IMPORTANT POINT
Deceased unarmed, appellant taking advantage thereof, no provocation; case does not fall within Exception 4, section 30 IPC.

JUDGMENT

A. K. Patnaik, J.-This is an appeal against the judgment and order dated 16.04.2007 of the Andhra Pradesh High Court in Criminal Appeal No. 1258 of 2005.

2. The facts very briefly are that on 19.04.2004 Santoshi (hereinafter referred to as ‘the informant’) lodged an FIR in Musheerabad P.S., District Hyderabad, alleging that on 18.04.2004 at about 9.30 P.M. her husband’s brother, the appellant no.1, came in an auto in a fully drunken condition, went to his house situated opposite to her house and started abusing her in filthy language and her husband, she and their children came down from their portion on the first floor and her husband warned the appellant not to abuse him, but the appellant did not listen and he asked his wife to get a knife and his wife, appellant no.2 herein, went to the kitchen and brought one knife and gave it to the appellant no.1 and the appellant no.1 took the knife and stabbed the husband of the complainant on the left side of his chest and as a result the husband of the informant fell down with bleeding injury and he was taken to the Sagarlal Hospital, where he died subsequently. The Inspector of the P.S. Musheerabad, M. Bhasker Reddy, registered a case under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short ‘the IPC’). He visited the hospital, the scene of occurrence, conducted the inquest and sent the dead body of the deceased for post mortem examination. The appellant no.1 was then arrested and at his instance the knife was recovered and after investigation, a charge- sheet was filed against both the appellants for the offence punishable under Section 302 read with Section 34, IPC. The case was registered as Sessions Case No. 562 of 2004 and after framing of charges, the appellants were tried.

3. At the trial, the informant was examined as PW-1, one of the sons of the deceased was examined as PW-2, Dr. C. Surender Reddy, who conducted the post mortem on the dead body of the deceased, was examined as PW-3 and M. Bhasker Reddy, the Inspector of Police and the Investigating Officer, was examined as PW-7. On behalf of the defence, the mother of the deceased, Laxmi Bai, was examined as DW-1. By the judgment dated 19.07.2005, the 1st Additional Metropolitan Sessions Judge held both the appellants guilty of the offence under Section 302 read with Section 34, IPC, and sentenced them to life imprisonment and to pay fine of Rs.100/- and in default to undergo Simple Imprisonment for one month.

4. The appellants then filed Criminal Appeal No. 1258 of 2005, but by the impugned judgment, the Division Bench of the High Court sustained the conviction and the sentence. Aggrieved, the appellants have filed this appeal by way of Special Leave under Article 136 of the Constitution. On 11.02.2008, this Court issued notice qua the nature of the offence only and on 18.08.2008 this Court granted leave after condoning the delay in filing the special leave petiton, but refused bail to the appellants.

5. Learned counsel for the appellants submitted that the nature of the offence committed by the appellants is not murder as defined in Section 300, IPC, but culpable homicide not amounting to murder under Section 304, IPC, for which a punishment less than life imprisonment may be imposed on the appellants. He referred to Exception 4 to Section 300, IPC, which states that 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 manner. He submitted that in the facts of the present case there was no premeditation on the part of the appellants and there was a sudden quarrel and a sudden fight and the appellant no.1 stabbed the deceased in the heat of passion and therefore Exception 4 to Section 300, IPC, was attracted. In support of his submission, he cited the decision of this Court in Naveen Chandra v. State of Uttranchal [2007(1) R