KOTIKALAPUDI SUBBA RAOversusSTATE OF AP. & ANR.

                                 [2008] 7 S.C.R. 905


                          KOTIKALAPUDI SUBBA RAO                              A
                                        v.
                              STATE OF AP. & ANR.
                        (Criminal Appeal No. 819 of 2008)
                                                       •
                                    MAY 6, 2008
                                                                              B
               [DR. ARIJIT PASAYAT AND LOKESHWAR SINGH
                                PANTA, JJ.]

                Penal Code, 1860:

                 ss. 304-Part I and 307 - Appellant had borrowed some c
           money from deceased - When deceased asked Appellant to
 .
 \         repay the amount and the latter denied, deceased slapped
           him, on which Appellant allegedly threatened deceased that
           he would see his end - Next day, Appellant alongwith two other
           accused allegedly caused death of the deceased by attacking D
           him with knives and in the process grievously injured PW1
           who had intervened to rescue the deceased - Conviction of
           Appellant under ss 302 & 307 - Appellant sentenced to
           undergo RI for life for the first offence i.e. u/s.302 and RI for 5
           years for the second offence, i.e. u/s. 307 - Appeal against the
                                                                               E
-I         conviction and sentence - Held: In facts and circumstances
           of the case, appropriate conviction would be in terms of s.304
           Part I and not s.302 - Conviction and sentence under s.307
           upheld - Custodial sentence of 10 years in respect of the
           offence under s. 304 Part I - Both sentences to run concurrently.
                                                                               F
                 s. 300, Exception 4 - Applicability of - Held: For
           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 - Expression G
            undue advantage' as used in the provision means ·unfair
 •         advantage'.
1
     .J.
               Words and Phrases - "fight and "undue advantage" -
           Meaning of - In the context to s. 300, Exception 4.
                                        905                                   H
    906     SUPREME COURT REPORTS               [2008] 7 S.C.R


A      Appellant had borrowed some money from the
  deceased. When deceased asked Appellant to repay the
  amount and the latter denied, deceased slapped him, on
  which Appellant allegedly threatened the deceased that
  he would see his end. The next day, Appellant alongwith
B two other accused, A2 and A3 allegedly caused death of
  the deceased by attacking him with knives and in the
  process grievously injured PW1 who had intervened to
  rescue the deceased.
        The Trial Court found the evidence of PW1, the injured
C eye-witness, and two other witnesses, PWs2 and 3 credible
  and cogent and accordingly convicted Appellant alongwith
  A2 under s.302 !PC and A3 under s.302 r/w s.34 IPC.
  Appellant was further convicted under s.307 IPC. Appellant
  was sentenced to undergo RI for life for the first offence
D i.e. u/s.302 IPC and RI for 5 years for the second offence,
  i.e. u/s.307 IPC. High Court 5et aside the conviction of A2
  and A3 but affirmed the conviction of Appellant.
        In support of the present appeal, it was submitted
  that the evidence of PWs 1, 2 and 3 could not be relied
E upon. It was further submitted that even if the prosecution
  version was accepted in its entirety, a case under s.302
  IPC was not made out since the occurrence in question
  took place in course of a sudden quarrel and Exception 4
  to s.300, IPC was applicable.
F
        Partly allowing the appeal, the Court
       HELD:1. So far as the evidence of PWs.1, 2 and 3 are
  concerned, the appellant was not able to point out any
  discrepancy or deficiency in their evidence to warrant
G rejection of their evidence. The Trial Court and the High
  Court have rightly relied upon their testimony. £Para 8]
  [913-C, D]
       2.1. For bringin•; in operation of Exception 4 to
H Section 300 l?C, it has tc be L:3tablished that ihe act was
                KOTIKALAPUDI SUBBA RAO v. STATE OF AP. & ANR.           907
      _,
                committed without premeditation, in a sudden fight in the A
                heat of passion upon a sudden quarrel without the
                offender having taken undue advantage and not having
                acted in a cruel or unusual manner. [Para 10] [9 8-E, F]
                      2.2. The Fourth Exception of Section 300, IPC covers
                acts done in a sudden fight. The said exception deals with     B
      ""        a cas·e 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-        c
                control, in case of Exception 4, there is only that heat of
                passion which clouds men's sober reasons 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              D
                provocation. In fact Fxception 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        E
                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      F
      ~         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       G
                would not have taken the serious turn it did. There is then
l't             mutual provocation and aggravation, and it is difficult to
           ..   apportion the share of blame which attaches to each
                fighter. [Para 11] [913 - F, G, 914 - A, 8, C, D]
                                                                               H
    908      SUPREME COURT REPORTS              [2008] 7 S.C.R.
                                                                           ..
A       2.3. 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
B 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
c 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
D
  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
E advantage or acted in cruel or unusual manner. The
  expression ·undue advantage' as used in the provision
  means ·unfair advantage'. [Para 11] [914-0-4, 915-A]
         Sridhar Bhuyan v. State of Orissa JT (2004) 6 SC 299;
F   Prakash Chand v. State of H.P JT 2004 6 SC 302; Sachchey
    Lal Tiwari v. State of Uttar Pradesh JT (2004) 8 SC 534;           ~


    Sandhya Jadhav v. State of Maharashtra (2006) 4 SCC 653
    and Lachman Singh v State of Haryana (2006) 10 SCC 524
    - relied on.
G       3. When the factual position is considered in the
  background of the legal principles set out above, the                         p
  inevitable conclusion is that the appropriate conviction
                                                                  ..
  would be in terms of s.304 Part I IPC and not s.302 IPC.
  The conviction under s.307 IPC does not suffer from any
H infirmity. The same is upheld. Custodial sentence of 10
KOTIKALAPUDI SUBBA RAO v. STATE OF A.P. & ANR             909
            [DR ARIJIT PASAYAT, J.]

years in respect of the offence punishable under Section        A
304 Part I IPC would suffice. Both the sentences shall run
concurrently. [Para 13] [915-8, C, D]

    CRIMINAL APPEALLATE JURISDICTION : Criminal
Appeal No. 819 of 2008.
                                                                B
     From the final Order and Judgment dated 2.3.2006 of the
High Court of Judicture, Andhra Pradesh at Hyderabad in
Criminal Appeal No. 1118 of 2004.

     Bimal Roy Jad and Sunita Pandit for the Appellant.
                                                                c
     The Judgment of the Court was delivered by

     DR. ARIJIT PASAYAT, J. 1. Leave granted.

      2. Challenge in this appeal is to the judgment of the
Division Bench of the Andhra Pradesh High Court disposing of D
two criminal appeals i.e. Criminal Appeal Nos.1114 and 1118
of 2004. By the impugned judgment Criminal Appeal No.1114
of 2004 filed by Ganpathi Satya Prakash (A3) was allowed. But
Criminal Appeal No.1118 of 2004 filed by Kotikalapudi Suresh
(A2) was allowed while the appeal filed by the present A 1 was
dismissed. It is to be noted that the present appellant and E
Kotikalapudi Suresh (A2) were found guilty under Section 302
of the Indian Penal Code, 1860 (in short 'IPC') while Ganpathi
Satya Prakash (A3) was found guilty for offence punishable under
Section 302 read with Section 34 IPC. The present appellant
was also found guilty for offence punishable under Section 307 F
IPC. Appellant was sentenced to undergo RI for life and to pay
a fine of Rs.500/- for the first offence and RI for five years and
fine of Rs.2000/-with default stipulation for the second offence.
     3. Background facts in a nutshell are as follows:          G
      Kancherlapalli Ravi Kiran (hereinafter referred to as the
'deceased') was doing finance business. A 1 borrowed an
amount of Rs.30,000/- from the deceased and executed a
promissory note scribed by Pasupuleti Chennakesavulu (P W.8)
. On 5.5.2001 the deceased asked A 1 to repay the said amount 1-:
    910       SUPREME COURT REPORTS                  [2008] 7 S.C.R


A due to him. On denial of Al to repay the same. the deceased
  allegedly slapped l\I and thereupon, Al threatened the deceased
  that he would see his end. On the next day i.e. on 6.5.2001 at
  about 6.30 P.M. the deceased alongwith PW. 1 came to old
  Bus Stand in Papalia on Suzuki Motorcycle. Then A 1 stopped
B the motorcycle and called deceased and P.W.1. The deceased
  got down from the motorcycle and went to A 1 and thereupon
  quarrel ensued. P W.1 rushed towards A 1 and noticed Al and
  A2 armed with knives and another person was also with them.
  P. W. 1 identified the other person as A3. According to P.VV. 1. Al
c and A2 attempted to atiack the deceased with knives and
  therefore he went in rescue of him and thereupon A 1 poked him
  with a knife on the right side of abdomen, and A3 kicked him on
  his stomach and so he fell down. Later, A 1 poked the deceased
  with knife on the left side of chest and ribs and A2 poked the
  deceased on the top of right side hip. In the meanwhile, P.VV2·-
0
  Kokkirala Naga Salish reached the scene and raised cries. rfo;
  cries drew the adention of the passers by and thereby the scene
  stormed with strong gathering. The accused took to his heels
  towards Bheemavaripalem Road, P.W.2 informed the incident
  to his father over phone. P.W.7-Kancherlapal!i Kishore Kumar.
E a relative of P.W.2, reached the scene and shifted the deceased
  and P.W.1 to Government Hospital, Bapatla for treatment. The
  Doctor examined the deceased and declared him dead. P.\'V.16-
  Dr.Y.Vaijayanthi, CAS, Government Hospital, Bapatla examined
  P.W.1 medically and found a clean cut stab injury of size 3 1/4
F cm s long, 1 cm wide and 7 depth, 2.5 ems below and 8 ems
  right of umbilicus on abdomen. After giving first aid to P.W. 1,
  the doctor referred him to Government Hospital, Guntur, for
  further treatment. She issued E.x.P.12 certificate opining that
  the injuries received by P.W. 1 are grievous in nature. Ex. P 19
G is the wound certified issued by her. A requisition was sent to
  JFCM, Bapatla to record the dying declaration of P.W. 1. PW.
  12 - M.Babu Rao, JFCM, Bapatla received the requisition from
  the Government Hospital on 6.5.2001 :it about 8.50 PM to              •
  record the dying declaration of P.1/1/.1. He proceeded ~0
H Government Hospital, Bapat!a. and commenced re:,or·::!ing -:.·'
KOTIKALAPUDI SUBBA RAO v. STATE OF A.~. & ANR                 911
            [DR ARIJIT PASr'\YAT, .J.]

the dying declaration of P W .1 at 9 P.M. and concluded the          A
same at 9.20 P.M. Ex.P.13 is the dying declaration recorded by
him. P.W.14 M.Dayanandam, AS/ of Bapatla Tovm Police Station
received death intimation as well as intimation of the admission
of P. W.1 in the hospital. Ex. P.15 and P-16 are the intimations
received by him. He rushed to Government Hospital, Bapatla,          B
recorded the statement of P.W.1 and registered a case in Cr.
No.50/2001 under Sections 307 and 302 r/w 34 IPC and issued
Ex.P-17 FIR. P.W.15 received the copy of FIR and took up
investigation. He examined P.W.1 and recorded his statement
under Section 161 of the Code of Criminal Procedure, 1973 (in        r,....
short 'Cr.P.C'). He observed the scene on 3.5.2001 at about 3
A.M. and prepared Ex.P.6 scene of offence panchanama. He
examined PWs.2, 6 and 7 and one Kanchar/apal/i Naresh at
the Government Hospital, Papalia and recorded their
statements. He conducted inquest on the dead body of the             D
deceased on 7.5.2001 at 8 A.M. The opinion arrived by the
panchas, on hearing the stateme1its of the witnesses examined
during the inquest, came to be incorporated at Col. No. 15 of
the Inquest Report. Ex.P.7 is the inquest report. P.W. 17 G.
Penchalanaidu, Inspector of Police, Bapatla, took up
investigation and effected arrest of Al and A2 and recovered         E
Mos. I and 2 in pursuance of their disclosure statements. Ex.P.8
and P.9 are the admissible portions in their confessional
statements. He effected the arrest of A3 on 19.5.2001 at 10.30
A.M. at the footbridge of Railway Station, Bapatla an.d sent him
for remand. On requisition, P.W. 13 conducted test identification    F
parade on 16.6.2001. In the test identification parade P.Ws. 1
to 3 identified A 1 to A3 as the assailants of the deceased. After
completing investigation, a charge sheet came to be submitted
before the II Additional Munsif Magistrate, Bapatla. The learned
Magistrate committed the case to the Sessions Division, Guntur       G
as the offence u/s.302 and. 307 /PC are exclusively triable by
the Court of Sessions. The learned Sessions Judge made over
the same to II Additiona/Sessions Judge, Guntur for trial in
accordance with law. The learned !I Additional Sessions Judge,
Guntur. on hearing the prosecution and the accused, framed           H
    912        SUPREME COURT REPORTS                [2008] 7 S.C R.


A   the following charges:
          1)   Charge No.1: Against A 1 for the offence u/s.307 IPC;

          2)   Charge No. 2: Against A 1 and A2 for the offence
               u I s.302 IPC;
B         3)   Charge No.3: Against A3 for the offence u/s.302 r/w
               34 IPC. He read over and explained the charges to
               the accused, for which the accused pleaded not guilty
               and claimed to be tried. To bring home the guilt of
               the accused for the offences with which they stood
c              charged, the prosecution examined P.Ws.1 to 17,
               marked Exs. P.1 to P.20 and exhibited Mos. 1 to 8.
               The learned Additional Sessions Judge, on
               appreciation of the evidence brought on record and
               on hearing the prosecution and the accused, found
D              the accused guilty for the offences with which they
               stood charged and convicted them accordingly and
               sentenced them.
          4. 17 witnesses were examined to further the prosecution
    version. The accused persons pleaded innocence and false
E   implication. PW1 was the injured complainant. PW2 was also
    an eye witness who removed the deceased to the hospital along
    with others. It was also stated that PW3 is an eye witness. PWs.
    3, 4 and 5 were eye witnesses to the occurrence. The Trial Court
    placed reliance on the evidence of PWs. 1, 2 and 3 because
F   PWs. 4 and 5 resiled from their statement during investigation.
    The Trial Court found the evidence of injured eye witness and
    two other witnesses to be credible and cogent and, therefore,
    recorded conviction and sentence as aforementioned.
G        5. Two criminal appeals were filed before the High Court
    by the accused persons.
         6. The basic stand was that the evidence of the witnesses
    do not inspire confidence, more particularly, when PWs 4 and 5     •
    do not support the prosecution. The High Court found that the
H   case was established against the accused persons on the basis
      KOTIKALAPUDI SUBBA RAO v. STATE OF AP & ANR.                   913
                  [OR. ARIJIT PASAYAT, J.]

      of evidence so far as the present appellant A 1 is concerned,         A
      but found the evidence so far as the other accused persons are
      concerned. Accordingly, as noted above, the appeal filed by
      the appellant was dismissed.

            7. In support of the appeal learned counsel for the appellant
      submitted that the Trial Court and the High Court should not have
                                                                            8
      relied upon the evidence of PWs 1, 2 and 3. It is also submitted
      that even if the prosecution version is accepted in its entirety, a
      case under Section 302 IPC is not made out because the
      occurrence took pl;;ice in course of a sudden quarrel and
      Exception 4 to Section 300 is applicable. The learned counsel         c
      for the State supported the judgment of the Trial Court and the
      High Court.

            8. So far as the evidence of PWs. 1, 2 and 3 are concerned,
      learned counsel for the appellant was not able to point out any
                                                                         D
      discrepancy or deficiency in their evidence to warrant rejection
      of their evidence. The Trial Court and the High Court have rightly
      relied upon their testimony.
           9. The residual question is whether Section 302 IPC has
      application.                                                          E
           10. 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 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.          F
.
            11. 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 G
      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-corit~ol, in case of Exception 4, there is
      only that heat of passion which clouds men's sober reasons
      and urges them to deeds which they would not otherwise do.
                                                                           H
    914       SUPREME COURT REPORTS                   [2008] 7 S.C.R.


A 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
B 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.
c 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
0
  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 zcted in a cruel or
E 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 !PC. It takes two to make a fight. Heat of passion requires
F 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
G 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
H that the offender has not taken undue advantage or acted in
KOTIKALAPUDI SUBBA RAO v STATE OF A.P. & ANR.               915
            [DR. ARIJIT PASAYAT, J]

cruel or unusual manner. The expression 'undue advantage' as       A
used in the provision means 'unfair advantage'.
     12. The aforesaid aspects have been highlighted in
Sridhar Bhuyan v. State of Orissa (JT 2004 (6) SC 299),
Prakash Chand v State of H.P (JT 2004 (6) SC 302), Sachchey
Lal Tiwari v. State of Uttar Pradesh (JT 2004 (8) SC 534),         8
Sandhya Jadhav v State of Maharashtra [2006(4) SCC 653]
and Lachman Singh v State of Haryana [2006 (10) SCC 524].

      13. When the factual position is considered in the
background of the legal principles set out above, the inevitable   c
conclusion is that the appropriate conviction would be in terms
of Section 304 Part I IPC and not Section 302 IPC. The             -
conviction under Section 307 IPC does not suffer from any
infirmity. The same is upheld. Custodial sentence of 10 years in
respect of the offence punishable under Section 304 Part 1IPC
                                                                   0
would suffice. Both the sentences shall run concurrently.
     14. The appeal is allowed to the aforesaid extent.
8.8.B.                                   Appeal partly allowed