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2007(4) Crimes 263 (SC)
SUPREME COURT OF INDIA
(From Kerala High Court)
Dr. Arijit pasayat & P. Sathasivam, JJ.
Thankachan & Anr. — Appellant
versus
State of Kerela — Respondent
Appeal (crl.) 1535 of 2007
(Arising out of SLP (Crl.) No. 3646 of 2006)
Decided on : 13-11-2007
For the Appellant :C.N. Sree Kumar, P.R. Nayak and Harshad V. Hame, Advocates.
For the Respondent:G. Prakash, Advocate.
IMPORTANT POINT
For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that act was committed without premeditation, in a sudden fight in heat of passion upon a sudden quarrel without offender having taken undue advantage and not having acted in a cruel or unusual manner.
Headnote:Indian Penal Code, 1860 – Section 302 r\w 34 – Prosecution of accused persons four in number for causing death of deceased by assaulting him with soda bottles, chopper, knife - Prosecution case that accused persons came in goods auto rickshaw, dragged deceased from his house to road in front of his house and started assaulting deceased when he hit on head of A2 with a soda Bottle – Conviction by Trial Court – Appeal by four accused persons – High Court while allowing appeals filed by A1 and A4, dismissed appeal filed by appellants – Appeal there against by appellants on plea that even if prosecution version was accepted in toto offence u\s 302 IPC was not made out since deceased first assaulted A1 with a broken bottle and caused several injuries and that exception IV to section 304 IPC would have been applicable to facts of case – Held for bringing in operation of Exception 4 to Section 300 IPC, it has to be established that act was committed without premeditation, in a sudden fight in heat of passion upon a sudden quarrel without offender having taken undue advantage and not having acted in a cruel or unusual manner - Help of Exception 4 can be invoked if death is caused without premeditation; in a sudden fight; without offender having taken undue advantage or acted in a cruel or unusual manner; and the fight must have been with the person killed - Considering background facts, appropriate conviction held to be under Section 304 Part I IPC and not Section 302 IPC - Conviction altered accordingly. (Paras 9 to 13)
(2006) 4 SCC 653 relied upon.
Findings of the Court :
1. Accused persons four in number were prosecuted herein in the instant case for causing death of deceased by assaulting him with soda bottles, chopper, knife. Prosecution case that accused persons came in goods auto rickshaw, dragged deceased from his house to road in front of his house and started assaulting deceased when he hit on head of A2 with a soda Bottle. Trial Court convicted accused person for said offence. On Appeal by four accused persons. High Court while allowing appeals filed by A1 and A4, dismissed appeal filed by appellants.
2. Present appeal has been filed by Appellant A2 and A3 against said order of high Court on plea that even if prosecution version was accepted in toto offence u\s 302 IPC was not made out since deceased first assaulted A1 with a broken bottle and caused several injuries and that exception IV to section 304 IPC would have been applicable to facts of case.
Findings of the Court :
The Court held that for bringing in operation of Exception 4 to Section 300 IPC, it has to be established that act was committed without premeditation, in a sudden fight in heat of passion upon a sudden quarrel without offender having taken undue advantage and not having acted in a cruel or unusual manner. Considering background facts, appropriate conviction held to be under Section 304 Part I IPC and not under section 302 IPC. Conviction altered accordingly.
Result : Appeal partly allowed.
JUDGMENT
Dr. ARIJIT PASAYAT, J.—
1. Leave granted.
2. Challenge in this appeal is to the order passed by a Division Bench of the Kerala High Court, dismissing the appeal filed by the appellants who were described as A2 and A3 indicating their position before the trial court, while allowing the appeals filed by the two other accused persons (A1 and A4).
3. The conviction of the appellants for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentence of imprisonment for life and a fine of Rs.20,000/- with default stipulation was upheld.
4. The prosecution version in a nutshell is as follows :
“On 7.2.1997 at or about 6.45 p.m. at Ayamkudy Kara in Muttuchira Village of Vaikom Taluk in Kotayam District, the 4th accused came driving his goods autorickshaw (pick-u-auto) along with A1 to A3 in the said goods carrier and pulled up in front of Marangattil House of Sathyadevan @ Sahadevan @ Sahadi (hereinafter referred to as the ‘deceased’). The deceased was the driver of a mini lorry. A2 straight away went over to the deceased who was sitting along with PW2 in the varanda of his house. A2 caught hold of the deceased by the tuck of his dhoti and dragged him on to the Ezhumanthuruthi Kapoola road in front. The deceased picked up a soda bottle from the parapet of his house. Seeing this A2 went and picked a soda bottle from the adjacent grocery shop run by Rajamma (PW 7), the wife of the deceased and came on to the road. From the southern mud road (road margin) in front of the aforesaid grocery shop, A2 struck the deceased on the head with the soda bottle. Then the deceased also hit A2 on the head with the soda bottle in his hand and inflicted an injury. Seeing this A2 sprinkled chilly powder on the eyes of the deceased. The chilly powder got into the eyes of the deceased who stood there with both hands held against his face and rubbing his eyes. A1 then exhorted his companions to cut Sahadevan to death. Thereupon A2 drew a chopper from inside his shirt and cut the deceased on his head inflicting injuries. A3 stabbed the deceased on his right arm with a knife inflicting injury. A4 then cut the deceased on the back of his head with a chopper. The deceased fell on the road and was taken by PWs.1, 2 and 8 to the Kottayam Medical College Hospital. The deceased who had become unconscious on account of the injuries sustained by him succumbed to the same at about 2.10 p.m. on 8.2.1997. Since the aforesaid acts were done by A1 to A4 in prosecution of their common intention to do so, the accused persons were charged for having committed the offence of murder punishable under Section 302 read with Section 34 IPC.
On the accused pleading not guilty to the charge framed against them by the court below for the aforementioned offence, the prosecution was permitted to adduce evidence in support of its case. The prosecution examined 16 witnesses as PWs 1 to 16 and got marked 17 documents as Exts. P1 to P17 and 8 material objects as Mos. 1 to 8. After the closure of the prosecution’s evidence the accused were questioned under Section 313(1) of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’) with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. They admitted that Exts. P16 and P17 are the wound certificates pertaining to A2 and A3 respectively. When called upon to enter on their defence, the accused examined the Secretary of the Ayamkudy Branch of KPMS as DW1.
5. Placing reliance on the evidence of PWs 2, 3, 7 and 8 the trial Court recorded conviction. As noted above, appeal was preferred before the High Court by all the four accused persons, and the appeal filed by the present appellants was dismissed while that of co-accused was allowed.
6. In support of the appeal learned counsel for the appellant submitted even if prosecution version accepted in toto offence under
