The central legal point established in the judgment is the application of Exception 4 to section 300 IPC and the conditions for the application of clause Thirdly of section 300 IPC in cases of culpable homicide.

Judgment

ARIJIT PASAYAT, J.

( 1 ) 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.

( 3 ) ACCUSATIONS which led to the trial of the accused are essentially as follows:

3. 1. 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.

3. 2. 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.

( 4 ) LEARNED counsel for the State supported the judgments of the courts below.

( 5 ) 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.

( 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 mens 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