Santhakumar vs State

Padmini Jesudurai, J.—The Appellant, who has been convicted by the learned XI Additional Sessions Judge, Madras in S.C. No. 98 of

1984 for an offence u/s 302 of the Indian Penal Code and sentenced to undergo imprisonment for life, has filed the present appeal, challenging his

conviction and sentence.

The gravamen of the charge against the Appellant was that on 8.8.1984 in Door No. 29, Duraisamy Gramani St, Kodambakkam, Madras, at

about 10.50 a.m., he caused the death of his wife, Thamilarasi, aged 22, by stabbing and cutting her on her neck with M.O.1, knife as a result of

which she died soon after.

The prosecution case is briefly as follows:

The deceased was married to the Appellant about 1 1/2 years prior to the occurrence. About 10 months after the marriage, the deceased gave

birth to a male child in the hospital, through caesarean operation. The doctor advised that for three years thereafter, the deceased should not

conceive. After the delivery the deceased was in the house of her parents for some time. The Appellant came to fetch the deceased to his house

which was nearby P.W.3 the mother of the deceased told the Appellant about the medical advice. The Appellant replied that he would take care

of the deceased. The deceased then left her mother''s house and went to the house of the Appellant. Immediately thereafter, the deceased again

conceived and at the time of the occurrence, she was carrying five months. Physically she was weak and about 15 days prior to the occurrence,

she returned to her parents'' house, since the Appellant did not purchase any medicines for her weakness. The day after the deceased returned to

her parents'' house, the Appellant went there and wanted the deceased to return to his house. The deceased told the Appellant that her parents

would buy medicines for her and that, therefore; she would remain in her parents'' house for some time. The Appellant went off in a huff saying that

the deceased was really in illicit intimacy with some one and that was why she was unwilling to return to his house and that, one day, he would

catch her red handed.

On the day of the occurrence, at about 10.30 a.m. the Appellant went to the house of the deceased. P.W.3 went inside the kitchen to prepare

coffee for him. The deceased and the Appellant were in the front hall, talking for some time. Suddenly P.W.3 as well P.W.4 the sister of the

deceased, who were also inside the kitchen and also P.Ws.1 and 2, neighbours, heard the voice of the Appellant demanding the deceased,

whether her father or her husband was more important to her. On hearing this, P.Ws.3 and 4 went inside the middle hall, while P.Ws.1 and 2 came

in front of the house. The Appellant was seated on a rattan stool, while the deceased was seated near his feet on the ground. The Appellant, then

asked the deceased that he wanted a final answer as to whether she would come with him or not. The deceased replied that in her present state of

physical health, she could not come with him. Thereupon, the Appellant took out M.O.1, knife from his pocket and with his left hand, caught hold

the hair of the deceased, pulled her face backwards and with M.O.1 stabbed the deceased on the neck and then sawed the deceased.

P.Ws.1 to 4 raised alarm, whereupon the Appellant removed M.O.1 and ran out of the house. P.Ws.3 and 4 took the deceased who was

bleeding profusely, rendered first aid and took her in an auto to the Government Hospital at Royapettah. P.W.8, the Medical Officer, there, found

the deceased dead. Meantime, P.Ws.1 and 2 chased the Appellant while, others in the street joined the chase. The Appellant was finally caught

near the house of one Dass in Raghavan Colony. The Appellant put M.O.1 knife inside his pocket which was taken possession of P.W.1. They

brought the Appellant to the scene house and on coming to know that the deceased had been taken to the hospital, they took the Appellant to the

police station at Kodambakkam, 1 1/2 furlongs away and handed over the Appellant and M.O.1 to P.W.12 the Sub Inspector of Police there.

P.W.1 gave a statement Ex.P-1 which was recorded by P.W.12. P.W.12 registered Ex.P-1 as Crime No. 1092 of 1984 of Kodambakkam

Police Station for an offence u/s 307 of the Indian Penal Code. M.O.1 was seized under mahazar Ex.P-2 and the blood stained trouser and shirt

of the Appellant M.Os.2 and 3 respectively were seized under mahazar Ex.P-3. At 11.45 a.m., information was received from Royapettah

Hospital that the deceased was dead, whereupon the crime was brought u/s 302 of the Indian Penal Code. P.W.12 sent express F.I.R. to the

concerned authorities. P.W.13, the Inspector of Police, took up investigation.

P.W.13 reached the scene, prepared observation mahazar, seized blood stained articles, then proceeded to the hospital, held inquest and sent

the body for post-mortem.

P.W.10, the Assistant Professor of Forensic Science, Madras Medical College conducted post-mortem on the dead body of the deceased at

12.30 p.m. on 9.8.1984. He found on the body the following injuries described by him in the post mortem certificate Ex.P-9.

An oblique gaping incised would 7 1/2 x 2 1/2 cms on front of neck with clean edges. It is situated 7 cms, above the sternal notch and 5 cms

below the chin and 2 1/2 cms to the right of the midline. On dissection left sorno-mastoid muscle completely cut measuring 3 cms in length;

The muscles on the front of neck completely cut;

A gaping inside wound 3x1 cms on middle of body of thyroid cartilage.

Common cerotid found cut measuring 1/2 x 1/2 cms.

A cut in the body of 5th cervical vertebra on left side measuring 2 1/2 x 1/2 cms.

Extravasation of blood in the tissues on left side of neck.

All the injuries are antemortem. The death of the wound is 5 cms. Lungs: Pale stomach contained 25 ml of fluid. Bladder: Empty Uterus: male

foetus of about 5 months intrauterine life. All other internal organs were found pale.

According to P.W.10, the external and internal injuries could have been caused by single stab with a weapon like M.O.1 about 25 to 27 hours

prior to post-mortem. The external and the internal injuries were necessarily fatal and death was due to shock and haemorrhage as a result of the

injuries. The deceased could have survived for about 10 or 15 minutes after the receipt of the injuries.

P.W.13, continuing the investigation, examined witness, sent blood stained articles to Court for, chemical analysis and after completing

investigation laid charge sheet.

During trial on behalf of the prosecution P.Ws.1 to 13, were examined and Exs.P-1 to P-18 were marked. M.Os.1 to 18 were produced. The

Appellant when questioned denied complicity with the crime. The Appellant had no evidence to offer. The learned Sessions Judge accepted the

prosecution case and convicted and sentenced the Appellant as stated earlier which has resulted in the present appeal being filed by the aggrieved

accused.

Thiru S. Ramasamy, learned Counsel for the Appellant would initially contend that the evidence of P.Ws.1 and 2 ought not to have been

accepted, in view of certain discrepancies and that the trial Court was in error in holding that the Appellant had committed the crime. The learned

Counsel also contended that even if the Court found that the Appellant had caused the death of the deceased as put forward by the prosecution,

the offence committed by the Appellant would not fell u/s 302 of the Indian Penal Code, but would only be u/s 304, Part II.

The learned Public Prosecutor by referring to the salient features of the prosecution case, sought to sustain the conviction and sentence.

The question that arises for consideration is, whether the Appellant caused the death of the deceased and if so, what is the offence made out.

As far as the occurrence is concerned it is spoken to by P.Ws.1 to 4. The occurrence has taken place in the front hall of the house of the

deceased and P.W.1 is an immediate neighbour, He has chased the Appellant, caught hold of him and produced him at the police station and laid

the first information report. M.O.1 knife has been found to be stained with ''O'' group blood, which is the blood group of the deceased. Similarly,

M.Os.2 and 3 trousers and the shirt respectively of the Appellant, have also been found to be stained with ''O'' group blood. These have been

seized immediately under proper mahazars, which is spoken to by the concerned witnesses. The learned Counsel for the Appellant would urge that

P.W.3 had stated that when P.W.6 was sent to fetch an auto rickshaw to take the deceased to the hospital, a crowd gathered and P.Ws.1 and 2

were also in the crowd, whereas the evidence of P.Ws.1 and 2 is that by the time, they caught the Appellant and brought him to the scene house,

the injured had already been removed to the hospital. No undue importance can be given to this discrepancy in the evidence of P.Ws.1 to 3.

According to P.W.3, about 50 or 60 people had gathered there and in such a situation, it is possible that P.W.3 could be making a mistake about

seeing P.Ws.1 and 2 also in the crowd. It is the definite case of P.Ws.1 and 2 that when they reached the scene house, the deceased had already

been taken to the hospital. Nor does the fact that Ex.P-1 is not in hand writing of P.W.1, who is literate, affect the prosecution case in any manner.

The occurrence is also spoken to by P.Ws.3 and 4 who are the inmates of the house. The Appellant has been caught after a chase by the people

of the locality and the trial Court, therefore, has rightly held that Appellant caused the death of the deceased as put forward by the prosecution.

It was next contended on behalf of the Appellant that only a single stab had been given b him and the Appellant had no intention to cause that

particular injury which had eventually been caused on the deceased and as such, the act of the Appellant would not full under clause ''thirdly'' of

Section 300. While considering this contention, reference must be made to the decision of the Supreme Court in Virsa Singh Vs. The State of

Punjab, wherein after laying down the four requirements, which will have to be established before the act of the accused could be brought under

clause ''thirdly"" of Section 300 the Court went onto observe,

No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinarily course of nature and claim that they are not

guilty of murder. If they inflict injuries of that kind, they must face, the consequences and they can only escape if it can be shown, or reasonably

deduced, that the injury was accidental or otherwise unintentional.

Elucidating the above principle, the Court further observed,

The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but

whether he intended to inflict the injury in question, and once the existence of the injury is proved the intention to cause will be presumed unless the

evidence or the circumstance warrants an opposite conclusion.

In Jagrup Singh Vs. State of Haryana, the supreme court held that it is not the law that whenever a single stab or a blow is given, it should be

taken that the assailant did not intend to cause death. Whether the assailant intended to cause that particular injury, that was found on the deceased

and which according to the medical opinion is sufficient to cause death or whether the assailant intended to cause a different injury from the one

found on the deceased and due to extraneous factors, the fatal injury was caused, is a question of fact, which will have to be decided on a

cumulative consideration of the facts and circumstances of each case. When the assailant, seated on a stool, as in this case caught hold of the hair

of the victim seated on the ground, pulled the head back, so as to reach the vital area of the front of neck and stabbed her with a knife and sawed

thereafter with such force, as to cut all the muscles in that area and the thyroid cartilage, arteriesther and even cause a cut ion the cervical vertebra,

the assailant must be taken to have intended to cause the very injury that was found on the victim. There is nothing on record to indicate that the

Appellant had intended to cause a different injury from that which was found on the deceased and unintentionally, the stab happened to land on a

vital area.

The learned Counsel for the Appellant relied upon Shankar alias Kallu Vs. State of Madhya Pradesh, Kulwant Rai Vs. State of Punjab, and

AIR 1983 185 (SC) wherein on the facts and circumstances of these cases the Supreme Court had found that the assailants therein, had not

intended to cause those injuries found on the deceased and held that the offence committed by the assailants would not be u/s 302 of the Penal

Code. The facts of the present case, bear no analogy to the facts of the above case.

It follows from the foregoing analysis of the facts and circumstances, the Appellant intended to cause the very injury that was found on the

deceased, which according to medical opinion, is necessarily fatal. The act of the Appellant falls squarely u/s 300 clause ''thirdly'' of the Penal

Code.

It was finally contended on behalf of the Appellant that the Appellant would be entitled to the benefit of Exception 4 to Section 300 which is as

follows:

Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel without the

offenders having taken undue advantage or acted in a cruel or unusual manner.

A reading of the above Exception shows that the Exception can be invoked if death is caused (a) without pre-meditation (b) in a sudden

quarrel and (c) without the offender taking undue advantage or acting in a cruel or unusual manner. Unless all the above ingredients are found to

exist the benefit of the Exception cannot be claimed.

In the case before us, even if we held that this offence had been committed without any premeditation, we have yet to see whether the other

two requirements stand fulfilled. The second requirement is that there should be a sudden fight, following a sudden quarrel. The term ''fight'' has not

been defined in the Penal Code. The Ordinary meaning of the term ''fight'' would be to struggle against; to use physical force. It is something more

than a verbal quarrel. In Muniandi Servai, In-re AIR 1944 S.C. 251 a Division Bench of this Court held that exception 4 will not apply to a case

where, the fatal blow was given in the course of a wordy altercation, since there was no ''fight'' between the accused and the deceased and there

was only an exchange of abuse and hitting the deceased with a rice pounder with such force, as to cause extensive fracture of the skull, did amount

to taking undue advantage and acting in a cruel and unusual manner.

In Public Prosecutor Vs. Somasundaram and Others, another Division Bench of this Court while explaining the term ''fight'' in Exception 4

observed as follows:

It takes two to make fight. In order to constitute a fight, it is necessary that blows should be exchanged and it is not necessary that weapons should

be used.

The Supreme Court in Bhagwan Munjaji Pawade Vs. State of Maharashtra, negatived the applicability of the above exception when in the

course of heated exchange of abuses, the fatal injury was inflicted, observing.

It is true that some of the conditions for the applicability of Exception 4 to Section 300 exist here, but not all. The quarrel had broken but suddenly,

but there was no sudden fight between the deceased and the Appellant. ''Fight'' postulates a bilateral transactions in which blows are exchanged.

The deceased was unarmed, fie did not cause any injury to the Appellant or his companions.

Later in Mohammed Mytheen Shahul Hameed Vs. State of Kerala, dealing with Exception 4 and ruling out its applicability, the court

observed,

Thus, the deceased being unarmed, did not and could not cause any injury to the Appellant. There was no mutual exchange of blows between the

Appellant and the deceased. The assault on the deceased by the Appellant was deliberate and pressed with determination, when the victim was

fleeing for his life.

From the aforesaid decisions, it is clear that the term ''fight'' is used in the Exception, to convey something more than a verbal quarrel. The

wording in the Exception is

In a sudden fight upon a sudden quarrel.

This obviously would mean more than the words ""upon a sudden quarrel"" would do, if used alone. It takes two to make fight. A fight cannot be an

unilateral attack. A fight is a bilateral transaction in which blows are exchanged, the term sudden ""fight"" is used in the Exception in contra distinction

to the term sudden ""quarrel"" occurring in the very same Exception. A mere wordy altercation heated exchange of abuse, without at least a show of

force or an aggressive gesture, by both parties, cannot be termed as ''fight'' within the meaning of Exception 4. It is not necessary that any weapon

should be used in order to constitute fight. But, it is necessary that both the parties should use physical force. Else it would not be a fight.

In the instant case, even if we are to hold that there was a sudden quarrel between the Appellant and the deceased, there had never been a

sudden ''fight'' between them. The consistent evidence of all the eye witnesses is that, the deceased was seated on the ground near the feet of the

Appellant when the assault was made. There was no ''fight'' between the Appellant and the deceased, in order to attract Exception 4.

It has next to be seen whether the third requirement of the Exception, viz., whether the Appellant had not taken undue advantage or not acted

in a cruel and unusual manner exists. The expression ''undue advantage'' means ''unfair advantage''. The mere fact that the accused has caused the

death of another cannot lead necessarily to the conclusion, that the accused had acted in a cruel or unusual manner in which case, the exception

would be meaningless. Courts have indicated what would be taking undue advantage and what would amount to acting in a cruel or unusual

manner. In Narayanan Nair Raghavan Nair Vs. The State of Travancore-Cochin, the Supreme Court observed,

It is enough to say that the Exception requires that no undue advantage be taken of the other side. It is impossible to say that there is no undue

advantage, when a man stabs an unarmed person who makes no threatening gestures and merely asks the accused''s opponent to stop fighting.

In Jumman v. The State of Punjab AIR 1957 S.C. 447 the Supreme Court applied Exception 4 on the ground that both parties had arms and

there was a sudden fight between them and there was no undue advantage taken by either.

In Dharman Vs. State of Punjab, he Supreme court invoked Exception 4, as both parties were found to be armed and observed that it could

not be said that one of them had acted in a cruel or unusual manner, but further observed that, it would be otherwise, if the deceased and his party

were unarmed or armed with weapons which were not lethal or dangerous and the accused''s party used sharp weapons, in which case, the

accused must be deemed to have acted in a cruel manner.

Earlier, in Prandas Vs. The State, the Supreme court held that Exception 4 would apply since the accused had not stabbed the deceased after

the letter had fallen on the ground. This showed that he had not taken undue advantage or acted in a cruel or unusual manner.

Similarly, in Pandurang Narayan Jawalekar Vs. State of Maharashtra, he Supreme Court held that before Exception 4 could be applied, it had

to be shown that the accused had not acted in a cruel or unusual manner and had not taken any undue advantage, but that in the case before them,

the deceased was only an innocent intervener, who asked the parties not to quarrel and the accused had struck a blow on the deceased with an

iron bar with very great force and as such, Exception 4 would not apply.

The above cases would show that the concluding portion of Exception 4 has its own significance. It would require that the party assaulted,

must be on an equal footing in point or (Sic)elence, at least at the onset, particularly when the attack is with a deadly weapon. If on the other hand,

the victim is unarmed or is physically incapable of defending himself or if the victim is taken completely unawares and has been struck when he

does not even suspect a blow or the weapon or if the manner of attack is out of proportion to the offence given, the assailant cannot but be said to

have taken undue advantage of his victim. Unless this requirement is also fulfilled, Exception 4 cannot apply.

In the instant case, the deceased was unarmed. She had already delivered a child on a major operation. Contrary to medical advice she was

carrying five months, she had come to her parents'' house, solely on the ground that the Appellant did not give her the medicines, which her

physical conditions then required, and that her parents were giving her the medicines. In that stage of physical health, she being unarmed and

physically unable to defend herself, had received a stab, taken unawares and when she would have least expected one. The attack was out of

proportion to the offence, if any, given by her. Under these circumstances, the Appellant had clearly taken undue advantage and had also acted in

a cruel manner. He would not be entitled to take advantage of Exception 4 to minimise the criminology of his act. Exception 4 will not apply.

In the result, the appeal fails and it is dismissed.