needed to fight. Therefore, this
ingredient is not satisfied.
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 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.
So far as the convict, Kampa @ Sricharan Naik is
concerned, he is convicted with the aid of Section 34 of the
IPC. All of them have come together and participated in the
crime which goes to show that these convicts shared the common
intention.
In the face of what we have observed above, it is
clear that the High Court erred in holding that the offence for
which the convicts can be held guilty shall be Section 304 Part
II of the IPC.
In the result, we allow this appeal, set aside that
portion of the judgment of the High Court whereby it had altered
the conviction of the respondents from Section 302/34 of the IPC
to that of Section 304/34 of the IPC and restore that of the
trial court. The respondents, if have not already undergone the
sentence awarded by the trial court, shall forthwith be taken
into custody to serve out the remainder of the sentence.
........................J
[R.M.LODHA]
........................J
[CHANDRAMAULI KR. PRASAD]
NEW DELHI
AUGUST 23, 2013.
-----------------------
8
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1249 OF 2013
(@SPECIAL LEAVE PETITION (CRL) No.4928 of 2011)
STATE OF ORISSA … APPELLANT
VERSUS
KHAGA @ KHAGESWAR NAIK & ORS. …RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
State of Orissa, aggrieved by the judgment and order
dated 1st September, 2009 passed in Criminal Appeal No.274 of
1997 whereby the Division Bench of the High Court has altered
the conviction of the respondents from Section 302/34 to Section
304 Part II of the Indian Penal Code (hereinafter to be referred
to as ‘the IPC’), has preferred this Special Leave Petition.
Leave granted.
In the present appeal, as we are concerned with the
nature of the offence said to have been committed by the
respondents (hereinafter to be referred to as ‘the convicts’),
we shall refer to only those facts which are necessary for
decision on the said issue. Occurrence in the present case had
taken place in Raghunathpali, a hamlet within the district of
Sambalpur in the State of Orissa. As usual, on 11th October,
1995 Mohini Naik and her father, Tikeshwar Naik were sleeping at
their home in separate rooms adjoining each other. When the
entire village was fast asleep, the convicts came to their house
at 11.00 P.M. and knocked the door in which Mohini, the rustic
villager was sleeping. She was asked to open the door of her
room. She could recognize the convict Khageswar from his voice
and on enquiry as to who was knocking the door, Khageswar
disclosed his name. She opened the door and saw the three
convicts standing at the door. Two of them i.e. Khageswar and
Kampa entered into her room and molested her. She raised alarm
whereupon her father, Tikeshwar woke up and arrived at the spot
and abused the convicts in obscene language. All the three
convicts caught hold of her father, assaulted him by kicks and
blows and dragged him towards the orchard. He was followed by
his daughter, Mohini, the informant of the case. She was
threatened that if she will come out, they will kill her. Mohini
saw her father being assaulted from a distance by Khageswar and
Dusasan. While Tikeswar was abusing the convicts, Khageswar
brought one ‘budia’ from his house and gave blows to him.
Similarly, convict Dusasan brought a ‘lathi’ from his home and
assaulted her father. Ultimately, Mohini could see the dead body
of her father lying in ‘Nala’ at about 3.00 P.M. on 12th
October, 1995.
Police after usual investigation submitted the
charge-sheet and the convicts were ultimately committed to the
Court of Session to face the trial. The convicts were charged
for commission of the offences under Sections 457,354,506,302
and 201/34 of the IPC. They pleaded not guilty and claimed to
be tried. Their defence is false implication but no defence
witness has been examined.
The trial court on appreciation of evidence came to the
conclusion that the prosecution has been able to prove its case
beyond all reasonable doubt against the convicts and
accordingly, it convicted them for offences under Sections
457,354,506,302, 201/34 of the IPC. On appeal, the High Court
accepted the case of the prosecution but held that the
allegations proved construed an offence under Section 304Part-II
of the IPC. Accordingly, while maintaining the conviction of the
respondents under Sections 457,354,506 and 201/34 of the IPC,
the High Court altered their conviction from Section 302/34 of
the IPC to that of Section 304 Part II of the IPC and sentenced
them to undergo rigorous imprisonment for a period of eight
years for offence under Section 304, Part II of the IPC. While
doing so, the High Court observed as follows:
“ 17. We, however, find that the
prosecution has failed to establish that the
accused persons had any prior motive or
pre-meditation to kill deceased Tikeswar and
admittedly, the prosecution has not been able to
establish that there was any enmity between
deceased Tikeswar or his daughter Mohini (P.W.4)
with the accused persons. It appears, the accused
persons who had gone to the house of P.W.4 to
commit sexual act, on being abused by Tikeswar in
obscene language, got provoked and attacked
Tikeswar in a fit of anger and on the spur of
the moment, without any prior planning or design.
The act of the accused persons appears to be more
by way of sudden retaliation in the heat of
passion, on being abused by deceased Tikeswar in
obscene language and was not pre-planned or
intentional. Accordingly, we feel, the interest
of justice would be best served, if the
conviction of the accused persons under Section
302/34 IPC is modified and reduced to one under
Section 304 Part II IPC. The conviction of the
accused persons under Sections 457/354/506/201/34
IPC needs no interference.”
This is how the appellant- State of Orissa is before us and
challenges the alteration of conviction from Section 302/34 to
that of Section 304 Part II of the IPC.
Mr. Radha Shyam Jena, learned counsel appearing on
behalf of the appellant submits that the
allegations proved clearly make out a case of murder punishable
under Section 302 of the IPC and the High Court erred in
altering the same to Section 304 Part II of the IPC. Mrs.
Rachana Joshi Issar, learned counsel appearing on behalf of the
respondents supports the judgment of the High Court and contends
that the offence having been committed without pre-meditation in
a heat of passion, Exception 4 to Section 300 of the IPC is
clearly attracted and hence the allegation proved is culpable
homicide not amounting to murder. Accordingly, she submits that
the order of the High Court does not call for any interference.
The rival submission necessitates examination of
Exception 4 to Section 300 of the IPC, same reads as follows:
“ 300. Murder.-
xx xx xx
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 having taken
undue advantage or acted in a cruel or unusual
manner.
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.
The aforesaid view finds support from a judgment of this
Court in Pappu vs. State of M.P. (2006) 7 SCC 391 in which it
has been held as follows:
“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
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…..“
In this background when we consider the facts of the
present case, we have no manner of doubt that Exception 4 to
Section 300 of the IPC is not at all attracted. In the case in
hand, the convicts had entered the room of the daughter of the
deceased in midnight, molested her and the poor father, perhaps
because of his age, could not do anything other than to abuse
the convicts. He gave choicest abuses but did not fight with the
convicts. Verbal abuses are not fight as it is well settled that
at least two persons are needed to fight. Therefore, this
ingredient is not satisfied.
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 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.
So far as the convict, Kampa @ Sricharan Naik is
concerned, he is convicted with the aid of Section 34 of the
IPC. All of them have come together and participated in the
crime which goes to show that these convicts shared the common
intention.
In the face of what we have observed above, it is
clear that the High Court erred in holding that the offence for
which the convicts can be held guilty shall be Section 304 Part
II of the IPC.
In the result, we allow this appeal, set aside that
portion of the judgment of the High Court whereby it had altered
the conviction of the respondents from Section 302/34 of the IPC
to that of Section 304/34 of the IPC and restore that of the
trial court. The respondents, if have not already undergone the
sentence awarded by the trial court, shall forthwith be taken
into custody to serve out the remainder of the sentence.
........................J
[R.M.LODHA]
........................J
[CHANDRAMAULI KR. PRASAD]
NEW DELHI
AUGUST 23, 2013.
-----------------------
8
