State of Orissa, aggrieved by the judgment
and order dated 1st September, 2009 passed in Criminal
Appeal No.274 of 1997 whereby the Division Bench of
JUDGMENTthe High Court has altered the conviction of the
respondents from Section 302/34 to Section 304 Part
II of the Indian Penal Code (hereinafter to be
referred to as ‘the IPC’), has preferred this Special
Leave Petition.
Leave granted.
In the present appeal, as we are concerned
with the 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 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 villager was sleeping. She was
asked to open the door of her room. She could recognize the JUDGMENTconvict 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. 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 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 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.
Police after usual investigation submitted JUDGMENT the charge-sheet and the convicts were ultimately
committed to the Court 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.
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 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-II
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 302/34 of the
IPC to that of Section 304 Part II of the IPC and JUDGMENT 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:
“ 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 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, 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 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 IPCJUDGMENTneeds no interference.”
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.
Mr. Radha Shyam Jena, learned counsel
appearing on 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 Issar, learned
counsel appearing on behalf of the respondents
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 order of the High Court does not call for any
interference. JUDGMENT
The rival submission necessitates
examination of Exception 4 to Section 300 of the IPC,
same reads as follows:
“ 300. Murder.-
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 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.”
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.
The aforesaid view finds support from a judgment
of this Court in Pappu vs. State of M.P. (2006) 7 SCC
391 in which it 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 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 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…..“
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, 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.
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 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.
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 which goes to show that
these convicts shared the common intention.
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 the IPC. JUDGMENT
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 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.
[R.M.LODHA]