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CASE NO.:

Appeal (crl.) 870 of 2002

PETITIONER:

Dhirajbhai Gorakhbhai Nayak

RESPONDENT:

Vs.

State of Gujarat

DATE OF JUDGMENT: 25/07/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J.

One Hasmukhbhai Patel (hereinafter referred to as 'the

deceased') was the victim of homicidal death on 12.8.1993.

The appellant Dhirajbhai was alleged to be the assailant.

The learned Additional Sessions Judge, Surat, held him

guilty of offence punishable under Section 302 of Indian

Penal Code, 1860 (for short 'IPC') and sentenced to suffer

imprisonment for life and to pay fine of Rs.2000/- with

default stipulation. It was further directed that in case

fine is paid, the same is to be paid to the deceased's widow

Dahiben as compensation. Appeal before the High Court of

Gujarat did not bring any relief to the accused-appellant

and by the impugned judgment conviction and sentence were

upheld.

Accusations which led to trial of the accused-appellant

are as follows:

Dahiben (PW1) and the deceased were staying in house

No. 7/1427 situated in Dhastripuara in the city of Surat

with her two sons Dhanesh (PW 3) and Narendra. About 10

days prior to the date of occurrence accused-appellant had

taken his small daughter to the in-law's house and have kept

her there. On his return, the deceased scolded him for

leaving a small child at a distant place and the accused was

very angry for this interference in his personal matters and

that led to quarrels - first verbal and then physical.

Subsequently on the date of occurrence at about 1.30 p.m.

when the deceased was sitting at a temple accused-appellant

warned him and challenged him saying that if he wanted to

fight he was ready for the same. This resulted in exchange

of words and a fight. Resident of the locality and PW1

separated them. In the evening Naranbhai (PW8), a friend of

deceased came to the house of deceased and told Dahiben that

since the quarrel was going on in the house, he would take

the deceased for seeing a movie. PW1 agreed and both PW8

and deceased went to see a movie late in the night. As it

was mid night when they got back, PW8 and deceased slept on

the verandah of the house while PW1 and 3 slept inside the

house. At about 4.00 p.m. in the morning on hearing shouts

for help PW1 opened the door and went outside. In the

meantime PW3 also woke up and he joined his mother outside

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the house. They saw the deceased in bleeding condition.

They also found the accused-appellant delivering blows on

the deceased. PW1 called out his name and asked him as to

why he was doing this and if there was any problem, that

could be sorted out in the morning. The appellant on

hearing this immediately ran away. PW-1 went out and asked

for help from the neighbours. Many of them came to her

house. The deceased was taken to hospital where he breathed

his last at about 4.45 a.m. First information report was

lodged at the police station at 5.15 a.m. Investigation was

undertaken and charge sheet was placed on completion of

investigation. Ultimately, the matter came to trial by

learned Additional Sessions Judge, Surat. Ten witnesses

were examined to further the prosecution version. Testimony

of PWs 1 and 3 was accepted to be credible and as noted

above, learned Trial Judge convicted and sentenced the

accused. The High Court in appeal, did not interfere.

Learned counsel for the appellant submitted that the

Trial Court as well as the High Court lost sight of certain

salient features of the case. The accused has taken a

definite plea that PW1 and PW8 were the authors of the crime

as they had an illicit relationship which was not liked by

the deceased. On the night of occurrence they attacked the

deceased and his life was snuffed out. Strong reliance was

placed on the evidence of PW2 who resiled from his statement

made during investigation. It was submitted that evidence

of such witness is not necessarily to be wiped out and that

portion of evidence which helps either the prosecution or

the defence can be taken note of. Presence of Dhanesh (PW3)

at the spot is clearly ruled out the evidence of PW1.

Additionally the medical evidence more particularly

testimony of Dr. Rajivbhai (PW7) clearly establishes that

the injury which is stated to have been caused by the

accused could not have been caused by the weapon claimed to

be the weapon of assault. The name of PW3 being absent in

the FIR, his presence is doubtful. Though PW1 claimed that

her clothes and those of PW8 were blood stained, when they

tried to carry the deceased in injured condition to the

hospital, the said apparels were not seized by the police

and this has been accepted by the Investigating Officer. It

was pointed out that the evidence of witnesses clearly shows

that it was a dark night and it was impossible to see

anything. So the claim of PW1 and PW3 that they saw the

accused-appellant assaulting the deceased is clearly

unacceptable.

It was also submitted that if the prosecution case is

accepted in its totality, Exception 4 to Section 300 is

clearly applicable as alleged assaults were made in course

of a quarrel. Motive for the crime as claimed by the

prosecution is too fragile to warrant acceptance.

Per contra, learned counsel for the State of Gujarat

submitted that both the Trial Court as well as the High

Court have found version about alleged illicit relationship

between PW1 and PW8 to be a myth and figment of imagination.

Evidence of PW1 and PW3 has not been shaken in spite of the

incisive cross-examination. The courts below have rightly

placed reliance on their evidence. Medical evidence is in

no way at variance with ocular evidence and in any event the

ocular evidence being cogent has been rightly accepted. The

case is clearly covered by Section 302 IPC and Exception 4

to Section 300 has no application. Motive is not a

determinative factor to decide whether a crime has been

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committed or not.

The rival contentions need careful consideration.

Coming to the plea that name of PW3 does not appear in

the First Information Report, it has to be noted that death

took place, according to medical records, at about 4.45 a.m.

and the First Information Report was lodged at about 5.15

a.m. In other words the First Information Report was lodged

almost immediately after the occurrence. As observed by

this Court in Sri Bhagwan v. State of Rajasthan (2001 (6)

SCC 296) the mental condition of the person who has just

seen a close relative, the bread-earner loose his life

cannot be lost sight of. The psychic trauma cannot be

ignored. Merely because PW3's name did not figure in the

First Information Report, that is not a suspicious

circumstance. Evidence of PWs 1 and 3 has been analysed by

both trial Court and High Court minutely and found to be

credible and cogent. Nothing infirm therein could be shown

to weaken their acceptability and reliability. The Trial

Court and the High Court were justified in placing reliance

thereon.

Coming to the evidence of PW2 on which reliance has

been placed by the learned counsel for the accused-

appellant, he has been rightly described as untruthful by

the Trial court and the High Court. He accepted to have

come near the house of the deceased on hearing shouts of

Dahiben. But he stated that he did not enquire how he died

and who was the assailant. This conduct was to say the least

most unusual and abnormal. It was not because he was shocked

and, therefore, did not ask. He does not say so. On the

contrary, he describes in graphic detail about alleged

illicit relationship between PW1 and PW8. The Trial Court

has rightly observed that he has tried to create a smoke

screen. As regards the alleged discrepancy between medical

evidence and ocular evidence it is to be noted that a

combined reading of the evidence of PW9 who examined the

deceased after he was brought to the hospital and PW7 who

conducted the post-mortem, it is clear that there is no

discrepancy in the medical evidence vis-à-vis ocular

evidence. Only in respect of injury no.1, there appears to

be some confusion but that does not dilute the prosecution

evidence. It would be erroneous to accord undue primacy to

the hypothetical answers of medical witnesses to exclude the

eye witnesses account which has to be tested independently

and not treated as "variable" keeping in view the medical

evidence as "constant". (See State of U.P. v. Krishna

Gopal and Anr. (AIR 1988 SC 2154)

The residuary plea is about applicability of Exception

4 to Section 300.

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 offender having taken undue advantage and not

having acted in a cruel or unusual manner.

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

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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 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'.

The provision has no application to the facts of

present case.

When the factual background established by the materials

on record is tested with the legal principles indicated, the

inevitable conclusion is that the appeal is without merit

and deserves dismissal. We direct so.