Gulshan Kumar @ Budha vs State

Sanjay Kishan Kaul, J.—The appeal is directed against the impugned judgment dated 10th May 1995 convicting the appellant u/s 302 IPC and the order on sentence dated 12th May 1995 sentencing the appellant to undergo imprisonment for life and to pay a fine of Rs. 5,000/-, in default to which to further undergo RI for one year.

The case of the prosecution is that the appellant worked in a factory of one Harbans Lal located at Sultan Puri. The factory was for manufacture of knives, sharpening and polishing the same. The appellant is stated to have owed a sum of Rs. 450/- to Parveen Kumar (deceased) who along with his brother Ashwani Kumar (complainant) were engaged in the supply of spare parts. On 2nd September 1990, the deceased and the complainant are stated to have gone to the appellant to demand the repayment of the amount owed, but the appellant expressed his disinclination to make the payment at that stage. The father of the deceased also reached at the site and pressed for payment and some hot words were exchanged between the parties on that account. The matter escalated to such an extent that the appellant rushed inside the factory and came back with a ''chhuri'' (kitchen knife) and stabbed the deceased on the left side of the chest, whereafter the appellant ran away despite the efforts of the complainant to apprehend him. The deceased was rushed to the DDU Hospital, where he was declared brought dead.

That ASI Tota Singh, Duty Officer, received the telephonic message about a quarrel going on near House No. 81/253, Sultan Puri at 9:30 pm from an unknown person. Message was recorded in DD No. 25A and copy of the DD report was entrusted to SI Girriraj Singh for verification. SI Girriraj Singh along with Constables Ravinder Kumar and Virender Kumar reached at spot of occurrence and came to know that the injured Parveen Kumar had been removed to DDU Hospital. He left Constable Virender Kumar at the place of occurrence and reached DDU Hospital where he found that Parveen Kumar had been declared dead. He collected the MLC of Parveen Kumar and also recorded the statement of complainant Ashwani Kumar (Ex.PW1/A), brother of the deceased and sent that statement to the Police Station along with his endorsement for the registration of formal FIR. The Investigating Officer completed the formalities of investigation and filed challan against the appellant u/s 302 IPC.

The appellant on being charged u/s 302 IPC pleaded not guilty and claimed trial.

The conviction of the appellant is based primarily on the eye witness account of occurrence given by the complainant Ashwani Kumar, PW1 and Jagdish Chander, PW5.

The appellant is present in Court and learned Counsel for the appellant, on instructions from the appellant, submits that the appellant admits his guilt of having caused the injury which resulted in the death of the deceased. The only plea sought to be advanced is that the injury was the result of a sudden altercation when the appellant rushed into the small factory where knives were manufactured, picked up a knife and stabbed the deceased. It is, thus, submitted that the present case falls within the Fourth Exception to Section 300 of the IPC and the conviction of the appellant should have been u/s 304 of the IPC and not u/s 302 of the IPC. This plea is opposed by learned APP.

We are inclined to accept the plea of the learned Counsel for the appellant. The appellant did not know that the deceased along with his brother was coming to the factory to recover the money. On their demanding money, the appellant found himself unable to repay the amount at that stage. On the father of the deceased (PW5) arriving and persisting with demand, an altercation ensued and the appellant used the ''churri'' (kitchen knife) which he fetched from the knife factory where the appellant worked. The knife is actually a kitchen knife as is apparent from the sketch thereof available in the records. From the facts, it is obvious that there was no intention on the part of the appellant to cause death of the deceased and he inflicted a single knife blow on the person of the deceased in the heat of moment, which blow, unfortunately, fell on the chest of the deceased and proved to be fatal. There is no evidence of any pre-meditation on the part of the appellant to do away with the life of the deceased. The fact that only one knife blow was inflicted also indicates that the appellant did not take any undue advantage of the situation or acted in a cruel or unusual manner. He was not even carrying the knife at the relevant time, but in the heat of moment he picked up the knife easily available in the vicinity within the factory premises.

In view of the aforesaid circumstances, we are of the considered view that the case of the appellant is not covered u/s 300 IPC, but it falls within Exception 4 to Section 300 IPC. Thus, in our considered view, the learned Trial Court has erred in convicting the appellant u/s 302 IPC instead of Section 304 Part I IPC.

We are fortified by the observations of the Hon�ble Supreme Court in Ravindra Shalik Naik and Others Vs. State of Maharashtra, , wherein in para 6, it is observed as under:

The Fourth Exception of 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 4, there is only that heat of passion which clouds men''s sober reasons 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 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 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 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 aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation 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 premeditation, (b) in a sudden fight; (c) without the offender''s having taken undue advantage or acting in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight'' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ''undue advantage'' as used in the provision means ''unfair advantage''. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat (2003) (5) Supreme 223, Prakash Chand Vs. State of H.P., Byvarapu Raju Vs. State of Andhra Pradesh and Another, and Buddu Khan v. State of Uttarakhand SLP (Crl.) No. 6109/08 disposed of on 12.1.2009.

We are of the view that the appellant ought to be convicted u/s 304 Part I of the IPC. We find that in the given facts of the case, a sentence of 10 years imprisonment would suffice while sustaining the fine imposed by the Trial Court.

The appeal is accordingly allowed to the aforesaid extent and the order on conviction and sentence stand modified to that extent.

Needless to say that the appellant is entitled to benefit u/s 428 Cr.P.C.

A copy of the order be forwarded to the Superintendent, Tihar Jail.