LexSTATE OF ORISSA versus KHAGA @ KHAGESWAR NAIK & ORS.
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[2013) 9 S.C.R: 249 STATE OF ORISSA v. KHAGA @ KHAGESWAR NAIK & ORS. (Criminal Appeal No. 1249 of 2013) AUGUST 23, 2013 [R.M. LODHA AND CHANDRAMAULI KR. PRASAD, JJ.] Penal Code, 1860: A B s.302134 and s.300, Exception 4 - Ingredients of - c Explained - Held: Evidence discloses that when the victim abused the accused, two of them brought weapons and lathi and attacked the victim - Thus, the accused had sufficient time to cool down and, therefore, it cannot be said that the crime was committed in a heat of passion - Further, deceased being 0 an old man had merely abused the accused, verbal abuses are not fight - Therefore, this ingredient is also not satisfied - High Court erred in holding the convicts guilty u/s.304 (Part- //) - Judgment of High Court, in so far as it altered the conviction of respondents from s.302134 to that of s.304134, is set aside and the conviction as recorded by trial court, restored. E The respondents were prosecuted for committing offences punishable ulss.457, 354, 506, 302 and 201 read with s.34 IPC. The prosecution case was that on F 11.10.1995, at about 11.00 p.m. the three accused- respondents entered the room of the informant and molested her. Hearing her shouts, her father, who was sleeping in the adjacent room, reached there and abused the accused. Thereupon, one accused went to his nearby G house and brought a 'budia', while the other brought a 'lathi' and both attacked the old man. His dead body was found lying in a 'nala', the following day. The trial court convicted the accused of the offences charged and 249 H 250 SUPREME COURT REPORTS [2013] 9 S.C.R. A sentenced them, inter alia, to life imprisonment u/s.302/ 34 IPC. The High Court interfered only to the extent that it converted the offence punishable u/s.302 to one u/s.304 (Part-II) and sentenced the accused to 8 years RI. 8 In the instant appeal, the State challen_ged the alteration of the conviction from s.302/34 to s.304 (Part- 11) read with s.34 IPC. Allowing the appeal, the Court c HELD: 1.1 Exception 4 to s. 300, IPC shall be attracted only if the death is caused (i) without premeditation, (ii) in a sudden fight and (iii) in a heat of passion upon a sudden quarrel. If all these ingredients are satisfied, the Exception will come into play only when 0 the court comes to the conclusion that the offender had not taken undue advantage or acted in a cruel or unusual manner. Above all, this section would be attracted when the fight had taken place with the person killed. [Para 8] [255-A-B] E Pappu vs. State of M.P. 2006 (3) Suppl. SCR 394 = (2006) 7 sec 391 - relied on. 1.2 On the facts of the instant case, Exception 4 to s. 300, IPC is not at all attracted. The convicts had entered F the room of the daughter of the deceased in midnight, molested her and the poor father, perhaps because of his age, could not fight with the convicts and only abused them. Verbal abuses are not fight, as at least two persons are needed to fight. Therefore, this ingredient is not G satisfied. [Para 10] [255-G-H; 256-A-B] 1.3 If time is taken to cool down, then the crime cannot be said to have bee11 committed in a heat of passion. It is the specific case of the prosecution, as has also been accepted by the High Court, that when the H victim abused the accused, accused 'K' being annoyed STATE OF ORISSA v. KHAGA @ KHAGESWAR NAIK 251 brought a budia from his house and accused 'D' brought A a lathi and both the accused attacked the victim. This clearly shows that both the convicts had sufficient time to cool down and, therefore, it cannot be said that the crime was committed in a heat of passion. The third accused was convicted with the aid of s.34, IPC. All of B them had gone together and participated in the crime and, thus, shared the common intention. [Paras 11 and 12] [256-B-E] 1.4 The High Court erred in holding the convicts guilty u/s.304 (Part-II), IPC. The judgment of the High C Court, in so far as it altered the conviction of the respondents from s.302/34 to that of s.304/34, IPC is set aside and the conviction as recorded by the trial court, is restored. [Paras 13 and 14] [256-F-G] D Case Law Reference: 2006 (3) Suppl. SCR 394 relied on Para 9 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1249 of 2013. E From the Judgment and order dated 01.09.2009 of the High Court of Orissa at Cuttack in Criminal Appeal No. 274 of 1997. Radha Shyam J
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