Important point
Absence of premeditation or even if it was case of sudden fight that would not be sufficient to bring offence within purview of Exception 4 and it is further required that offender should not have taken undue advantage or acted in a cruel or unusual manner.

Headnote:Indian Penal Code, 1860—Sections 302/34 and 307/34—Three appellants of Barat party carrying fire-arm fired at victims wherein two persons died on spot and three others were injured—Incident occurred when one of the deceased cracked a joke which irked accused—Conviction by Courts below—SLP—Leave confined to question whether conviction could be converted to one under Section 304 IPC—Absence of premeditation and that it was a case of sudden fight, that itself was not sufficient to bring offence within purview of Exception 4—Fact that appellants used fire-arms over a frivolous quarrel would show that appellants acted in a cruel manner and intention to cause death or a bodily injury sufficient in ordinary course of nature of cause death was writ large—Recovery memo showing the butt and trigger guard of gun found in broken condition would not help defence when Ballistic expert report revealed that empty cartridge found on spot had been fired from gun—No question of gun firing accidently when three persons used arms in a particular direction—No ground to interfere—However facts and circumstances of the case prima facie justified remission of sentence to some extent.
Held : Though there was absence of premeditation and it was a case of sudden fight, that is not sufficient to bring the offence committed by the accused within the purview of Exception 4. The further requirement of Exception 4 that the offender should not have taken undue advantage or acted in a cruel or unusual manner should be satisfied. The very fact that the accused-appellants used the fire arms in the course of a frivolous quarrel triggered off by the sarcastic remarks of Ravindra Singh would demonstrate beyond doubt that the appellants acted in a cruel manner and it would further demonstrate the intention to cause death or at any rate, to cause a bodily injury of the nature mentioned in clause thirdly of Section 300. Such intention is writ large on the acts done by the accused. Thus, it is a case in which Clauses I to III of Section 300 IPC are attracted and, as already observed, Exception 4 would not come to the rescue of the appellants for the reason that they have acted in a cruel and unusual manner by shooting at unarmed victims who merely indulged in a verbal duel with them. The fact that the other two accused who were said to have exhorted the three appellants to attack the members of the other party were acquitted has no material bearing on the question whether the appellants could be given the benefit of Exception 4. Thus, the argument in regard to the nature of offence cannot be sustained. On the facts of this case, it is only Section 302 IPC that is attracted. (Para 7)

Order

The facts of this case reveal that an auspicious occasion of marriage had turned out to be a funeral ceremony, following a quarrel that ensued between the invitees on a flimsy ground. The three appellants herein along with two others, who have been acquitted by the High Court, were charged for murdering two persons, namely, Ravindra Singh and Mahendra Singh in the night of 20th February, 1977 in the village Tikari, Aligarh District. On trial, the appellants were convicted under Section 302 read with 34 IPC and Section 307 read with 34 IPC and sentenced to life imprisonment. The other two accused were convicted under Section 302 read with 109 IPC.

2. On appeals filed by the accused before the High Court, the conviction and sentence of the appellants was upheld by the High Court. The conviction of the other two accused was set aside by the High Court giving them the benefit of doubt.

3. The prosecution case is that on 20th February, 1977 on the occasion of the marriage at the house of Sri Ram Nayi, the bridegroom party (known as ‘Baratis’) came to the village and stayed in a Chaupal (Courtyard of the house) of one Vikram Singh. There was a dance performance on that occasion. At about 8 p.m. Barati after taking their meal went inside the Chaupal to take rest. The acquitted accused, Bhikari and Nawab Singh, belonging to the Barati party remained in the Verandah of the house. The deceased Ravindra Singh remarked probably as a joke that the dancers have become tired and, therefore, Baratis could as well start dancing. Irked by this remark, some of the members of the Barati party protested and it led to heated exchange of words and mutual abuses. At that stage, the acquitted accused exhorted the appellants to attack the persons of the group who were involved in the scuffle. It appears that the three appellants of the Barati party were carrying arms which, we are told, was not unusual for the baratis to carry in those rural areas. Then, according to the prosecution case, the three appellants herein fired at Ravindra Singh and Mahendera Singh and they died at the spot. Three other persons, namely, Dwarika Prasad, Karua and Ujagar Singh also sustained injuries from the shots fired at them by the accused. Karua was examined as PW. 5. PW.1, Nripendra Singh, brother of the deceased, lodged the report with the police on the same night.

4. The postmortem report reveals that two fire arm injuries were found on the chest and on the left side of the back of Ravindra Singh. On the body of Mahindera Singh, a fire arm wound over the left side of abdomen was found. A wound 13 cm. below left nipple and 10 cm. above umbilicus was also found. The fire arms (guns) used by the appellants were seized by PW 12, I.O. and some empty cartridges found at the seen of offence were also collected and they were sent to the Ballistic expert whose report is Ex. Ka-31. The said report was admitted on consent without formal proof. The Ballistic expert certified that the cartridge EC/1 was fired from the gun recovered from the appellant Mulayam Singh. The cartridge EC/2 was fired from the right barrel of D.B.B.L. gun recovered from the appellant Suresh Chandra and EC/4 and EC/5 from the gun seized from Bhuvnesh Pratap. The recovery memo relating to the gun and cartridges prepared by the Investigating Officer would show that the butt and trigger guard of the gun used by the appellant Suresh Chandra were in a broken condition.

5. This Court granted leave confined to the question whether the conviction could be converted into one for the offence punishable under Section 304 IPC instead of Section 302 IPC.

6. On this aspect, learned counsel for the appellant contended that the Exception 4 to Section 300 IPC is attracted. Exception 4 reads as under :

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

Click Here to Read the rest of this document

2005 Supreme(SC) 917

Important pointAbsence of premeditation or even if it was case of sudden fight that would not be sufficient to bring offence within purview of Exception 4 and it is further required that offender should not have taken undue advantage or acted in a cruel or unusual manner.

Cases Referred (2)

Important point
Absence of premeditation or even if it was case of sudden fight that would not be sufficient to bring offence within purview of Exception 4 and it is further required that offender should not have taken undue advantage or acted in a cruel or unusual manner.