STATE OF ORISSAversusKHAGA @ KHAGESWAR NAIK & ORS.

                     [2013) 9 S.C.R: 249


                     STATE OF ORISSA                                 A
                                v.
          KHAGA @ KHAGESWAR NAIK & ORS.
           (Criminal Appeal No. 1249 of 2013)
                      AUGUST 23, 2013
                                                                     B
[R.M. LODHA AND CHANDRAMAULI KR. PRASAD, JJ.]

    Penal Code, 1860:

     s.302134 and s.300, Exception 4 - Ingredients of -              c
Explained - Held: Evidence discloses that when the victim
abused the accused, two of them brought weapons and lathi
and attacked the victim - Thus, the accused had sufficient time
to cool down and, therefore, it cannot be said that the crime
was committed in a heat of passion - Further, deceased being         0
an old man had merely abused the accused, verbal abuses
are not fight - Therefore, this ingredient is also not satisfied -
High Court erred in holding the convicts guilty u/s.304 (Part-
//) - Judgment of High Court, in so far as it altered the
conviction of respondents from s.302134 to that of s.304134,
                                                                     E
is set aside and the conviction as recorded by trial court,
restored.

     The respondents were prosecuted for committing
offences punishable ulss.457, 354, 506, 302 and 201 read
with s.34 IPC. The prosecution case was that on                      F
11.10.1995, at about 11.00 p.m. the three accused-
respondents entered the room of the informant and
molested her. Hearing her shouts, her father, who was
sleeping in the adjacent room, reached there and abused
the accused. Thereupon, one accused went to his nearby               G
house and brought a 'budia', while the other brought a
'lathi' and both attacked the old man. His dead body was
found lying in a 'nala', the following day. The trial court
convicted the accused of the offences charged and
                            249                                      H
    250       SUPREME COURT REPORTS            [2013] 9 S.C.R.


A sentenced them, inter alia, to life imprisonment u/s.302/
  34 IPC. The High Court interfered only to the extent that
  it converted the offence punishable u/s.302 to one u/s.304
  (Part-II) and sentenced the accused to 8 years RI.

          In the instant appeal, the State challen_ged the
8
    alteration of the conviction from s.302/34 to s.304 (Part-
    11) read with s.34 IPC.

          Allowing the appeal, the Court

c        HELD: 1.1 Exception 4 to s. 300, IPC 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
0   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. [Para 8]
    [255-A-B]

E       Pappu vs. State of M.P. 2006 (3) Suppl. SCR 394 =
    (2006) 7 sec 391 - relied on.

       1.2 On the facts of the instant case, Exception 4 to s.
  300, IPC is not at all attracted. The convicts had entered
F the room of the daughter of the deceased in midnight,
  molested her and the poor father, perhaps because of his
  age, could not fight with the convicts and only abused
  them. Verbal abuses are not fight, as at least two persons
  are needed to fight. Therefore, this ingredient is not
G satisfied. [Para 10] [255-G-H; 256-A-B]
       1.3 If time is taken to cool down, then the crime
  cannot be said to have bee11 committed in a heat of
  passion. It is the specific case of the prosecution, as has
  also been accepted by the High Court, that when the
H victim abused the accused, accused 'K' being annoyed
STATE OF ORISSA v. KHAGA @ KHAGESWAR NAIK 251


brought a budia from his house and accused 'D' brought           A
a lathi and both the accused attacked the victim. 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 third
accused was convicted with the aid of s.34, IPC. All of          B
them had gone together and participated in the crime
and, thus, shared the common intention. [Paras 11 and
12] [256-B-E]

     1.4 The High Court erred in holding the convicts
guilty u/s.304 (Part-II), IPC. The judgment of the High          C
Court, in so far as it altered the conviction of the
respondents from s.302/34 to that of s.304/34, IPC is set
aside and the conviction as recorded by the trial court,
is restored. [Paras 13 and 14] [256-F-G]
                                                                 D
                     Case Law Reference:
 2006 (3) Suppl. SCR 394         relied on         Para 9
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1249 of 2013.                                                E

    From the Judgment and order dated 01.09.2009 of the
High Court of Orissa at Cuttack in Criminal Appeal No. 274 of
1997.

    Radha Shyam Jena for the Appellant.                          F

    Rachana Joshi lssar for the Respondents.

    The Judgment of the Court was delivered by

     CHANDRAMAULI KR. PRASAD, J. 1. State of Orissa,             G
aggrieved by the judgment and order dated 1st September,
2009 passed in Criminal Appeal No.274 of 1997 whereby the
Division Bench of the High Court has altered the conviction of
the respondents from Section 302/34 to Section 304 Part II of
                                                                 H
    252       SUPREME COURT REPORTS                 [2013] 9 S.C.R.


A   the Indian Penal Code (hereinafter to be referred to as 'the
    IPC'), has preferred this Special Leave Petition.

          2. Leave granted.

          3. In the present appeal, as we are concerned with the
B   nature of the offence said to have been committed by the
    respondents (hereinafter to be referred to as 'the convicts'), we
    shall refer to only those facts which are necessary for decision
    on the said issue. Occurrence in the present case had taken
    place in Raghunathpali, a hamlet within the district of Sambalpur
C   in the State of Orissa. As usual, on 11th October, 1995 Mohini
    Naik and her father, Tikeshwar Naik were sleeping at their
    home in separate rooms adjoining each other. When the entire
    village was fast asleep, the convicts came to their house at
    11.00 P.M. and knocked the door in which Mohini, the rustic
D   villager was sleeping. She was asked to open the door of her
    room. She could recognize the convict Khageswar from his
    voice and on enquiry .as to who was knocking the door,
    Khageswar disclosed his name. She opened the door and saw
    the three convicts standing at the door. Two of them i.e.
E   Khageswar and Kampa entered into her room and molested
    her. She raised alarm whereupon her father, Tikeshwar woke
    up and arrived at the spot and abused the convicts in obscene
    language. All the three convicts caught hold of her father,
    assaulted him by kicks and blows and dragged him towards
F   the orchard. He was followed by his daughter, Mohini, the
    informant of the case. She was threatened that if she will come
    out, they will kill her. Mohini saw her father being assaulted from
    a distance by Khageswar and Dusasan. While Tikeswar was
    abusing the convicts, Khageswar brought one 'budia' from his
G   house and gave blows to him. Similarly, convict Dusasan
    brought a 'lathi' from his home and assaulted her father.
    Ultimately, Mohini could see the dead body of her father lying
    in 'Nala' at about 3.00 P.M. on 12th October, 1995.

          4. Police after usual investigation submitted the charge-
H
STATE OF ORISSA v. KHAGA @ KHAGESWAR NAIKL53
       [CHANDRAMAULI KR. PRASAD, J.]
sheet and the convicts were ultimately committed to the Court    A
of Session to face the trial. The convicts were charged for
commission of the offences under Sections 457,354,506,302
and 201/34 of the IPC. They pleaded not guilty and claimed to
be tried. Their defence is false implication but no defence
witness has been examined.                                       B

      5. The trial court on appreciation of evidence came to the
conclusion that the prosecution has been able to prove its case
beyond all reasonable doubt against the convicts and
accordingly, it convicted them for offences under Sections C
457,354,506,302, 201/34 of the IPC. On appeal, the.High Court
accepted the case of the prosecution but held that the
allegations proved construed an offence under Section 304Part-
lf of the IPC. Accordingly, while maintaining the conviction of
the respondents under Sections 457,354,506 and 201 /34 of the
IPC, the High Court altered their conviction from Section 302/ ·D
34 of the IPC to that of Section 304 Part II of the IPC and
sentenced them to undergo rigorous imprisonment for a period
of eight years for offence under Section 304, Part II of the IPC.
While doing so, the High Court observed as follows:
                                                                   E
             "17. We, however, find that the prosecution has
      failed to establish that the accused persons had any prior
      motive or pre-meditation to kill deceased Tikeswar and
      admittedly, the prosecution has not been able to establish
      that there was any enmity between deceased Tikeswar or F
      his daughter Mohini (P.W.4) with the accused persons. It
      appears, the accused persons who had gone to the house
      of P.W.4 to commit sexual act, on being abused by
      Tikeswar in obscene language, got provoked and attacked
      Tikeswar in a fit of anger and on the spur of the moment, G
      without any prior planning or design. The act of the
      accused persons appears to be more by way of sudden
      retaliation in the heat of passion, on being abused by
      deceased Tikeswar in obscene language and was not pre-
      planned or intentional. Accordingly.we feel, the interest of
                                                                   H .
    254        SUPREME COURT REPORTS              [2013] 9 S.C.R.


A         justice would be best served, if the conviction of the
          accused persons under Section 302/34 IPC is modified
          and reduced to one under Section 304 Part II IPC. The
          conviction of the accused persons under Sections 457/
          354/506/201/34 IPC needs no interference."
B
         6. This is how the appellant- State of Orissa is before us
    and challenges the alteration of conviction from Section 302/
    34 to that of Section 304 Part II of the IPC.

       7. Mr. Radha Shyam Jena, learned counsel appearing on
C behalf of the appellant submits that the allegations proved
  clearly make out a case of murder punishable under Section
  302 of the IPC and the High Court erred in altering the same
  to Section 304 Part II of the IPC. Mrs. Rachana Joshi lssar,
  learned counsel appearing on behalf of the respondents
D supports the judgment of the High Court and contends that the
  offence having been committed without pre-meditation in a
  heat of passion, Exception 4 to Section 300 of the IPC is clearly
  attracted and hence the allegation proved is culpable homicide
  not amounting to murder. Accordingly, she submits that the
E order of the High Court does not call for any interference.

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

          "300. Murder.-
F
          xx   xx                    xx
          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
G         offender having taken undue advantage or acted in a cruel .
          or unusual manner.

          Explanation.- It is immaterial in such cases which party
          offers the provocation or commits the first assault."
H
STATE OF ORISSA v. KHAGA @ KHAGESWAR NAIK 255
       [CHANDRAMAULI KR. PRASAD, J.]
From a plain reading of the aforesaid exception it is evident           A
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           B
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        C
Court
.      in Pappu vs. State of M.P. (2006) 7 SCC 391 in which   ,
rt has been held as follows:

     "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            D
     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 "fighf' occurring in Exception
     4 to Section 300 IPC is defined in IPC. It takes two to            E
     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               F
     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 ..... "
                                                                        G
    10. In this background when we consider the facts of the
present case, we have no manner of doubt that Exception 4 to
Section 300 of the IPC is not at all attracted. In the case in
hand, the convicts had entered the room of the daughter of the
deceased in midnight, molested her and the poor father,                 H
                                                                     l
    256       SUPREME COURT REPORTS                  [2013] 9 S.C.R.


A   perhaps because of his age, could not do anything other than
    to abuse the convicts. He gave choicest abuses but did not fight
    with the convicts. Verbal abuses are not fight as it is well settled
    that at least two persons are needed to fight. Therefore, this
    ingredient is not satisfied.
B
       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
C Tikeswar abused them, the accused Khageswar being annoyed
  brought a budia from his house, which is nearby, and dealt
  blows to her father and 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
D that the crime was committed in a heat of passion.

       12. So far as the convict, Kampa @ Sricharan Naik is
  concerned, he is convicted with the aid of Section 34 of the IPC.
  All of them have come together and participated in the crime
E which goes to show that these convicts shared the common
  intention.

         13. In the face of what we have observed above, it is clear
    that the High Court erred in holding that the offence for which
    the convicts can be held guilty shall be Section 304 Part II of
F   the IPC.

       14. In the result, we allow this appeal, set aside that portion
  of the judgment of the High Court whereby it had altered the
  conviction of the respondents from Section 302/34 of the IPC
G to that of Section 304/34 of the IPC and restore that of the trial
  court. The respondents, if have not already undergone the
  sentence awarded by the trial court, shall forthwith be taken into
  custody to serve out the remainder of the sentence.

H R.P.                                                Appeal allowed.