HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No 547 of 1989
Vikram Nair
...Petitioners
Versus
State of Madhya Pradesh now Chhattisgarh
...Respondents
(CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL
PROCEDURE, 1973)
! Mr.Surendra Singh, Senior counsel with Mr.Neeraj Mehta &
Mr.M.K.Beag, counsel for the appellant
^ Mr.Ashish Shukla, Government Advocate with Mr.Sandeep
Yadav, Deputy Government Advocate for the
State/respondent
HONBLE MR.T.P.SHARMA,HONBLE MR.R.L.JHANWAR, JJ
Dated: 25/11/2009
: Judgment
JUDGMENT
(Passed on 25th November, 2009)
The judgment of the Court was delivered by T.P.Sharma, J.:-
1. By this appeal, the appellant has challenged the
legality and propriety of the judgment of conviction and
order of sentence dated 31.3.1989 passed by the Additional
Sessions Judge, Baikunthpur, District Surguja, in Sessions
Case No.40/88 whereby & whereunder learned Additional
Sessions Judge after holding the appellant guilty for the
commission of offence of murder punishable under Section 302
of the Indian Penal Code sentenced him to undergo
imprisonment for life.
2. Judgment & order are challenged on the ground that the
Court below has not considered the right of private defence
of the person and evidence adduced on behalf of the
prosecution and thereby committed illegality.
3. Case of the prosecution in brief is that the present
appellant is distant relative of the deceased V.S.Vijay
Kumar. The present appellant went to the shop of Tapan
Chakravarti (PW-5) on 14.9.1987 at about 4 p.m. situated at
Ghutari, Tahsil Baikunthpur. The deceased also went to the
shop of Tapan Chakravarti. Both were started quarreling and
assaulting to each other by hands. Tapan Chakravarti (PW-5)
hoisted both the persons and went to other place. After half
an hour when he came back, he came to know that the present
appellant has assaulted the deceased by scissors of his shop
and as a result of such injury, the deceased V.S.Vijay Kumar
died. He was shifted to the hospital by Ashok Singh (PW-2)
and Badru Jama Khan. He was admitted in hospital vide Indoor
Patient Case Record Ex.P/9. Dr.Vijay Shankar Sharma (PW-13)
has examined the deceased and found following injuries over
the body of the injured V.S.Vijay Kumar:
i) One punctured wound below left nipple of + ” x ,” x +”
ii) One punctured wound over 7th rib of right side of +” x ,
x 1 +”
iii) One punctured wound over middle of the chest of +” x ,”
x 1 +”
iv) Punctured wound near 3rd injury of +” x +” x +”
v) One Punctured wound over right auxilla of 2″ x +” x +”
vi) Punctured wound over left side of the neck above
clavicle bone of 1 +” x +” x +”
vii) Multiple abrasion over left side forehead
viii) Punctured wound over right parietal bone of ,” x ,”
Condition of the deceased was serious. During the course
of treatment he succumbed to the injures sustained by him
within 15 minutes. The doctor intimated the death of the
deceased vide Ex.P/14. F.I.R. was registered on the basis
of Ex.P/14 vide Ex.P/1 at about 4.10 p.m. on 14.9.1987.
The appellant went to the police station Baikunthpur and
lodged Rojnamacha Sanha vide Ex.P/8. Police officer left
for the hospital and after summoning the witnesses vide
Ex.P/4 inquest, over the body of the deceased V.S.Vijay
Kumar was prepared vide Ex.P/5. Dead body was sent for
autopsy to Primary Health Centre, Baikunthpur vide
Ex.P/10A. Autopsy was conducted by Dr.Vijay Shankar Sharma
(PW-13) vide Ex.P/10 and noticed the aforesaid injures.
The doctor has opined that the cause of death was shock.
Injuries were ante-mortem and caused by pointed and sharp
aged scissors knife. Spot map was prepared by patwari
vide Ex.P/2. The appellant was examined vide Exs.P/3 and
P/4 and found one lacerated wound over right occipital
region of 1 c.m. x 1 c.m. Spot map was prepared by the
investigating officer vide Ex.P/5. The appellant was taken
into custody. He made disclosure statement of the scissors
vide Ex.P/6 and at the instance of disclosure statement of
the appellant, scissors was recovered vide Ex.P/7.
Scissors was sent for chemical analysis to the doctor and
the doctor was opined that injury found over the body of
the deceased may be caused by the scissors vide Ex.P/11.
Sealed clothes of the deceased were recovered vide
Ex.P/12. Seized articles were sent for chemical analyses
vide Ex.P/18. Presence of blood over scissors recovered
from the accused was confirmed vide analysis report
Ex.P/19.
4. Statements of the witnesses were recorded under Section
161 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as `the Code’) and after completion of
investigation, charge sheet was filed in the Court of
Judicial Magistrate First Class, Baikunthpur who in turn
committed the case to the Court of the Sessions Judge,
Surguja from where Second Additional Sessions Judge,
Baikunthpur received the same on transfer for trial.
5. In order to prove the guilt of the appellants/accused,
the prosecution examined as many as 15 witnesses. Statement
of the accused/appellant was also recorded under Section 313
of the Code where he denied the circumstances appearing
against him and claimed innocence and false implication. He
has examined the circumstances that he along with his
deceased brother V.S.Vijay Kumar went to teashop of witness
Ramnaresh for taking tea. While they were waiting for tea at
the shop of Tapan Chakravarti (PW-5), the deceased went from
the shop and after sometime he came back and used filthy
language to him and assaulted by pelting stone over the head
and other parts of the body. The appellant fell down, the
deceased sit over his chest and tried to cause injury by
pointed part of umbrella. He cried for help. Tapan
Chakravarti (PW-5) intercepted, then the appellant went
towards cooperative stores and lodged the report.
6. After affording an opportunity of hearing to the
parties, learned Additional Sessions Judge, Baikunthpur has
convicted and sentenced the appellant as aforementioned.
7. We have heard Mr.Surendra Singh, Senior counsel with
Mr.Neeraj Mehta & Mr.M.K.Beag, counsel for the appellant &
Mr.Ashish Shukla, Government Advocate with Mr.Sandeep Yadav,
Deputy Government Advocate for the State/respondent and
perused the judgment impugned and record of the Court below.
8. Learned counsel for the appellant vehemently argued that
the present appellant was sitting in the shop of Tapan
Chakravarti where the deceased came and after abusing
assaulted him. Tapan Chakravarti intercepted the quarrel then
the deceased tried to assault the appellant by umbrella.
Tapan Chakravarti (PW-5) caught hold the deceased and advised
the appellant to flee away from the spot, but after pushing
Tapan Chakravarti, the deceased chased the appellant for
causing grievous injury/murder. Rest part of the incident has
not been seen by any of the witnesses. The deceased has
pelted stone over the head of the appellant and caused
lacerated wound of 2 c.m. x 1 c.m. over his occipital region.
He himself has lodged the report to the police. He was
examined by the doctor vide Ex.P/3. Learned counsel further
argued that the appellant has not caused any homicidal death
to the deceased. He has not caused injury to the deceased in
exercise of the right of private defence of the person and
even if he exceeded the right of private defence of the
person, then the same is not punishable under Section 302 of
the Indian Penal Code. Learned counsel also argued that at
the worst his act may fall Exception 4 of Section 300 of the
Indian Penal Code. Exception 4 would apply if death is caused
without premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without the offender having
taken undue advantage or acted in a cruel or unusual manner
and offence does not travel beyond Section 304 Part I of the
Indian Penal Code.
9. Learned counsel placed reliance in the matter of Madan &
Ors. v. State of Madhya Pradesh1 in which the Apex Court has
held that the right commences, as soon as a reasonable
apprehension of danger to the body arises from an attempt, or
threat or commit the offence, although the offence may not
have been committed but not until that there is that
reasonable apprehension. The right lasts so long as the
reasonable apprehension of the danger to the body continues.
Learned counsel further placed reliance in the matter of
Rakesh v. State of M.P.2 in which the Apex Court has held
that in case of sudden fight without premeditation in a
sudden fight in the heat of passion without taking undue
advantage or acted in cruel or unusual manner, the offence
falls under Exception 4 of Section 300 of the Indian Penal
Code and punishable under Section 304 Part I of the Indian
Penal Code. Learned counsel also placed reliance in the
matter of Bihari Rai v. State of Bihar3 in which the Apex
Court has held that the number of injuries is not always a
safe criterion for determining who the aggressor was and
while taking right of private defence extending to voluntary
causing of death, the accused must show that there were
circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be
caused to him. The burden is on the accused to show that he
had a right of private defence which extended to causing of
death. Learned counsel further placed reliance in the matter
of Santokh Singh v. State of Punjab4 in which the Apex Court
has held that in the absence of any evidence to show that
there was apprehension about the safety of the person, it
cannot be said that the accused has exercised the right of
private defence of causing death, conviction would be under
Section 304 Part I of the Indian Penal Code.
10. On the other hand, learned State counsel supported the
judgment impugned and argued that in the present case, both
the persons were quarreled with each other in front of shop
of Tapan Chakravarti (PW-5). The deceased was having umbrella
and apprehension of causing grievous hurt or death to the
appellant was reasonable at that circumstances, but when the
deceased went away from the shop of Tapan Chakravarty armless
(weaponless), then there was no occasion to cause as well as
8 punctured wound over the different parts of the body mainly
over the chest by scissors taking from the shop of Tapan
Chakravarty. These facts clearly show that after leaving the
shop of Tapan Chakravarty by the deceased, there was no
occasion to exercise of right of private defence because
there was no reasonable apprehension of danger to the
appellant and in the absence of such apprehension, 8 injuries
caused by the appellant after taking scissors from shop of
Tapan Chakravarty shows the intension of the appellant of
causing death of the deceased. Learned counsel further argued
that the Court below has rightly convicted and sentenced the
appellant as aforementioned. Learned counsel also argued that
the accused himself has lodged the report which is sufficient
to establish his presence at the time of incident and motive
of the crime.
11. Learned counsel placed reliance in the matter of
Thakarda Lalaji Gamaji v. The State of Gujrat5 in which the
Apex Court has held that F.I.R. lodged by accused can be used
by prosecution to show motive and presence of accused at the
scene of occurrence. F.I.R. lodged by accused showing
deceased to be unarmed. No act of deceased suggested or
proved to justify self-defence, the accused held to be the
aggressor. Learned counsel further placed reliance in the
matter of Bheru Singh s/o Kalyan Singh v. State of Rajasthan6
in which the Apex Court has held that F.I.R. lodged by
accused can be used against the accused as evidence of
conduct under Section 8 of the Evidence Act and relating to
disclosure of facts admissible under Section 27 of the
Evidence Act.
12. In order to appreciate the contentions of the parties,
we have carefully examined ocular and documentary evidence
adduced on behalf of the prosecution. In the present case,
unnatural death of the deceased as a result of injury is not
substantially disputed by the appellant, otherwise also
proved by the statements of Ashok Kumar Singh (PW-2),
Chaganmal (PW-3), Ramnaresh (PW-4), Tapan Chakravarti (PW-5),
Ramji (PW-6), Bharat (PW-7), Bhaiyalal (PW-8), Dr.Vijay
Shankar Sharma (PW-13), Rajnamcha Sanha lodged by the accused
himself (Ex.P/8), admission ticket of the deceased (Ex.P/9),
autopsy report (Ex.P/10), intimation of death (Ex.P/14) and
F.I.R. (Ex.P/1).
13. Dr.Vijay Shankar Sharma (PW-13) has specifically deposed
in his evidence that on 14.9.87 at about 4 p.m., he has
examined the deceased V.S.Vijay Kumar and found the aforesaid
injuries and same were sufficient for causing death. He has
also examined scissors vide Ex.P/11 and opined that injuries
found over the body of the deceased were caused by scissors.
8 punctured wound were found over the body of the deceased
mainly over the chest. High bleeding was not regular. Blood
pressure was not countable and within 15 minutes, he
succumbed to the injuries sustained by him. These facts are
sufficient to prove that the deceased died as a result of
injuries and injuries were sufficient for causing death.
Death was homicidal in nature.
14. As regards the complicity of the appellant in the crime
in question, the present appellant is not disputed the fact
that he was quarreled with the deceased before the shop of
Tapan Chakravarti. He has also taken the defence in his
statement recorded under Section 313 of the Code that Tapan
Chakravarti has deposed that while the appellant was sitting
in front of his shop the deceased came and after abusing him,
assaulted the appellant. The appellant fell down, the
deceased assaulted him by umbrella. He intercepted and
snatched umbrella and caught hold the deceased. He also
advised the appellant to flee away from the spot. The
appellant fled away towards cooperative stores, then the
deceased after pushing him ran away towards the
accused/appellant. He went to purchase some articles to the
shop of Mulla. After sometime, Ramji and Bharatlal came to
his shop and informed him that the deceased died in the
hospital. The prosecution declared him hostile on the point
of scissors taken by the appellant from his shop. Ramnaresh
(PW-4) has also corroborated the first part of the incident
and also deposed that the deceased has pelted stone over the
head of the appellant and caused lacerated wound. Even the
deceased tried to assault the appellant by umbrella. When the
deceased fell down, the appellant assaulted but he has not
seen that by which object the appellant assaulted the
deceased. Other witnesses have deposed that they saw the
deceased lying near the road in the injured condition. They
took him in the hospital. Ramnaresh (PW-4) and Tapan
Chakravarti (PW-5) are the witnesses of the first part of the
incident. According to their statements, the deceased was
aggressor and has caused injury to the appellant, but the
deceased has caused lacerated wound over the head of the
appellant by pelting stone and even he was caught hold by
Tapan Chakravarti. The accused ran away from the spot, then
the deceased chased him towards cooperative stores where the
deceased was finally found badly injured. Ramnaresh (PW-4)
has admitted in para-3 of his cross-examination that the
deceased was trying to insert pointed part of umbrella in
abdomen of the appellant. Tapan Chakravarti (PW-5) has also
admitted in para-14 of his cross-examination that the
deceased was stronger than the appellant. He has admitted in
paras-17 and 18 that the deceased has attempted to homicidal
attack upon the appellant, at that time he has not
intercepted and caught hold umbrella of the deceased, then
the deceased would have been inserted pointed part of
umbrella in abdomen of the appellant. The prosecution has
declared him hostile relating to taking of scissors by the
appellant and tried to explain in paras-4 and 19 that when
the deceased came to his shop, then he kept some articles
over his table may be metallic object and when the deceased
went from his shop, then he saw that article was not present
in the table of his shop. It appears that he is trying to
show that the deceased came with some metallic object but the
same was not found in his shop when the deceased went from
his shop. It shows that the deceased has taken metallic
object with him or the accused has taken metallic object with
him at the time of second part of the incident. The accused
himself has lodged Rojnamcha Sanha vide Ex.P/8 in which it
has been mentioned that the deceased pelting stone over his
head and caused injury. He was holding scissors by which he
has caused injury to the deceased. Confessional part i.e. the
appellant has caused injury to the deceased is not admissible
in evidence in terms of Section 27 of the Evidence Act, but
the fact that the appellant was present along with the
deceased and the appellant was having scissors is admissible
in evidence.
15. As held by the Apex Court in the matter of Bheru Singh
(supra), the part of F.I.R. lodged by the accused can be used
by prosecution to show motive and presence of the accused at
the scene of occurrence and show conduct of the accused. Para-
17 and 19 of the said judgment reads as under:-
“17. Where the first information report is given
by an accused himself to a police officer and
amounts to a confessional statement, proof of the
confession is prohibited by Section 25 of the
Evidence Act. No part of the confessional
statement can be proved or received in evidence,
except to the extent it is permitted by Section 27
of the Evidence Act. The first information report
recorded under Section 154 CrPC is not a
substantive piece of evidence. It may be used to
corroborate the informant under Section 157 of the
Evidence Act or to contradict him under Section
145 of the Evidence Act in case the informant
appears as a witness at the trial. Where the
accused himself lodges the first information
report, the fact of his giving the information to
the police is admissible against him as evidence
of his conduct under Section 8 of the Evidence Act
and to the extent it is non-confessional in
nature, it would also be relevant under Section 21
of the Evidence Act but the confessional part of
the first information report by the accused to the
police officer cannot be used at all against him
in view of the ban of Section 25 of the Evidence
Act.
19. From a careful perusal of this first
information report we find that it discloses the
motive for the murder and the manner in which the
appellant committed the six murders. The appellant
produced the bloodstained sword with which
according to him he committed the murders. In our
opinion the first information report Ex. P-42,
however it not a wholly confessional statement,
but only that part of it is admissible in evidence
which does not amount to a confession and is not
hit by the provisions of Section 25 of the
Evidence Act. The relationship of the appellant
with the deceased; the motive for commission of
the crime and the presence of his sister-in-law PW
11 do not amount to the confession of committing
any crime. Those statements are non-confessional
and can be used against the appellant as evidence
under Section 8 of the Evidence Act. The
production and seizure of the sword by the
appellant at the police station which was
bloodstained, is also saved by the provisions of
the Evidence Act. However, the statement that the
sword had been used to commit the murders as well
as the manner of committing the crime is clearly
inadmissible in evidence. Thus, to the limited
extent as we have noticed above and save to that
extent only the other portion of the first
information report Ex.P-42 must be excluded from
evidence as the rest of the statement amounts to
confession of committing the crime and is not
admissible in evidence.”
16. According to the case of the prosecution, the incident
took place in different parts. The first part of the incident
took place in place of shop of Tapan Chakravarti where the
deceased was aggressor and even he has tried to cause grave
injury to the appellant and assault made by the appellant to
the deceased in front of the shop of Tapan Chakravarti. He is
justified and he was entitled to use the said force in
exercise of right of his private defence available to him
under Sections 99 and 100 of the Indian Penal Code.
17. As regards the second part of the incident is concerned,
the evidence of Tapan Chakraverty reveals that firstly, the
appellant fled away in front of his shop towards cooperative
stores, then the deceased chased him and afterwards the
deceased was found in injured condition. Ex.P/8 report lodged
by the appellant himself shows that the deceased assaulted
him near the shop of Tapan Chakraverty and he was also
holding scissors. Baldau Singh (PW-11) and Bhaiyalal (PW-8)
have not supported disclosure statement and recovery of
scissors. R.N.Yadav (PW-15) Station Officer has supported
disclosure statement of scissors and recovery of scissors at
the instance of the appellant. Same is corroborated by report
lodged by the accused (Ex.P/8). In the light of Ex.P/8 report
of the accused, statement of R.N.Yadav can be safely relied
upon that scissors has been recovered at the instance of the
appellant.
18. According to the statements of Ramnaresh (PW-4) and
Tapan Chakravarty (PW-5), the accused and the deceased went
towards cooperative stores and within short time the deceased
was found in injured condition and the appellant has lodged
the report to the police station Baikunthpur at 5.10 p.m.
vide Ex.P/8. Other witnesses have seen the deceased in
injured condition beside the road and they took him in the
hospital at about 4 p.m. which has been mentioned in Ex.P/9
that second part of the incident/injury caused to the
deceased is closely connected with the first part of the
incident and even there was no time gap between first part of
the incident. At the time of second part of the incident only
two persons i.e. the appellant and the deceased were present
near cooperative stores. The appellant has sustained injury
in the first part of the incident, but the deceased sustained
as well as 8 punctured wound over vital parts of the body
mainly upon the chest at the time of second part of the
incident. According to Dr.Vijay Shankar Sharma (PW-13), the
injuries can be caused by scissors recovered from the
appellant in open condition which shows that by one stroke
two injuries have been caused and as a result of 4 to 5
attacks, the aforesaid injuries have been caused to the
deceased. Scissors was sent for chemical analysis and
presence of blood over scissors was affirmed vide Ex.P/19.
19. The appellant has taken the defence that he has caused
injuries in exercise of right of private defence available to
him even sufficient for causing death of the deceased. Under
these circumstances he was having apprehension that the
deceased has caused grievous injures to him.
20. As held by the Apex Court in the matter of Madan
(supra), the right commences, as soon as a reasonable
apprehension of danger to the body arises from an attempt, or
threat, or commit the offence. Para 7 of the said judgment
reads as under:-
“7. Sections 102 and 105, IPC deal with
commencement and continuance of the right of
private defence of body and property respectively.
The right commences as soon as a reasonable
apprehension of danger to the body arises from an
attempt, or threat, or commit the offence,
although the offence may not have been committed
but not until that there is that reasonable
apprehension. The right lasts so long as the
reasonable apprehension of the danger to the body
continues. In Jai Dev v. State of Punjab (AIR 1963
SC 612), it was observed that as soon as the cause
for reasonable apprehension disappears and the
threat has either been destroyed or has been put
to route, there can be no occasion to exercise the
right of private defence.”
21. In the present case, admittedly the appellant sustained
injury by pelting stone by the deceased at the time of first
part of the incident. The deceased has also tried to cause
grievous injury by using of umbrella at the time of first
part of the incident when both the persons went/fled away
towards cooperative stores, at that time the deceased was not
having umbrella. It appears from the evidence of Ramnaresh
(PW-4) that both the persons were pelting stone upon each
other, but except one injury over the head of the appellant,
no other injuries were found to show that the deceased has
caused more injuries to the appellant. At the time of second
part of the incident, the appellant was having scissors.
Injuries found over the body of the deceased would have been
caused from scissors recovered at the instance of the
appellant. No any weapon/object was found near the place of
incident or any of the injury to show that injured/deceased
was having any object or weapon at the time of second part of
the incident. In the absence of any injury to the appellant
at the time of second part of the incident or presence of
weapon in hands of the deceased, there was no occasion to
cause as well as 8 fatal injuries over vital parts of the
deceased by the appellant. Both parts of the incident are
connected with each other sufficient for drawing inference
that the appellant is the person who has caused the aforesaid
injuries to the deceased by scissors. At the time of second
part of the incident, right of private defence was not
available to the appellant in the absence of apprehension of
causing grievous injury or death especially when the deceased
was armless and the appellant was having scissors, but the
continuance of quarrel shows that this is the case of sudden
fight and the appellant has caused injuries without
premeditation in a sudden fight in the heat of passion upon a
sudden quarrel and without taking undue advantage. The
appellant has lost his patience when he was without any fault
beaten by the deceased and even the deceased tried to cause
grievous injury by umbrella at the first part of the
incident, then after loosing his patience, the appellant has
caused the aforesaid injury by using scissors for about 4 to
5 times.
22. While dealing with the case of sudden fight, the Apex
Court in the matter of Rakash (supra) has held that sudden
fight without premeditation after 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. Para 7 of the said
judgment reads as under:-
“7.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
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 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
acted 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 that 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”.
23. In case of exceeding the right of private defence and
causing death of the deceased, the Apex Court in the matter
of Madan (supra) has held that the act of the accused does
not travel beyond Section 304 Part I of the Indian Penal Code
and custodial sentence of 10 years was just and proper. Para
10 of the said judgment reads as under:-
“10. On a combined reading of the judgments of the
trial Court and the High Court it is clear that
the evidence is to the effect that the accused
appellants were upto some stage exercising the
right to protect and defend their properties. But
thereafter they exceeded the right. Therefore,
this appears to be a case where instead of
convicting the appellants under Section 302 IPC it
would be proper to convict the appellants for
offence punishable under Section 304 Part I, IPC.
Custodial sentence of 10 years would meet the ends
of justice.”
24. While dealing with the availability of right of private
defence, the Apex Court in the matter of Bihari Rai (supra)
has held that the accused is required to show that there was
circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be
caused to him. The burden is on the accused to show that he
had a right of private defence which extended to causing of
death. Para 13 of the said judgment reads as under:-
“13. The number of injuries is not always a safe
criterion for determining who the aggressor was.
It cannot be stated as a universal rule that
whenever the injuries are on the body of the
accused persons, a presumption must necessarily be
raised that the accused persons had caused
injuries in exercise of the right of private
defence. The defence has to further establish that
the injuries so caused on the accused probabilises
the version of the right of private defence. Non-
explanation of the injuries sustained by the
accused at about the time of occurrence or in the
course of altercation is a very important
circumstance. But mere non-explanation of the
injuries by the prosecution may not affect the
prosecution case in all cases. This principle
applies to cases where the injuries sustained by
the accused are minor and superficial or where the
evidence is so clear and cogent, so independent
and disinterested, so probable, consistent and
creditworthy, that it far outweighs the effect of
the omission on the part of the prosecution to
explain the injuries. [See: Lakshmi Singh v. State
of Bihar (AIR 1976 SC 2263). A plea of right of
private defence cannot be based on surmises and
speculation. While considering whether the right
of private defence is available to an accused, it
is not relevant whether he may have a chance to
inflict severe and mortal injury on the aggressor.
In order to find whether the right of private
defence is available to an accused, the entire
incident must be examined with care and viewed in
its proper setting. Section 97 deals with the
subject-matter of right of private defence. The
plea of right comprises the body or property (i)
of the person exercising the right; or (ii) of any
other person; and the right may be exercised in
the case of any offence against the body, and in
the case of offences of theft, robbery, mischief
or criminal trespass, and attempts at such
offences in relation to property. Section 99 lays
down the limits of the right of private defence.
Sections 96 and 98 give a right of private defence
against certain offences and acts. The right given
under Sections 96 to 98 and 100 to 106 is
controlled by Section 99. To claim a right of
private defence extending to voluntary causing of
death, the accused must show that there were
circumstances giving rise to reasonable grounds
for apprehending that either death or grievous
hurt would be caused to him. The burden is on the
accused to show that he had a right of private
defence which extended to causing of death.
Sections 100 and 101, IPC define the limit and
extent of right of private defence.
25. In the present case, right of private defence was
available to the appellant in the first part of the incident,
but in second part of the incident right of private defence
was not available to him. But second part of the incident was
continuance of the first part of the incident and quarrel was
sudden without premeditation and the appellant has lost his
patience in the heat of passion and he assaulted the
deceased.
26. For the foregoing reasons, we are of the considered view
that the appellant has caused homicidal death of the deceased
V.S.Vijay Kumar which is punishable under Section 304 Part I
of the Indian Penal Code, not punishable under Section 302 of
the Indian Penal Code. The Court below has not considered the
most material fact that offence took place without
premeditation and as a result of sudden quarrel and in the
heat of passion after total deprivation of self-control,
therefore, the act of the appellant squarely falls within the
admit of Section 304 Part I of the Indian Penal Code.
27. In the result, the appeal is partly allowed. Conviction
of the appellant is modified and instead of Section 302 of
the Indian Penal Code, the appellant is convicted under
Section 304 Part I of the Indian Penal Code and sentenced him
to undergo rigorous imprisonment for 10 years instead of life
imprisonment. The appellant is on bail. He is directed to
surrender himself immediately before the Chief Judicial
Magistrate, Ambikapur for serving the remaining sentence
imposed upon him.
JUDGE JUDGE