Paragraph numbers below are the court’s original numbering, recovered from the source text.
5. Two criminal appeals were filed before the High Court by the accused persons.
6. The basic stand was that the evidence of the witnesses do not inspire confidence, more particularly, when PWs 4 and 5 do not support the prosecution. The High Court found that the H case was established against the accused persons on the basis KOTIKALAPUDI SUBBA RAO v. STATE OF AP & ANR. [OR. ARIJIT PASAYAT, J.] of evidence so far as the present appellant A 1 is concerned, but found the evidence so far as the other accused persons are concerned. Accordingly, as noted above, the appeal filed by the appellant was dismissed.
7. In support of the appeal learned counsel for the appellant 8 submitted that the Trial Court and the High Court should not have relied upon the evidence of PWs 1, 2 and 3. It is also submitted that even if the prosecution version is accepted in its entirety, a case under Section 302 IPC is not made out because the occurrence took pl;;ice in course of a sudden quarrel and c Exception 4 to Section 300 is applicable. The learned counsel for the State supported the judgment of the Trial Court and the High Court.
8. So far as the evidence of PWs. 1, 2 and 3 are concerned, learned counsel for the appellant was not able to point out any D discrepancy or deficiency in their evidence to warrant rejection of their evidence. The Trial Court and the High Court have rightly relied upon their testimony.
9. The residual question is whether Section 302 IPC has application.
10. For bringing in operation of Exception 4 to Section 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 .
11. 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-corit~ol, 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. c 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 zcted 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 !PC. 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 G 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 H that the offender has not taken undue advantage or acted in KOTIKALAPUDI SUBBA RAO v STATE OF A.P. & ANR. [DR. ARIJIT PASAYAT, J] cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.
12. The aforesaid aspects have been highlighted in Sridhar Bhuyan v. State of Orissa (JT 2004 (6) SC 299), Prakash Chand v State of H.P (JT 2004 (6) SC 302), Sachchey Lal Tiwari v. State of Uttar Pradesh (JT 2004 (8) SC 534), Sandhya Jadhav v State of Maharashtra [2006(4) SCC 653] and Lachman Singh v State of Haryana [2006 (10) SCC 524].
13. When the factual position is considered in the background of the legal principles set out above, the inevitable c conclusion is that the appropriate conviction would be in terms of Section 304 Part I IPC and not Section 302 IPC. The conviction under Section 307 IPC does not suffer from any infirmity. The same is upheld. Custodial sentence of 10 years in respect of the offence punishable under Section 304 Part 1 IPC would suffice. Both the sentences shall run concurrently.
14. The appeal is allowed to the aforesaid extent. 8.8.B. Appeal partly allowed