LexSURESH KUMAR versus THE STATE OF HIMACHAL PRADESH
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2008] 5 S.C.R. 538 SURESH KUMAR .... A v. THE STATE OF HIMACHAL PRADESH (Criminal Appeal No. 560 of 2008) B MARCH 27, 2008 (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.) ... Penal Code, 1860: s. 304, Part I - Altercation during marriage party - c Appellant took out a knife from the pocket of his trouser and struck a blow on the stomach of PW-1 's son resulting in his death - Conviction by Courts below u/s.302 /PC - Challenge to - Held: On facts, appropriate conviction would be under s. 304 Part I with custodial sentence of 10 years - Accordingly D conviction altered. • s.300, Exception 4 - Applicability of - Discussed. ~ Words and Phrases - "sudden fight" and "undue advantage" - Meaning of - In the context of Exception 4 to E s.300, /PC. According to the prosecution, pursuant to an altercation during a marriage party, Appellant took out a knife from the pocket of his trouser and struck a blow on F the stomach of PW-1 's son resulting in his death. The Trial Court found the evidence of PWs 3 and 4 to be reliable and accordingly convicted Appellant under s.302 IPC. The ~ conviction was challenged in appeal wherein apart from the question of credibility of the prosecution version, it was also pleaded that the offence punishable under s.302 G IPC was not made out. The High Court did not accept the plea and dismissed the appeal. The conviction of Appellant was challenged before • this Court on the ground that the eyewitnesses PWs 3 + H 538 SURESH KUMAR v. THE STATE OF 539 HIMACHAL PRADESH ~- and 4 were not reliable. It was residually pleaded that A offence under s.302 IPC was not made out since the incident took place in course of a sudden quarrel and Exception 4 to s.300 IPC was applicable. Partly allowing the appeal, the _Court B J, -t HELD: 1. The evidence of PWs 3 & 4 does not suffer from any infirmity. It is cogent, credible and reliable. [Para 7] [544-F] 2.1. The Fourth Exception of s.300 IPC covers acts done in a sudden fight. For bringing in operation of c Exception 4 to s.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. The said D • 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 E is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason 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 F 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 G 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 H 540 SUPREME COURT REPORTS [2008) 5 S.C.R. A 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 B aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation t- • and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without c premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. [Paras 9, 10] [544-G, H; 545-A-G] 2.2. To bring a case within Exception 4 all the D ingredients mentioned in it must be found. The 'fight' occurring in Exception 4 to s.300 IPC is not d
Excerpt shown. Read the full judgment & AI analysis in Lexace.