RAJ PAUL SINGH & ANR.versusSTATE THROUGH P.S. MUSHEERABAD, HYDERABAD

                  [2012] 8 S.C.R. 1203


              RAJ PAUL SINGH & ANR.                         A
                          v.
 STATE THROUGH P.S. MUSHEERABAD, HYDERABAD
         (Criminal Appeal No. 1339 of 2008)
                   OCTOBER 09, 2012
                                                            B
    [A.K. PATNAIK AND SWATANTER KUMAR, JJ.]

    Penal Code, 1860 - ss. 302134 and 300 Exception 4 -
Prosecution u/s. 302134 - Conviction under by courts below
- On the basis of evidence of two eye-witnesses - On appeal, C
plea that case was covered under Exception 4 to s. 300 -
Conviction uls. 302134 was correct - The case does not fall
under Exception 4 to s. 300 because the accused have taken
undue advantage and have acted in cruel or unusual manner.
                                                            D
     The appellants-accused were prosecuted for killing
a person by stabbing him. The prosecution case was that
PW1 (wife of the deceased) lodged an FIR that appellant
No. 1 (brother of the deceased) started abusing her, her
children and her husband (deceased). When the
deceased asked him to stop this, he asked appellant No. E
2 (his wife) to get a knife. Appellant No. 2 gave the knife
to him, and he stabbed the deceased. PW-1 and PW-2
(son of the deceased) were the eye-witnesses to the
incident. Trial Court convicted both the accused uls. 302
rlw s. 34 IPC. High court confirmed the conviction.         F

     In appeal to this Court, appellants contended that
there was no premeditation and the accused stabbed the
deceased in a heat of passion which arose out of sudden
quarrel and hence Exception 4 to s. 300 IPC was G
attracted.

    Dismissing the appeal, the Court

                           1203                             H
    1204     SUPREME COURT REPORTS                   [2012] 8 S.C.R.


A         HELD: 1. It is clear from the language of Exception 4
    to Section. 300 IPC, that culpable homicide will n.ot
    amoun.t to murder, if it is committed without premeditation.
    in. a sudden. fight in. the heat of passion. upon. a sudden.
    quarrel provided the offender has n.ot taken. un.due
B   advantage or acted in. a cruel or unusual man.n.er. In. a
    case where a man. stabs an.other person., un.less it is
    established that there was some threat from that person.
    to the offender, the court can.not possibly hold that the
    offender by stabbing that person. has n.ot taken. an.y
    un.due advantage or has n.ot acted in. a cruel or unusual
c   man.n.er. [Para 6] (1207-G; 1208-E]

          2. In. the in.stan.t case, the conviction. of the appellants
    for the offence un.der Section. 302 r/w. Section. 34 IPC, is
    based on. the evidence of PW-1 an.d PW-2, the two eye-
0   witnesses. It is clear from the evidence of the two eye-
    witnesses that the deceased was un.armed an.d there was
    absolutely n.o physical threat from the deceased to the
    appellants an.d appellant No.1 after bein.g provided with
    a kn.ife by appellant No.2, stabbed the deceased on. the
E   left side of the chest on. the instigation. of appellant No.2
    an.d because of these in.juries the deceased died. This
    was, thus, a case where the appellants have taken. un.due
    advantage an.d have acted in. a cruel or unusual man.n.er
    an.d the case does n.ot fall within. Exception 4 to Section.
F   300 IPC. The trial court an.d the High Court have rightly
    held the appellants guilty of the offence of murder u/s. 302
    r/w. Section. 34 IPC. [Paras 7, 8 an.d 9] (1208-F; 1210-B-C-
    F]

         Narayanan Nair Raghavan Nair v. The State of
G   Travancore - Cochin AIR 1956 SC 99; Kikar Singh v. State
    of Rajasthan AIR 1993 SC 2426:1993 (3) SCR 696; Naveen
    Chandra v. State of Uttranchal 2006 (9) Suppl. SCR 668 -
    relied on..

H
 RAJ PAUL SINGH & ANR. v. STATE THROUGH P.S. 1205
         MUSHEERABAD, HYDERABAD
                     Case Law Reference:                            A
    2006 (9) Suppl.SCR 668 Relied on.                  Para 5

    AIR 1956 SC 99               Relied on.            Para 6
    1993 (3) SCR 696             Relied on.            Para 6
                                                                    B
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1339 of 2008.

    From the Judgment & Order dated 26.4.2007 of the High
Court of Judicature of Andhra Pradesh at Hyderabad in
Criminal Appeal No. 1258 of 2006.
                                                                    c
    Kuldip Singh, Mohit Mudgil for the Appellants.

    D. Mahesh Babu, Mayur R. Shah, Bala Shivdu for the
Respondent.                                                         D

    The Judgment of the Court was delivered by

    A.K. PATNAIK, J. 1. This is an appeal against the
judgment and order dated 16.04.2007 of the Andhra Pradesh
High Court in Criminal Appeal No. 1258 of 2005.                     E

     2. The facts very briefly are that on 19.04.2004 Santoshi
(hereinafter referred to as 'the informant') lodged an FIR in
Musheerabad P.S., District Hyderabad, alleging that on
18.04.2004 at about 9.30 P.M. her husband's brother, the            F
appellant no.1, came in an auto in a fully drunken condition,
went to his house situated opposite to her house and started
abusing her in filthy language and her husband, she and their
children came down from their portion on the first floor and her
husband warned the appellant not to abuse him, but the              G
appellant did not listen and he asked his wife to get a knife and
his wife, appellant no.2 herein, went to the kitchen and brought
one knife and gave it to the appellant no.1 and the appellant
no.1 took the knife and stabbed the husband of the complainant
on the left side of his chest and as a result the husband of the
                                                                    H
    1206     SUPREME COURT REPORTS                  [2012] 8 S.C.R.


A    informant fell down with bleeding injury and he was taken to the
     Sagarlal Hospital, where he died subsequently. The Inspector
    of the P.S. Musheerabad, M. Bhasker Reddy, registered a
    case under Section 302 read with Section 34 of the Indian
    Penal Code, 1860 (for short 'the IPC'). He visited the hospital,
B   the scene of occurrence, conducted the inquest and sent the
    dead body of the deceased for post mortem examination. The
    appellant no.1 was then arrested and at his instance the knife
    was recovered and after investigation, a charge-sheet was filed
    against both the appellants for the offence punishable under
C   Section 302 read with Section 34, IPC. The case was
    registered as Sessions Case No. 562 of 2004 and after
    framing of charges, the appellants were tried.

       3. At the trial, the informant was examined as PW-1, one
  of the sons of the deceased was examined as PW-2, Dr. C.
D Surender Reddy, who conducted the post mortem on the dead
  body of the deceased, was examined as PW-3 and M.
  Bhasker Reddy, the Inspector of Police and the Investigating
  Officer, was examined as PW-7. On behalf of the defence, the
  mother of the deceased, Laxmi Bai, was examined as DW-1.
E By the judgment dated 19.07.2005, the 1st Additional
  Metropolitan Sessions Judge held both the appellants guilty of
  the offence under Section 302 read with Section 34, IPC, and
  sentenced them to life imprisonment and to pay fine of Rs.100/
  - and in default to undergo Simple Imprisonment for one month.
F
       4. The appellants then filed Criminal Appeal No. 1258 of
  2005, but by the impugned judgment, the Division Bench of the
  High Court sustained the conviction and the sentence.
  Aggrieved, the appellants have filed this appeal by way of
G Special Leave under Article 136 of the Constitution. On
  11.02.2008, this Court issued notice qua the nature of the
  offence only and on 18.08.2008 this Court granted leave after
  condoning the delay in filing the special leave petiton, but
  refused bail to the appellants.

H       5. Learned counsel for the appellants submitted that the
 RAJ PAUL SINGH & ANR. \I. STATE THROUGH P.S. 1207
 MUSHEERABAD, HYDERABAD [A.K. PATNAIK, J.]

nature of the offence committed by the appellants is not murder A
as defined in Section 300, IPC, but culpable homicide not
amounting to murder under Section 304, IPC, for which a
punishment less than life imprisonment may be imposed on the
appellants. He referred to Exception 4 to Section 300, IPC,
which states that culpable homicide is not murder if it is B
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. He submitted that in the facts of the present case there
was no premeditation on the part of the appellants and there c
was a sudden quarrel and a sudden fight and the appellant no.1
stabbed the deceased in the heat of passion and therefore
Exception 4 to Section 300, IPC, was attracted. In support of
his submission, he cited the decision of this Court in Naveen
Chandra v. State of Uttrancha/ [2007(1) RCR (Criminal) 689]. D
Learned counsel for the respondent, on the other hand,
submitted that this is not a case which would at all fall under
Exception 4 to Section 300, IPC. and that both the trial court
and the High Court have rightly held that the appellants were
guilty of the offence of murder under Section 302 read with
 Section 34, IPC.                                                E

     6. Exception 4 to Section 300, IPC, is quoted hereinbelow:

     "Culpable homicide is not murder if it is committed without
     premeditation in a sudden fight in the heat of passion upon    F
     a sudden quarrel and without the offender having taken
     undue advantage or acted in a cruel or unusual manner."

It will be clear from the language of Exception 4 to Section 300,
IPC, quoted above that culpable homicide will not ;:imount to
murder if it is committed without premeditation in a sudden fight   G
in the heat of passion upon a sudden quarrel provided the
offender has not taken undue advantage or acted in a cruel or
unusual manner. In Narayanan Nair Raghavan Nair v. The
 State of Travancore - Cochin (AIR 1956 SC 99), a three-Judge
 Bench of this Court speaking through Bose, J. held:.               H
    1208     SUPREME COURT REPORTS                  [2012] 8 S.C.R.


A        "It is enough to say that the Exception requires that no
         undue advantage be taken of by the other side. It is
         impossible to say that there is no undue advantage when
         a man stabs an unarmed person who makes no
         threatening gestures and merely asks the accused's
B        opponent to stop fighting. Then also, the fight must be with
         the person who is killed."

    This view on Exception 4 lo Section 300, IPC, has also been
    taken by this Court in Kikar Singh v. State of Rajasthan (AIR
C   1993 SC 2426) wherein it has been held:

         "Where the deceased was unarmed and did not cause any
         injury to the accused even following a sudden quarrel if the
         accused has inflicted fatal blows on the deceased,
         exception 4 is not attracted and commission must be one
D        of murder punishable under S. 302."

          Thus, in a case where a man stabs another person, unless
    it is established that there was some threat from that person
    to the offender, the Court cannot possibly hold that the offender
E   by stabbing that person has not taken any undue advantage or
    has not acted in a cruel or unusual manner.

          7. In this case, the conviction of the appellants for the
    offence under Section 302 read with Section 34, IPC, is based
    on the evidence of PW-1 and PW-2, the two eye witnesses. If
F   we read their evidence, we find that PW-1 has stated:

        "Disputes arose between me and A-2 with regard to
        collection of empty wine bottles between the children of A-
        2 and collected from a Raja Deluxe theater and that A-2
G       used to abuse in filthy language. The disputes arose prior
        to 4 months of the incident and disputes were continued.
        On 18.04.2004 at about 9.30 p.m. A-1 came to house in
        drunken condition and started abusing me in filthy
        language by saying Maake Loude. On that I along with my
        husband and children came down to ground floor. My
H
RAJ PAUL SINGH & ANR. v. STATE THROUGH P.S.1209
MUSHEERABAD, HYDERABAD [A.K. PATNAIK, J.]

  deceased husband chastised A-1 by saying that he should        A
  not abuse me as I am his sister in law and he did not stop
  abusing me.

  A-1 instructed A-2 to bring a knife. On that A-2 went inside
  the house and brought a meat cutting knife and gave it to
                                                                 B
  A-1 and instigated A-1 to stab my husband. Then A-1
  stabbed my husband on the left side of chest, when A-1
  removed the knife from injury my husband fell down on the
  ground and we noticed blood was oozing from injury."

  Similarly, PW-2 has deposed:                                   c
  "The disputes arose between family of accused and our
  family with regard to collection of empty wine bottles from
  the wine shop situated by the side of Rolex Cafe,
  Musheerabad. The disputes were going on for the last four      D
  months prior to the date of incident. While I was about to
  leave the house of PW-1 after taking meals, at 9.30 p.m.
  A-1 came to house in drunken condition and started
  abusing PW-1. He abused PW-1 by saying "Maake
  Loude". On hearing the abusive words, I along with my
                                                                 E
  father, PW-1 and others came to ground floor.

  My father questioned A-1 as to why he was abusing PW-
  1. A-1 replied that he will abuse PW-1 like that only. My
  father told A-1 not to abuse PW-1 as she is his sister-in-
  law. On that A-1 instructed A-2 to bring a knife from his      F
  portion of house. A-2 went inside the portion and brought
  a knife and gave it to A-1. Then A-1 stabbed my father on
  the left side of chest on the instigation of A-2. It was a
  mutton cutting knife. After stabbing accused removed the
  knife and went away. My father received bleeding injury and    G
  he fell down on the floor. After the incident both the
  accused went inside their portion and some time
  thereafter they escaped from the house. I lifted my father
  to Sag aria I Hospital 10 minutes after his admission,
  doctors informed me about the death of my father. I came       H
    1210     SUPREME COURT REPORTS                [2012) 8 S.C.R.


A       back to the house of PW-1 and informed her about the
        death of my father on that she became unconscious and
        fell down".

        8. It will be clear from the evidence of the two eye
B witnesses quoted above that the deceased was unarmed and
  there was absolutely no physical threat from the deceased to
  the appellants and the appellant no 1 after being provided with
  a knife by the appellant no.2 stabbed the deceased on the left
  side of the chest on the instigation of the appellant no.2 and
  because of these injuries the deceased died. This was, thus,
C a case where the appellants have taken undue advantage and
  have acted in a cruel or unusual manner and the case did not
  fall within Exception 4 to Section 300, IPC. In Naveen Chandra
  v. State of Uttranchal (supra) cited on behalf of the appellants,
  this Court has clearly held:
D
        "Where the offender takes undue advantage or has acted
        in a cruel or unusual manner, the benefit of Exception 4
        cannot be given to him. If the weapon used or the manner
        of attack by the assailant is out of all proportion, that
E       circumstance must be taken into consideration to decide
        whether undue advantage has been taken"

      9. In our considered opinion, therefore, the case of the
  appellants does not fall within Exception 4 to Section 300, IPC,
  and the trial court and the High Court have rightly held the
F appellants guilty of the offence of murder under Section 302
  read with Section 34, IPC. The appeal has no merits and is
  accordingly dismissed.

    K.K.T.                                     Appeal dismissed.