important point
Ingredients required to invoke the provisions of Section 300, Exception Fourth, IPC discussed.

judgment

Dr. Arijit Pasayat, J. —

1.Leave granted.

2.Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court at Indore, upholding conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentence of imprisonment for life. Four persons faced trial for committing murder of Kailash (hereinafter referred to as the ‘deceased’). Though the trial court had convicted the appellant for offence punishable under Section 302 IPC, three persons were convicted for offences punishable under Section 302 read with Section 34 IPC. By the impugned judgment, conviction of others was altered and each one of them was convicted for offences punishable under Section 326 IPC read with 34 IPC and was sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs.1,000/- with default stipulation. But the conviction of the appellant as noted above was maintained.

3.Background facts in a nutshell are as follows:

On 15/11/1998 at about 08.30 pm, in Bhagirathpura, near the house of Sheetal Deen, Complainant Ramesh and witness Lalchand were standing near the culvert, when Praveen (PW4) came shouting that brother of Ramesh namely Kamlesh was being assaulted by the appellants. These persons, therefore, rushed to the place and witnessed that appellant Shailu, Raju, and Ravi had kept Kailash in their grip, while Rakesh was assaulting him with a knife, and others were administering kicks, fits and blows. When these persons raised an alarm, the accused persons fled away. Kailash was immediately taken to M. Y. Hospital. He had number of injuries which had been dressed initially but when Doctor saw Kailash, he declared him dead. According to Ramesh Prajapat there was a quarrel between them with regard to peels of eggs and it was on that account the accused persons had assaulted his brother. Report on this incident (Ex P /18) was lodged which was recorded in Rojnamcha. On being informed by the operator from M.Y. Hospital about death of Kailash, Inayat Hussain recorded information as (Ex. P/28m) and forwarded Raifulla Khan to investigate. Raifulla Khan then recorded Dehati Naish (Ex.P/w 2) was lodged by Ramesh and after issuing Subpoena, held inquest of which he prepared report. He also forwarded the dead body under requisition Ex.P2/27 of which post-mortem report was received from Dr. Raj Kumar Singh.

On the basis of information lodged, investigation was undertaken and charge sheet was placed. The accused persons abjured guilt and pleaded false implication. The trial court and the High Court found the evidence of the witnesses to be credible and cogent and as noted above directed conviction.

4.In support of the appeal, learned counsel for the appellant submitted that the evidence does not establish guilt of the present appellant. According to him, even if prosecution version is accepted in toto, offence under Section 302 IPC is not made out. In any event an offence under Section 302 IPC is not made out. According to him the occurrence took place in the course of a sudden quarrel and therefore Exception 4 to Section 300 IPC is attracted.

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 to 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