~ GHAPOO YADA V AND ORS. A

v.

STATE OF M.P.

FEBRUARY 17, 2003

[SHIVARAJ V. PATIL AND ARIJIT PASAYAT, JJ.] B

Penal Code, 1860; Ss. 148"149, Exception 4 to Section 300:

Deceased succumbed to injuries inflicted by accused in a sudden

c

quarrel-Trial Court convicted accused under Section 300 rlw Section 149-

Upheld by High Court-On appeal, Held: Though one of the injuries was held

to be of grievous nature, there is no material to show that injury was inflicted

when the deceased was

in helpless condition-Besides assaults were made at

random and

it was not the case of the prosecution that accused came prepared

for attacking the deceased-Under the facts

and circumstances of the case,

D

causing of such injury could not be termed to be either in a cruel or unusual

manner but in the heat

of passion upon a sudden quarrel-Hence, Exception

JV to Section

300 /PC attracted--Conviction and sentence modified accordingly.

Exception I &

IV to Section

300 /PC-Distinction between-Discussed

E

According to the prosecution, there was an altercation regarding

cutting

of trees on the disputed land between the deceased, his brother .....

(PW2) and father (PWl) on the one side and accused, his three sons and

nephew on the other. The accused persons assaulted the deceased and also

threatened his brother and father. A complaint was lodged by the father

F of the deceased and the deceased was admitted in a hospital in injured

condition where his dying declaration was recorded. He succumbed to his

injuries on the next day.

Trial

Court found the accused persons guilty and convicted and

sentenced them under

Section 148 and 302 r/w Section 149 IPC. In appeal,

G

High Court upheld the conviction and sentence. Hence the present appeal •

..

It was contended for the appellant that since the injuries caused by

the appellant on the deceased were in the course

of sudden quarrel without

premeditation and without cruel intent, Exception IV to

Section 300 IPC

.. was attracted.

H

,)

69

70 SUPREME COURT REPORTS (2003] 2 S.C.R.

A Partly allowing the appeal, the Court

HELD: I.I. To bring a case within Exception 4 to Section 300 IPC

all the ingredients mentioned therein must

be found. The 'fight' occurring

in Exception 4 to

Section 300 IPC is not d~fined in the IPC. It takes two

to make a fight. Heat

of passion requires that there must be no time for

B the passion to cool down. 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

C 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'. [73-F, G, H; 74-A, BJ

D 1.2. In the instant case, out of the seven injuries, only injury No.2

was held to

be of grievous nature, which was sufficient in the ordinary

course

of nature to cause death of the deceased. The infliction of the

injuries, and their nature proves the intention

of the accused appellants,

but causing of such injuries cannot

be termed to be either in a cruel or

unusual manner. After the injuries were inflicted the injured has fallen

E down, but there is no material to show that thereafter any injury was

inflicted when

he was in helpless condition. The assaults were made at

random. Even the previous altercations were verbal and not physical. It

is not the case of the prosecution that the accused appellants had come

prepared and armed for attacking the deceased. This goes to show

that

F in the heat of passion upon a sudden quarrel followed by a fight the

accused persons had caused injuries on the deceased, but not acted in cruel

or unusual manner. That being so, Exception 4 to

Section 300 IPC is

clearly applicable. [74-B, C, DJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

G 229 of 2003.

H

From the Judgment and Order dated 18.4.200 I of the Madhya Pradesh

High Court

in

Crl. A. No. 718 of 1989.

L.N. Gupta for the Appellants.

I

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GHAPOO YADAV v. STATE OF M.P. [ARIJIT PASA YAT, J.] 71

R.P. Gupta, Ms. Kamakshi S. Mehlwal, Sanjeev Kumar and Ms. Vaneeta

Mehra for the Respondent.

The Judgment

of the Court was delivered by

ARIJIT PASA YAT, J. Leave granted.

Appellants (hereinafter referred to

as 'the accused' by their respective

names) question legality

of the judgment of the Madhya

Pradesh High Court

dated 18.4.200 I, upholding their conviction for offences punishable under

Sections 148 and 302 read with Section 149 of the Indian Penal Code, 1860

A

B

(in short '.the !PC') and the sentence of rigorous imprisonment for three years C

and fine of Rs. 2,000 with default stipulation, and imprisonment for life and

fine

of Rs.

5,000 with default stipulation respectively.

Factual scenario

as described by the prosecution is essentially as follows:

Lekhram

(PW-2) and Gopal (hereinafter referred to as 'the deceased') D

were sons of Ramlal (PW-I). Accused Gapoo Yadav is the father of accused

Janku, Kewal and Mangal Singh. Accused Sunder is the nephew of accused

Gapoo. Deceased, the witnesses and the accused belonged to the same village

and there was land dispute between them. On the request made by Ramlal

(PW-I), measurement of the land was done by the revenue authority. On the

basis

of the said measurement, it was found that land belonging to accused

Mangat

Singh was in the possession ofRamlal (PW-I) and over the said land

E

a berry tree existed. Though, initially the tree was in possession of Ramlal,

after measurement he parted with possession thereof. Said tree was cut by the

family members

of Ramlal (PW-I) a day prior to the incident for which

deceased had altercation with the accused persons.

On the date of incident p

i.e. 9.6.1986 there were altercations between the accused persons and the

deceased, his brother Lekhram and father Ramlal. Accused Janku enquired

from the deceased as to why they were cutting the tree. Lekhram responded

that

it was cut lhree days prior to the incident as the tree belonged to

t)lem

and was planted by their family members. Deceased claimed that he had not

cut the tree. This led to altercations and scuffles amongst them and the

accused persons assaulted deceased, which resulted a fracture

of his leg.

When Ramlal and Lekhram went to save him, the accused persons ran towards

them threateningly. Ramlal and Lekhram fled away from the place

of incident,

and returned later on with the other villagers. They took the deceased who

G

was then grasping for

breath on a cot to Maharajpur Police Station. Information H

72 SUPREME COURT REPORTS [2003) 2 S.C.R.

A was given by the deceased to the police at 8.45 p.m. He was sent for treatment

and was examined by

Dr. R.K. Chaturvedi

(PW-3). On examination he found

7 injuries on his body. His dying declaration was recorded. Later on, deceased

took

his last breath on

10.6.1986 at 2.00 a.m. Dr. Chaturvedi sent the intimation

of death to the Police Station. Though initially case was registered under

Section 307 IPC, same was converted to one under Section 302 !PC. Port

B mortem was conducted by Dr. D.N. Adhikari (PW-6). Investigation was

undertaken and

on completion thereof charge sheet was filed indicating

alleged

commission of offences punishable under Sections 147, 148 and 302 read

with Section l49 IPC. The case was committed to the Court of Sessions, and

finally charges 'were framed under Sections 148 and 302 read with Section

C 149 !PC.

Accused persons pleaded innocence and claimed false implication.

On consideration of the evidence on record, the Trial Court found that

the accused persons were guilty and accordingly convicted and sentenced

D them as aforenoted. It is to be noted that apart from the evidence of the two

eye-witnesses, reliance was also placed on the dying declaration

(Ex.P-1)

recorded by Dr. Chaturvedi (PW-3). In appeal, the conviction and

consequential sentences imposed were upheld.

Though,

in support of the appeal learned counsel for the appellants

E attacked the findings recorded, ultimately he confined his arguments to the

question relating to nature

of the offence. He further conceded that if the

factual findings

as recorded are affirmed then

Sections 148 and 149 would

have application.

In our view, the approach is well founded because the Trial

Court and the High Court having analysed the evidence

in detail, concluded

that accused persons were culprits.

F

It was the stand of the learned counsel for the appellants that the injuries

sustained by the deceased were

in

course of sudden quarrel, without pre­

meditation and without cruel intents and, therefore, Section 302 IPC was not

applicable. According to him, Section 302 IPC cannot be applied even if the

prosecution case

is accepted in toto, and Exception 4 to

Section 300 is clearly

G applicable.

In response, learned counsel appearing for the State of Madhya Pradesh

submitted that it is a case to which Section 302 has clear application, and the

courts below have rightly applied

it along with

Sections 148 and 149 IPC.

H The question is about applicability of Exception 4 to Section 300, !PC.

I

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GHAPOO YADAV v. STATE OF M.P. [ARIJIT PASAYAT, J.) 73

For bringing in its operation

it has to be established that the act was committed A

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, !PC covers acts done in a sudden

fight.

The said exception deals with a case of prosecution not covered by the B

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 C

not otherwise do. There is provocation in Exception 4 as in Exception I; 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' D

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 I. There is no previous

deliberation or determination to fight. A fight suddenly takes place, for which

E

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 tum 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

F

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, !PC is not defined in the !PC. It

takes two to make a fight. Heat

of passion requires that there must be no time G

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. H

74 SUPREME COURT REPORTS (2003] 2 S.C.R.

A 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'.

B In the case at hand, out of the seven injuries, only injury No.2 was held

to be of grievous nature, which was sufficient in the ordinary course of

nature to cause death of the deceased. The infliction of the injuries, and their

nature proves the intention of the accused appellants, but causing of such

injuries cannot be termed to be either in a cruel or unusual manuer for ·not

C availing the benefit of Exception 4 to Section 300 IPC. After the injuries

were inflicted the injured has fallen down, but there is no material to show

that thereafter any injury was inflicted when he was in helpless condition.

The assaults were made at random. Even the previous altercations were verbal

and not physicals. It is not the case of the prosecution that the accused

appellants had come prepared and armed for attacking the deceased. The

D previous disputes over land do not appear to have assumed characteristics of

physical combat. This goes to show that in the heat of passion upon a sudden

quarrel followed by a fight the accused persons had caused injuries on the

deceased, but had not acted in cruel or unusual manner. That being so,

Exception 4 to Section 300 IPC is clearly applicable. The fact situation bears

E great similarity to those in Sukhbir Singh v. State of Haryana, (2002] 3 sec

327). Appellants are to be convicted under Section 304 Part I, IPC and

custodial sentence of 10 years and fine as was imposed by the Trial Court

would meet the ends of justice. The appeal is allowed to the extent indicated

above.

S.K.S. Appeal allowed.

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