Madan Lal vs The State, Govt. Of Nct Of Delhi
2009 Latest Caselaw 3604 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                         Reserved on: 02.09.2009
%                                                     Date of decision:07.09.2009


+                               CRL. A. No.103 of 1995


MADAN LAL                                                 ...APPELLANT
                                Through:        Ms.Seema Gulati, Advocate.


                                          Versus


THE STATE, GOVT. OF NCT OF DELHI                                ...RESPONDENT

                                Through:        Mr. Pawan Sharma, Advocate.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.      Whether the Reporters of local papers
        may be allowed to see the judgment?                     Yes

2.      To be referred to Reporter or not?                      Yes

3.      Whether the judgment should be
        reported in the Digest?                                 Yes

SANJAY KISHAN KAUL, J.

1. Briefly stated the case of the prosecution is that on

14.8.1989, the complainant Ajit Kumar was going to the bus

stop to see of his cousin Vijay Kumar (deceased) and on the

way met the appellant on Pahargang Bridge near Milk Booth

at about 9.30 p.m. The appellant on seeing them started

abusing them and asked the complainant as to why he had

stopped him from coming to his street to tease girls. The

appellant thereafter is stated to have abused him as to who

was he to object to it. The complainant told him to close the

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chapter but the appellant continued to abuse the appellant

and thereafter Vijay Kumar slapped the appellant. The

appellant took out a knife and stabbed Vijay Kumar twice

and on the complainant intervening also stabbed him. The

stab injuries of Vijay Kumar resulted in his death.

2. The appellant was charged for the offences punishable

under Sec. 302 & 307, IPC. The learned Trial Court as per

the impugned judgement dated 22.09.1994 has held the

appellant guilty of both the offences and as per order of

sentence dated 26.09.1994 sentenced the appellant to

undergo imprisonment for life for the offence under Sec.

302, IPC and five years rigorous imprisonment for the

offence under Sec. 307, IPC. Both the sentences were to run

concurrently.

3. Learned counsel for the appellant has confined his

submissions to the offence being punishable under Sec. 304

Part II, IPC and not under Sec. 302 IPC. Learned counsel for

the appellant did not seek to assail the conviction for the

offence under Sec. 307, IPC as the appellant had already

served the duration of sentence imposed upon him by the

Trial Court.

4. Learned counsel for the appellant has submitted that the

evidence on record shows that there was no enmity

between the deceased and the appellant and hence there

was no motive the appellant's part to kill him. Learned

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counsel also seeks to take benefit of Exception 4 of Section

300, IPC. The relevant portion of Sec. 300 reads as under:

"300. Murder

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

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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 offenders having taken undue advantage or acted in a cruel or unusual manner."

5. The submission of learned counsel for the appellant is that

the incident occurred without any pre-meditation and in a

sudden fight in the heat of the moment. It was also pointed

out that the appellant had got into an argument with the

complainant, with whom some confrontation had taken

place 2-4 days earlier. Learned counsel has sought to rely

on this fact to show that there was no animosity between

the deceased and the appellant. Learned counsel for the

appellant also pointed out that it was the deceased who had

first slapped the appellant.

6. Learned counsel for the appellant referred to the elucidation

in respect of the 4th exception of Sec. 300, IPC made in

Ravindra Shalik Naik & Ors. Vs. State of Maharashtra,

2009 (2) SCALE 354 in para 6 as under:-

"6. 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 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 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 acting 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 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 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 cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat, (2003) (5) Supreme 223, Parkash Chand v. State of H.P. (2004) (11) SCC 381,; Byvarapu Raju v. State of A.P. and Anr., (2007) (11) SCC 218 and Buddu Khan v. State of Uttarakhand SLP (Crl.) No. 6109/08 disposed of on 12.1.2009"

7. Learned counsel for the appellant has also referred to the

judgement in Pappu Vs. State of M.P., 2009 (4) SCALE

521 to make out a distinction between the offence of

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murder as against culpable homicide not amounting to

murder as defined under Sec. 300, IPC in the following

terms:

"7. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC 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 the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, `culpable homicide of the first degree'. This is the gravest 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.

8. The academic distinction between `murder' and `culpable homicide not amounting to murder' has always vexed the Courts. 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 minute 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. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

               Section 299                                           Section 300

               A person commits culpable              Subject to certain exceptions, culpable
               homicide if the act by which the       homicide is murder if the act by which
               death is caused is done -              the death is caused is done -




                                               INTENTION
               a) With the intention of causing       1) with the intention of causing death; or
               death; or                              2) with the intention of causing such
               b) With the intention of causing       bodily injury as the offender knows to

such bodily injuries as is likely to be likely to cause the death of the cause death; or person to whom the harm is caused; or

3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

KNOWLEDGE ****

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c) With the knowledge that the 4) with the knowledge that the act is so act is likely to cause death imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death of such injury as is mentioned above.

8. In the above referred case, the exchange of hot words

between the accused and the deceased resulted in a shot

being fired resulting in an injury on the chest of the

deceased which was held to be a fit case for conviction

under Sec. 304 Part II, IPC with a custodial sentence of eight

years.

9. The legal principles enunciated aforesaid, in our considered

view, would squarely apply to the facts of the present case

in which a sudden fight has occurred and both sides were to

be blamed as it was the deceased who had given the first

slap. There was no previous rivalry or enmity between the

deceased and the appellant. The deceased was present with

his cousin who got into an altercation with the appellant.

There was no pre-meditated act. The slap by the deceased

aggravated the situation, which resulted in the appellant

taking out a knife and stabbing the deceased and the

complainant. In our considered view the case squarely falls

under the 4th Exception to Sec. 300, IPC and thus the

appellant is liable to be convicted under Sec. 304 Part II,

IPC. We, therefore, modify the impugned order on sentence

and sentence the appellant to undergo RI for a period of ten

(10) years and also to pay a fine of Rs.2,000.00; and in

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default to pay fine, the appellant will have to undergo

further RI of two (2) months.

10. The appeal is allowed to the aforesaid extent. The

appellant is enlarged on bail. The bail bond and sureties of

the appellant stand discharged as he has already undergone

the period of incarceration as per the nominal roll.

SANJAY KISHAN KAUL, J.

SEPTEMBER 07, 2009                                          AJIT BHARIHOKE, J.
mk

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