IMPORTANT POINT
Where over a verbal quarrel with his brother, accused took out a gun and fired shot at deceased from a distance of 35 feet in the house, offence would fall u/s 304 Part I IPC and not u/s 302 IPC.

Headnote:Indian Penal Code, 1860-Section 300 Exception 4-Appellant over a quarrel of his dog having entered the kitchen of his younger brother in the house, took out his gun and fired a shot at deceased from distance of about 35 feet and victim hit on his chest died on spot-Conviction by Courts below for offence u/s 302 IPC-Appeal-Contention that incident occurred during course of sudden quarrel and exception 4 to Section 300 was applicable-Factual background has to be considered taking into document nature of injuries sustained, weapon used and other relevant factors-Proper conviction of appellant would be u/s 304 Part I IPC and not u/s 302 IPC-Sentence of 10 years imprisonment awarded.
       Held : 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 I 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. (Para 7)
       Additionally the shot was fired from a distance of 35 feet. Though the distance is always not determinative about the intention or knowledge of accused, the factual background has to be considered taking into account the nature of injuries sustained, the weapon used and such other relevant factors. As illuminatingly highlighted in Virsa Singh v. State of Punjab (AIR 1958 SC 465) under clause Thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. For cases to fall within clause, Thirdly, it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. According to the rule laid down in Virsa Singh s case (supra) even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out the point. The above aspects were highlighted in Abdul Waheed Khan v. State of A.P. [(2002) 7 SCC 175, and Ruli Ram & Ors. v. State of Haryana (2002) 7 SCC 691. On that score also the proper conviction will be under Section 304 Part I IPC and not Section 302 IPC as done by the Trial Court and upheld by the High Court. (Para 8)

JUDGMENT

Arijit Pasayat, J.-Leave granted.

2. Over a petty matter the appellant is supposed to have committed fratricide. He was found guilty by the Trial Court for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the IPC ) and sentenced to undergo imprisonment for life. In appeal, conviction and sentence were upheld by the High Court of Himachal Pradesh, Shimla.

Accusations which led to the trial of the accused are essentially as follows :

3. Shri Sukh Dev alias Guddu (hereinafter referred to as the deceased ) was real younger brother of the accused. On 6.2.2000 at about 9.00 p.m. there was a quarrel between the deceased and the accused. Cause of the quarrel was that the dogs of the accused had entered the kitchen room of the deceased and when the deceased had asked the accused to keep his dogs tied in the chains, verbal altercation took place and tempers flew, the accused went to his room, took out his gun and fired a gun shot at the deceased from a distance of about 35 feet, as a result of which pellets of the gun shot had pierced into the chest of the deceased. Information was lodged with the police, investigation was undertaken and charge sheet was filed. Accused pleaded innocence and false implication. During trial, father of the deceased and accused was the star witness as he claimed to be an eye witness. He graphically described the factual scenario. Placing reliance on his evidence, the trial court found the accused guilty. Appeal filed by him was dismissed by the impugned judgment.

4. The Trial Court and the High Court did not accept the plea of the accused-appellant that the incident has been occurred during the course of a sudden quarrel, and Section 302 IPC has no application and Exception 4 to Section 300 I.P.C. is applicable. The plea was reiterated during the course of hearing of the present appeal. Additionally, it was submitted that the shot was fired from a distance of about 35 feet and it cannot be said that the intention was to cause death.

5. Learned counsel for the State supported the judgments of the Courts below.

6. 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.

7. 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 I 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 ag

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2004 Supreme(SC) 823

IMPORTANT POINTWhere over a verbal quarrel with his brother, accused took out a gun and fired shot at deceased from a distance of 35 feet in the house, offence would fall u/s 304 Part I IPC and not u/s 302 IPC.

Cases Referred (4)

IMPORTANT POINT
Where over a verbal quarrel with his brother, accused took out a gun and fired shot at deceased from a distance of 35 feet in the house, offence would fall u/s 304 Part I IPC and not u/s 302 IPC.