2005 Supreme(SC) 407

2005(2) Supreme 402
Supreme Court of India
(From Punjab and Haryana High Court)
Arijit Pasayat & S.H. Kapadia, JJ.
Ravi Kumar —Appellant
versus
State of Punjab —Respondent
Criminal Appeal No. 377 of 2005
(Arising out of SLP (Crl.) No. 1888 of 2004)
Decided on 4-3-2005
Counsel for the Parties :
For the Appellant : Sakesh Kumar, Advocate (A.C.).
For the Respondent : Arun K. Sinha, Rakesh Singh and Sandeep Bhargava, Advocates.

Important point
Some delay in receipt of special report by Illaqa Magistrate would not make investigation tainted.

Headnote:(i) Indian Penal Code, 1860—Section 302—When a talk was going on to settle an earlier quarrel between appel­lant and deceased, appellant picked up Dhangu and gave two blows on head of deceased—PW 3 brother of deceased was witness to the incident—Trial Court convicted accused rejecting defence plea that there was delay in lodging FIR and submission of special report to Illaqa Magistrate and presence of PW3 was doubtful who was interested witness—High Court upheld convicted—Appeal—Incident took place at 7 a.m. and PW3 first took victim to primary health centre from where victim was referred to Government Hospital and from there to another Hospital and victim then died at 1.15 P.M. and there after PW 3 lodged the report—Sequence of events showed there was no delay in lodging FIR and plea was rightly rejected by trial Court and High Court—Doctor explained that blow given by Dhangu on hard portion of body could cause incised wound—No inconsistency between medical evidence and ocular evidence if injury which proved fatal was described as incised wound—Plea, however, that act was committed without premeditation, in a sudden fight in a heat of passion without offender having taken undue advantage, offence would fall under Section 304 Part II IPC was acceptable—Conviction converted to one under Section 304 Part II and sentence of eight years imprisonment awarded. (Paras 11, 14, 18, 21 and 22)

       (ii) Indian Penal Code, 1860—Section 300 Fourth Exception—Provision would be attracted if death was caused (a) without pre-meditation (b) in sudden fight, (c) without offender’s having taken undue advantage or acted in cruel or unusual manner (d) and that fight was with person killed—Sudden fight implied mutual provocation—Not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel.

       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. 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 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 no 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’. (Para 21)

       (iii) Criminal Procedure Code, 1973—Section 154—Evidence Act, 1872—Section 145—FIR is not a substantive piece of evidence and could be used only to corroborate the statement of maker or to contradict him—No requirement of law that minutest details were to be recorded in it.

       Held : It has been held time and again that the FIR is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 161 of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’) or to contradict him under Section 145 of that Act. It can neither be used as evidence against the maker at the trial if he himself becomes an accused nor to corroborate or contradict other witnesses. It is not the requirement of law that the minutest details be recorded in the FIR lodged immediately after the occurrence. The fact of the state of mental agony of the person making the FIR who generally is the victim himself, if not dead, or the relations or associates of the deceased victim apparently under the shock of the occurrence reported has always to be kept in mind. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed. (Para 15)