2004 Supreme(SC) 1510

2004(8) Supreme 686
SUPREME COURT OF INDIA
(From Bombay High Court)
Arijit Pasayat & S.H. Kapadia, JJ.
Babulal Bhagwan Khandare & Anr. -Appellants
versus
State of Maharashtra -Respondent
Criminal Appeal No. 1403 of 2004
(Arising out of SLP (Crl.) No. 880/2004)
Decided on 2-12-2004
Counsel for the Parties :
For the Appellants : Sunil Kumar Jain, Advocate.
For the Respondent : Manish Pitale, S.S. Shinde, Advocate for Mukesh K. Giri, Advocate.

IMPORTANT POINT
Where the offender takes undue advantage or has acted in a cruel or unusual manner, benefit of Exception 4 of Section 300 IPC cannot be given to him.

Headnote:(i) Indian Penal Code, 1860-Section 302/34-Two appellants armed with Suri (knife) and Rapi attacked three people of prosecution party and victims died-PWs 1, 3 and 5 claimed to be witnesses of occurrence-Plea of right of private defence as well plea that Exception 4 to Section 300 IPC was attracted-Trial Court rejected defence plea, found version of eye witnesses reliable and convicted appellants under-High Court found conclusions of trial Court were in order-Appeal-Fourth Exception to Section 300 IPC covered acts done in sudden fight-Sudden fight implied mutual provocation-Offender must be shown not to have taken undue advantage or acted in cruel or unusual manner-Abdomen of two deceased were ripped open and internal organs came out-Exception four was rightly held to be inapplicable-Right of private defence was also a defensive right circumscribed by provisions of IPC-It did not extend to launch an offensive, particularly when need to defend no longer survived-No material to suggest that accused apprehended danger of any such kind much less a threat to life-Right of private defence was rightly discarded-Conviction was liable to be confirmed.

       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 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 reason 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. 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 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 . 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 circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan (AIR 1993 SC 2426) it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage. In the instant case blows on vital parts of unarmed persons were given with brutality. The abdomens of two deceased persons were ripped open and internal organs come out. In view of the aforesaid factual position, Exception 4 to Section 300 I.P.C. has been rightly held to be inapplicable. (Paras 17 to 19)

       (ii) Indian Penal Code, 1860-Section 34-Common intention-Principle of joint liability in doing of a criminal act-Such intention could be inferred from circumstances appearing from proved facts and circumstances-Prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all accused to commit offence for which they were charged.

       Held : The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. (Para 20)

       The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. (Para 23)