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Sec. 302 , 304 Part I & Sec.300 – Exception 4 – murder – heat of passion – High court reduced the sentence from life to 7 years – Apex court held that 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 the 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.” The above observations fully support the view that the present case falls under Section 302, IPC. Accordingly, we allow this appeal, set aside the judgment of the High Court and restore that of the trial Court = CRIMINAL APPEAL NO. 2051 of 2014 [Arising out of Special Leave Petition (Crl.) No.1235 of 2012] STATE OF M.P. .…APPELLANT VERSUS SHIVSHANKAR ….. RESPONDENT= 2014 – Sept. Month – http://judis.nic.in/supremecourt/filename=41925

Sec. 302 , 304 Part I & Sec.300 – Exception 4 – murder – heat of passion – High court reduced the sentence from life to 7 years – Apex court held that 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 the 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.” The above observations fully support the view that the  present  case  falls under Section 302, IPC. Accordingly, we allow this appeal, set aside the judgment of the High  Court and restore that of the trial Court =

Jabalpur  Bench  at

Gwalior in Criminal Appeal No.292 of 2005 altering  the  conviction  of  the

respondent from Section 302 of the Indian Penal Code (IPC) to 304 Part-I  of

the  IPC  reducing  the  sentence  from  life   imprisonment   to   rigorous

imprisonment for seven years while upholding the sentence to pay a  fine  of

Rs.10,000/-,   in  default   to   undergo   two   years   further   rigorous

imprisonment.=

“300. Murder.—*  *     *

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’s having taken undue advantage or acted  in

a cruel or unusual manner.

[pic]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.

9. The aforesaid view finds support from a judgment of this Court  in  Pappu

v. State of M.P.2 in which it has been held as  follows:  (SCC  pp.  394-95,

para 13)

“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  not

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.”

11. 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 the 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.”

The above observations fully support the view that the  present  case  falls

under Section 302, IPC.

Accordingly, we allow this appeal, set aside the judgment of the High  Court

and restore that of the trial Court, i.e., 5th  Additional  Sessions  Judge,

Bhind, Madhya Pradesh in Sessions Trial  No.285  of  1999.   The  respondent

stands convicted under Section  302,  IPC  and  sentenced  to  undergo  Life

Imprisonment and to pay fine imposed by the  Courts  below,  in  default  to

undergo further imprisonment as directed by the Courts below.

2014 – Sept. Month – http://judis.nic.in/supremecourt/filename=41925

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2051 of 2014
[Arising out of Special Leave Petition (Crl.) No.1235 of 2012]
STATE OF M.P. .…APPELLANT

VERSUS

SHIVSHANKAR ….. RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL, J.
1. Leave granted.
2. This appeal has been preferred against the Judgment dated
10th July, 2008 of the High Court of Madhya Pradesh, Jabalpur Bench at
Gwalior in Criminal Appeal No.292 of 2005 altering the conviction of the
respondent from Section 302 of the Indian Penal Code (IPC) to 304 Part-I of
the IPC reducing the sentence from life imprisonment to rigorous
imprisonment for seven years while upholding the sentence to pay a fine of
Rs.10,000/-, in default to undergo two years further rigorous
imprisonment.
3. The case of the prosecution is that on 2nd March, 1999 after
celebration of Holi festival, sugar cakes (Batase) were being distributed
in front of the house of the complainant by Ramlachhin Gurjar (PW 10).
Complainant Remsewak (PW 4) and his brothers Ramnaresh (PW 6), Vinod (PW 7)
and deceased Satish were standing near the temple. An altercation took
place on account of Mukesh taking some sugar cakes without the permission
of PW 10. The respondent slapped PW 4 and his brothers. This led to
further altercation between the accused and the complainant party. The
accused went inside his house, brought the licensed gun of his brother and
fired a shot hitting the deceased on the stomach. Apart from the accused,
acquitted co-accused Shrichand and Shyamsunder had Kattas and Mukesh and
Badshah were having 12 bore single barrel guns. The acquitted co-
accused also fired in the air. The deceased succumbed to his injuries.
Thereafter, Ramsewak lodged First Information Report. After investigation,
the accused were sent up for trial. The prosecution case against the
respondent was proved by three eye witnesses Ramsewak (PW 4), Ramnaresh (PW
6) and Vinod (PW 7) who were brothers of the deceased, apart from other
corroborating evidence. The respondent was convicted under Section 302,
IPC while others were acquitted.
4. The respondent preferred an appeal before the High Court, but in view
of clear evidence of firing of gun shot by him causing death of the
deceased, only challenge was to the nature of the offence. It was
submitted that quarrel took place suddenly and the accused had no intention
to cause the death of the deceased. Firing in the air by the co accused
showed that the intention was not to cause the death. The accused fired
only one shot and in the circumstances no offence under Section 302, IPC
was made out.
5. The above plea prevailed with the High Court. It was held as follows
:
“10. Considering the entire scenario of the case, it is clear that the
incident occurred suddenly and without premeditation and therefore it
cannot be gathered that the intention of the appellant was to intentionally
cause the death of the deceased and therefore, the conviction of the
appellant under Section 302 of I.P.C. is not sustainable in law. But at
the same time, it is equally important to note that the appellant brought
the licensed gun from his house and then he fired which hit over the
abdomen of the deceased resulting into his death. Thus, we are of the
considered view that looking to the facts and circumstances, this is a case
of culpable homicide not amounting to murder which is punishable under
Section 304 (part-I) of I.P.C.”

6. We have heard learned counsel for the parties.
7. Learned counsel for the State submitted that the view taken by the
High Court is patently erroneous in law as the offence under Section 302,
IPC was clearly made out. It was not a case of ‘fight’ as the deceased
side did not cause any assault nor had any weapon. There was time for the
accused to cool down. His conduct in going to his house and bringing the
gun and thereafter firing from the said gun clearly established that
neither the firing was accidental, nor unintentional nor in the heat of
sudden fight. Thus the offence was clearly a murder falling under Section
302, IPC and not falling in any of the exceptions. Reliance has been
placed on judgment of this Court in State of Orissa Vs. Khaga Alias
Khageswar Naik & Ors. [1] 8. Learned counsel for the respondent
supported the view taken by the High Court.
9. After due consideration of the rival submissions, we are of the view
that the High Court has clearly erred in holding that the offence falls
under Section 304 Part-I, IPC.
10. It is clear from the case of the prosecution mentioned above that the
accused first slapped the complainant which was followed by verbal abuses
and thereafter the accused brought the licensed gun and fired at the
deceased, who died. It was, thus, a voluntary and intentional act of the
accused which caused the death. Intention is a matter of inference and
when death is as a result of intentional firing, intention to cause death
is patent unless the case falls under any of the exceptions. We are unable
to hold that the case falls under Exception 4 of Section 300, IPC as
submitted by learned counsel for the respondent. Exception 4 is attracted
only when there is a fight or quarrel which requires mutual provocation and
blows by both sides in which the offender does not take undue advantage.
In the present case, there is no giving of any blow by the complainant
side. The complainant side did not have any weapon. The accused went to
his house and brought a gun. There is neither sudden fight nor a case
where the accused has not taken undue advantage.
In State of A.P. v. Rayavarapu Punnayya [2] , it was held :
“12. In the scheme of the Penal Code, “culpable homicide” is genus and
“murder” its specie. All “murder” is “culpable homicide” but not vice-
versa. Speaking generally, “culpable homicide” sans “special
characteristics of murder”, is “culpable homicide not amounting to murder”.
For the purpose of fixing punishment, proportionate to the gravity of this
generic offence, the Code practically recognises three degrees of culpable
homicide. The first is, what may be called, “culpable homicide of the first
degree”. This is the greatest form of culpable homicide, which is defined
in Section 300 as “murder”. The second may be termed as “culpable homicide
of the second degree”. This is punishable under the first part of Section
304. Then, there is “culpable homicide of the third degree”. This is the
lowest type of culpable homicide and the punishment provided for it is,
also, the lowest among the punishments provided for the three grades.
Culpable homicide of this degree is punishable under the second part of
Section 304.
13. The academic distinction between “murder” and “culpable homicide not
amounting to murder” has vexed the courts for more than a century. The
confusion is caused, if courts losing sight of the true scope and meaning
of the terms used by the legislature in these sections, allow themselves to
be drawn into minutae abstractions. The safest way of approach to the
interpretation and application of these provisions seems to be to keep in
focus the keywords used in the various clauses of Sections 299 and 300.”

In Bhagwan Munjaji Pawade v. State of Maharashtra [3] , this Court held as
under :

“6. …. It is true that some of[pic]the conditions for the applicability
of Exception 4 to Section 300 exist here, but not all. The quarrel had
broken out suddenly, but there was no sudden fight between the deceased and
the appellant. ‘Fight’ postulates a bilateral transaction in which blows
are exchanged. The deceased was unarmed. He did not cause any injury to the
appellant or his companions. Furthermore no less than three fatal injuries
were inflicted by the appellant with an axe, which is a formidable weapon
on the unarmed victim. Appellant, is therefore, not entitled to the benefit
of Exception 4, either.”

In In Sridhar Bhuyan v.
State of Orissa [4] , this Court held as under :

“7. For bringing in operation of Exception 4 to Section 300 IPC, it has to
be established that the act was committed without premeditation, in a
sudden [pic]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.

8. 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 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 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 a cruel or
unusual manner. The expression “undue advantage” as used in the provision
means “unfair advantage”.

Similar observations were made in State of Orissa v. Khaga alias
Khageswar Naik and Ors. (supra), which reads as under :

“8. The rival submission necessitates examination of Exception 4 to Section
300 IPC, same reads as follows:

“300. Murder.—* * *

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’s having taken undue advantage or acted in
a cruel or unusual manner.
[pic]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.

9. The aforesaid view finds support from a judgment of this Court in Pappu
v. State of M.P.2 in which it has been held as follows: (SCC pp. 394-95,
para 13)
“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 not
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.”

11. 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 the 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.”
The above observations fully support the view that the present case falls
under Section 302, IPC.
Accordingly, we allow this appeal, set aside the judgment of the High Court
and restore that of the trial Court, i.e., 5th Additional Sessions Judge,
Bhind, Madhya Pradesh in Sessions Trial No.285 of 1999. The respondent
stands convicted under Section 302, IPC and sentenced to undergo Life
Imprisonment and to pay fine imposed by the Courts below, in default to
undergo further imprisonment as directed by the Courts below.

..…………………………….J.
[ V. GOPALA GOWDA ]
….………………………………..J.
NEW DELHI [ ADARSH KUMAR GOEL ]
September 16, 2014
ITEM NO.1B-For Judgment COURT NO.14 SECTION IIA

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Crl.A. ……./2014 arising from petition(s) for Special Leave to Appeal
(Crl.) No(s). 1235/2012

STATE OF M.P. Petitioner(s)

VERSUS

SHIVSHANKAR Respondent(s)
Date : 16/09/2014 This petition was called on for Judgment today.
For Petitioner(s)
Mr. C. D. Singh,Adv.
For Respondent(s) Mr. Vipin Kumar, Adv.
Mr. Deepak Goel,Adv.
Hon’ble Mr. Justice Adarsh Kumar Goel pronounced the judgment
of the Bench comprising Hon’ble Mr. Justice V.Gopala Gowda and His
Lordship.
Delay condoned.
Leave granted.
The appeal is allowed in terms of the signed order.
(VINOD KUMAR) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Non-Reportable judgment is placed on the file)

———————–
[1] (2013) 14 SCC 649
[2] (1976) 4 SCC 382
[3] (1978) 3 SCC 330
[4] (2004) 11 SCC 395

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