Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 2494 OF 2014

(Arising out of S.L.P.(Crl.) No. 2307 of 2012)

K. Ravi Kumar Appellant(s)

Versus

State of Karnataka Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1.Leave granted.

2.This appeal arises out of a judgment and

order dated 27.01.2010 passed by the High Court

of Karnataka at Bangalore whereby Criminal

Appeal No. 689/2006 filed by the appellant herein

arising out of judgment and order dated

Page 2 01.02.2006 passed by the Additional Sessions

Judge, Mysore in S.C. No. 306/2004 has been

dismissed thereby upholding the appellant's

conviction for the offence of murder punishable

under Section 302 of the Indian Penal Code, 1860

(hereinafter referred to as “the IPC”) and the

sentence of imprisonment for life with a fine of

Rs.10,000/- awarded to him. In default of payment

of fine, the appellant has been sentenced to

undergo rigorous imprisonment for further period

of six months. The appellant has also been

convicted for the offence punishable under Section

498-A of the IPC and sentenced to undergo

rigorous imprisonment for two years with a fine of

Rs.2,000/-. In default of payment of fine, the

appellant has been sentenced to undergo rigorous

imprisonment for further period of two months.

Substantive sentence for both the offences are

directed to run concurrently.

3.The factual matrix in which the appellant

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Page 3 came to be prosecuted and convicted has been set

out in detail by the trial Court as also the High

Court in the orders passed by them. Therefore, we

need not recapitulate the same all over again

except to the extent it is necessary to do so for the

disposal of this appeal.

4.Briefly stated, the incident that eventually

culminated into the death of the appellant's wife,

Padma and the consequent prosecution of the

appellant/husband are as follows:

(a)On 22.5.1995, Padma, the daughter of

Lakshmi, PW-2 (complainant) was married to the

appellant. At the time of marriage, the appellant

was a trainee constable in KSRP at Bangalore. On

completion of the training, the appellant was

posted at Bangalore and started living with his in-

laws. In 1996, the couple was blessed with their

first child, a son named ‘Nandan’. The appellant

with his wife and son (Nandan) shifted to his

parental house at Mandya, a nearby village and

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Page 4 started living with his parents. After sometime, the

appellant sent his wife to her parents’ house for

delivery where she gave birth to their second

child, a son named ‘Keerthan’. In the meantime,

the appellant was transferred to Mysore, therefore,

he shifted with his family (wife Padma and two

sons) to a place called Kurubarahalli and started

living there in house bearing No. 1326/A I St.

Cross.

(b)On 11.8.2004, around 10.30-11.00 p.m., the

appellant got a message that his old father, who

was living at Mandya, was seriously ill. The

appellant asked Padma to accompany him to leave

for Mandya immediately to see his father's

condition. However, Padma did not agree to leave

immediately but said that they can go the next

day. This issue led to heated exchange between

them and eventually resulted in appellant loosing

his mental balance to the extent that he first

alleged to have stabbed Padma with knife and

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Page 5 then poured Kerosene and set her on fire. The

appellant then took his two minor sons and locked

the house by leaving Padma in the house in

injured condition and left for Mandya to see his

ailing father. He gave Rs.20/- and Rs.10/- to his

sons and told them not to disclose the incident to

anyone, which they had noticed. After two days,

the appellant with his sons returned from Mandya

and, in an effort to make everyone believe that

Padma was alone in the house, called the

neighbours to open the door. The door lock was

then opened with the help of skilled labour. The

neighbours, Jvaramma and others, who lived near

the house, entered the house with the appellant

and found the burnt dead body of Padma.

Someone informed the appellant's brother-in-law

at Bangalore, that Padma has been taken to K.R.

Hospital for treatment for the injuries sustained by

her. On receiving the information, PW-2 (Lakshmi)

- mother of Padma, rushed to Kurubarahalli along

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Page 6 with her son, Raghu, and younger brother,

Basavaraju. On reaching there, they saw the burnt

dead body of Padma lying in the room. They

made enquiry with the children, who were with the

neighbours, as to what actually happened with

their mother. Nandan – the elder son of the

appellant narrated the entire incident. This led to

lodging of the complaint (Ex-P-3) by Lakshmi -PW-

2 to Nazarbad Police Station.

(c)S.G. Vijay Kumar- P.W-5 (Police Inspector)

registered the complaint (Ex. P-3) against the

appellant for the offences punishable under

Section 302 read with Section 498-A of the IPC

and registered the FIR (Ex-P-5). He got the inquest

done of the dead body as per (Ex-P-4), recorded

the statements of the sons - Nandan and

Keerthan, the neighbours - Ashok and Javaramma

during inquest, and sent the dead body for post-

mortem. He also prepared the scene of occurrence

Panchnama as per (Ex-P-1), seized kerosene tin

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Page 7 (M.O.-1), match box (M.O.-2) and burnt piece of

nighty (M.O.-3) along with blood stained cloth.

(d)The appellant was arrested the same day and

was produced before the Court the following day,

i.e. on 14.08.2004. P.W.-5, then recorded the

statement of witnesses and on receipt of the post-

mortem report (Ex-P-6) transferred the case to

Mahila Police station for further investigation and

for submission of final report. Thereafter, Nirmala

Harish, Police Inspector (P.W.-6) registered the

case as Crime No. 75/2004 and on receipt of FSL

report (Ex-P-9) and additional report of Medical

officer (Ex-P-10) filed a charge sheet against the

appellant for offences punishable under Sections

302 and 498-A of IPC. The case was then

committed to the Additional Sessions Judge,

Mysore.

(e)The appellant was explained of the charges

against him, which he denied and claimed to

undergo a trial. The prosecution examined seven

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Page 8 witnesses (PW-1 to PW-7) and exhibited

documents (Ex-P1 to P10) and seized articles

(M.O.1 to M.O.3). The statement of the appellant

under Section 313 of the Code of Criminal

Procedure, 1973 was recorded, wherein he denied

all material incriminatory statements in the

evidence adduced by the prosecution.

(f)By judgment dated 01.02.2006, the learned

Additional Sessions Judge, Mysore held the

appellant guilty of commission of offences

punishable under Sections 302 and 498-A IPC for

committing murder of his wife- Padma and the

cruelty meted out to her and accordingly while

convicting him directed to undergo sentence

mentioned above which was to run concurrently.

(g)Aggrieved by the said judgment, the

appellant filed appeal being Criminal Appeal No.

689 of 2006 before the High Court. By impugned

judgment, the High Court concurred with the

judgment of the Additional Sessions Judge, Mysore

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Page 9 and dismissed the appellant's appeal. It is against

this concurrent conviction and sentence, the

appellant has filed this appeal by way of special

leave.

5.Learned Counsel for the appellant while

assailing the impugned judgment has urged only

one point. According to him, the appellant's case

squarely falls within Exception 4 to Section 300 of

IPC. Learned Counsel submitted that the incident

in question, which eventually led to Padma’s

death, took place due to sudden fight ensued

between the couple without any premeditation

and the act of the appellant in allegedly stabbing

and pouring kerosene on Padma was an outcome

of the heat of passion upon such sudden quarrel.

Learned counsel referred to the evidence while

supporting his submission and contended that no

evidence was adduced by the prosecution to show

that either relation between the appellant and his

wife was not cordial or/and that they were fighting

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Page 10 intermittently on issues or that some violence or

overt act was shown by the appellant towards

Padma or any threat was given by the appellant to

her or that there was any pre-determined motive

in the appellant’s mind to kill her. Learned

counsel pointed out that during the 9 years of their

marriage, the couple was blessed with two

children and the appellant never made any

demand of dowry from the deceased or her

parents. Learned counsel, therefore, contended

on the basis of the principles laid down by this

Court in several decisions cited at the bar that the

benefit of Exception 4 to Section 300 IPC can be

given to the appellant while awarding the

sentence. Finally, learned counsel urged that

since this aspect was not examined by the courts

below much less in its proper perspective and

hence this Court should examine the same and

accordingly grant its benefit by altering the

sentence.

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Page 11 6.Though learned counsel for the respondent-

State opposed the aforementioned submission of

learned counsel for the appellant and contended

that no case is made out to interfere in the

quantum of punishment much less by taking re-

course to Exception 4 to Section 300 IPC and

hence this Court should uphold the conviction

under Section 302 IPC. We, however, find

considerable force in the submissions urged by the

learned counsel for the appellant.

7.Before we turn to the facts of this case, it is

apposite to take note of the principle of law laid

down by this Court as to in which circumstances,

the accused is held entitled to claim the benefit of

Exception 4 to Section 300 IPC thereby is entitled

to seek conversion of the offence committed by

him from murder to culpable homicide not

amounting to murder. Indeed, the principle of law

on this issue remains no longer res integra and

settled by a series of decisions of this Court. What

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Page 12 has varied is its application to every case.

8.Exception 4 to Section 300 reads as under:

“300. Murder – Except in the cases hereinafter

excepted, culpable homicide is murder, if the

act by which the death is caused is done with

the intention of causing death, or –

…………………………………………………………… ..

…………………………………………………………… ..

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 partly offers the provocation or commits

the first assault.”

9.In Surinder Kumar v. Union Territory,

Chandigarh, (1989) 2 SCC 217, this Court on the

same issue held that if on a sudden quarrel a

person in the heat of the moment picks up a

weapon which is handy and causes injuries out of

which only one proves fatal, he would be entitled

to the benefit of the Exception provided he has not

acted cruelly. This Court held that the number of

wounds caused during the occurrence in such a

situation was not the decisive factor. What was

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Page 13 important was that the occurrence had taken

place on account of a sudden and unpremeditated

fight and the offender must have acted in a fit of

anger. Dealing with the provision of Exception 4

to Section 300, this Court observed:

“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)

10.In Ghapoo Yadav and Ors. v. State of M.P. ,

(2003) 3 SCC 528, this Court held that in a heat of

passion there must be no time for the passion to cool

down and that the parties had in that case before the

Court worked themselves into a fury on account of the

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Page 14 verbal altercation in the beginning. Apart from the

incident being the result of a sudden quarrel without

premeditation, the law requires that the offender should

not have taken undue advantage or acted in a cruel or

unusual manner to be able to claim the benefit of

Exception 4 to Section 300 IPC. Whether or not the

fight was sudden, was declared by the Court to be

decided in the facts and circumstances of each case.

The following passage from the decision is apposite:

“10. ………. 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 Indian Penal Code. 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,

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Page 15 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”.(Emphasis supplied)

xxx xxx xxx

“11……… After the injuries were inflicted

the injured had fallen down, but there is

no material to show that thereafter any

injury was inflicted when he was in a

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 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 a cruel or unusual manner. That being

so, Exception 4 to Section 300 IPC is clearly

applicable…….”(Emphasis supplied)

11.In Sukbhir Singh v. State of Haryana ,

(2002) 3 SCC 327, the appellant caused two Bhala

blows on the vital part of the body of the deceased

that was sufficient in the ordinary course of nature

to cause death. The High Court held that the

appellant had acted in a cruel and unusual

manner. Reversing the view taken by the High

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Page 16 Court this Court held that all fatal injuries resulting

in death cannot be termed as cruel or unusual for

the purposes of Exception 4 to Section 300 IPC. In

cases where after the injured had fallen down, the

appellant-accused did not inflict any further injury

when he was in a helpless position, it may indicate

that he had not acted in a cruel or unusual

manner. This Court observed:

“19……….All fatal injuries resulting in death

cannot be termed as cruel or unusual for the

purposes of not availing the benefit of

Exception 4 of Section 300 IPC. After the

injuries were inflicted and the injured had

fallen down, the appellant is not shown to

have inflicted any other injury upon his

person when he was in a helpless

position. It is proved that in the heat of

passion upon a sudden quarrel followed by a

fight, the accused who was armed with bhala

caused injuries at random and thus did not act

in a cruel or unusual manner.”(Emphasis

supplied)

12. In Mahesh v. State of M.P. , (1996) 10 SCC 668,

where the appellant had assaulted the deceased in a

sudden fight and after giving him one blow he had not

caused any further injury to the deceased which fact

situation was held by this Court to be sufficient to bring

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Page 17 the case under Exception 4 to Section 300 of IPC. This

Court held:

“4. …………..Thus, placed as the appellant

and the deceased were at the time of the

occurrence, it appears to us that the

appellant assaulted the deceased in that

sudden fight and after giving him one

blow took to his heels. He did not cause

any other injury to the deceased and

therefore it cannot be said that he acted

in any cruel or unusual manner.

Admittedly, he did not assault PW 2 or

PW 6 who were also present along with the

deceased and who had also requested the

appellant not to allow his cattle to graze in the

field of PW 1. This fortifies our belief that the

assault on the deceased was made during a

sudden quarrel without any premeditation. In

this fact situation, we are of the opinion that

Exception 4 to Section 300 IPC is clearly

attracted to the case of the appellant and the

offence of which the appellant can be said to

be guilty would squarely fall under Section 304

(Part I) IPC………” (Emphasis supplied)

13.The law laid down in the aforesaid cases was

considered and applied recently by this Court in

the case reported in Ankush Shivaji Gaikwad vs.

State of Maharashtra , (2013) 6 SCC 770.

In this case also, the appellant-accused while

passing on the field of the deceased on a spur of

moment indulged in heated talk with the deceased

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Page 18 which resulted in hitting a blow by the appellant-

accused to the deceased with the rod causing

death of the deceased. Justice T. S. Thakur,

speaking for the Bench, accepted the plea raised

by the appellant-accused and accordingly altered

the sentence falling under Section 304 Part II IPC

by giving him the benefit of Exception 4 of Section

300 IPC. It was held by this Court as under:

“27……… we are of the opinion that the nature

of the simple injury inflicted by the accused,

the part of the body on which it was inflicted,

the weapon used to inflict the same and the

circumstances in which the injury was inflicted

do not suggest that the appellant had the

intention to kill the deceased. All that can be

said is that the appellant had the knowledge

that the injury inflicted by him was likely to

cause the death of the deceased. The case

would, therefore, more appropriately fall under

Section 304 Part II IPC.”

14.Keeping in view the approach of this Court for

giving benefit of Exception 4 to Section 300 IPC in

cases mentioned above and applying the same to

the facts of this case, we are inclined to give

benefit of Exception 4 to Section 300 IPC to the

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Page 19 appellant by altering his sentence awarded to the

appellant punishable under Section 304 Part II IPC.

This we say so in the facts of this case for more

than one reason. Firstly, even according to the

prosecution, there was no premeditation in the

commission of crime. Secondly, there is not even a

suggestion or we may say conclusive evidence

that the appellant had any pre-determined motive

or enmity to commit the offence against the

deceased leave alone a serious offence like

murder. Thirdly, incident that occurred was due to

sudden quarrel which ensued between the

appellant-accused and the deceased-Padma on

the issue of going to village Mandya to see the

ailing appellant's father. The appellant, on

receiving this news, had become upset and,

therefore, his insistence to see his ailing father

immediately was natural and at the same time,

Padma's refusal to leave could lead to heated

exchange of words between them. True, it is that it

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Page 20 reached to its extreme inasmuch as the appellant

in heated exchange of words lost his mental

balance and poured kerosene on Padma setting

her to burn. However, the fact remains that it was

an outcome of sudden outburst and heated

exchange with no predetermined motive per se to

kill her. Fourthly, no conclusive evidence was

adduced by the prosecution to prove any kind of

constant quarrel ever ensued in the last 9 long

years between the couple and that too for a cause

known to others which could lead to killing Padma

or whether any unsuccessful attempt was ever

made by the appellant to kill her in past and

lastly, we have not been able to see from the post-

mortem report that any stab injury on Padma's

body was caused nor prosecution was able to

prove that any blood stained knife from the place

of occurrence was recovered at the instance of

the appellant or of any witness.

15. In the light of the aforementioned reasons,

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Page 21 which, in our opinion, emerge from the evidence

on record, we are of the considered view that

these reasons are sufficient to give benefit of

Exception 4 to Section 300 IPC to the appellant

and enables the Court to hold that the offence in

question was not murder but it was an offence of

culpable homicide not amounting to murder as

specified in Exception 4 to Section 300 and hence

punishable under Section 304 part II IPC

16.In the result, we allow the appeal but only to

the extent that instead of Section 302 IPC, the

appellant shall stand convicted for the offence of

culpable homicide not amounting to murder

punishable under Section 304 Part II IPC and

accordingly sentenced to undergo rigorous

imprisonment for a period of 10 years. The

conviction and sentence imposed under Section

498-A as also the fine imposed upon the appellant

and the default sentence awarded to him shall

remain unaltered which shall run concurrently.

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Page 22 17.The appeal is accordingly disposed of in

above terms in modification of the orders passed

by the courts below.

…………………………………………………… J.

[FAKKIR MOHAMED IBRAHIM KALIFULLA]

.….…...............................J.

[ABHAY MANOHAR SAPRE]

New Delhi;

November 28, 2014

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