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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     No.     1339     of     2008      

Raj Paul Singh & Anr.                              …… Appellants

Versus

State through P.S. Musheerabad, Hyderabad                                                   ….. Respondent

J     U     D     G     M     E     N     T   

A.     K.     PATNAIK,     J.   

This is an appeal against the judgment and order  

dated 16.04.2007 of the Andhra Pradesh High Court in  

Criminal Appeal No. 1258 of 2005.

2. The facts very briefly are that on 19.04.2004 Santoshi  

(hereinafter referred to as ‘the informant’) lodged an FIR in  

Musheerabad P.S., District Hyderabad, alleging that on  

18.04.2004 at about 9.30 P.M. her husband’s brother, the  

appellant no.1, came in an auto in a fully drunken

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condition, went to his house situated opposite to her house  

and started abusing her in filthy language and her  

husband, she and their children came down from their  

portion on the first floor and her husband warned the  

appellant not to abuse him, but the appellant did not listen  

and he asked his wife to get a knife and his wife, appellant  

no.2 herein, went to the kitchen and brought one knife and  

gave it to the appellant no.1 and the appellant no.1 took the  

knife and stabbed the husband of the complainant on the  

left side of his chest and as a result the husband of the  

informant fell down with bleeding injury and he was taken  

to the Sagarlal Hospital, where he died subsequently.  The  

Inspector of the P.S. Musheerabad, M. Bhasker Reddy,  

registered a case under Section 302 read with Section 34 of  

the Indian Penal Code, 1860 (for short ‘the IPC’).  He visited  

the hospital, the scene of occurrence, conducted the inquest  

and sent the dead body of the deceased for post mortem  

examination.  The appellant no.1 was then arrested and at  

his instance the knife was recovered and after investigation,  

a charge-sheet was filed against both the appellants for the  

offence punishable under Section 302 read with Section 34,  

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IPC.  The case was registered as Sessions Case No. 562 of  

2004 and after framing of charges, the appellants were  

tried.  

3. At the trial, the informant was examined as PW-1, one  

of the sons of the deceased was examined as PW-2, Dr. C.  

Surender Reddy, who conducted the post mortem on the  

dead body of the deceased, was examined as PW-3 and M.  

Bhasker Reddy, the Inspector of Police and the Investigating  

Officer, was examined as PW-7.  On behalf of the defence,  

the mother of the deceased, Laxmi Bai, was examined as  

DW-1.  By the judgment dated 19.07.2005, the 1st  

Additional Metropolitan Sessions Judge held both the  

appellants guilty of the offence under Section 302 read with  

Section 34, IPC, and sentenced them to life imprisonment  

and to pay fine of Rs.100/- and in default to undergo  

Simple Imprisonment for one month.    

4. The appellants then filed Criminal Appeal No. 1258 of  

2005, but by the impugned judgment, the Division Bench of  

the High Court sustained the conviction and the sentence.  

Aggrieved, the appellants have filed this appeal by way of  

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Special Leave under Article 136 of the Constitution.  On  

11.02.2008, this Court issued notice qua the nature of the  

offence only and on 18.08.2008 this Court granted leave  

after condoning the delay in filing the special leave petiton,  

but refused bail to the appellants.   

5. Learned counsel for the appellants submitted that the  

nature of the offence committed by the appellants is not  

murder as defined in Section 300, IPC, but culpable  

homicide not amounting to murder under Section 304, IPC,  

for which a punishment less than life imprisonment may be  

imposed on the appellants.  He referred to Exception 4 to  

Section 300, IPC, which states that culpable homicide is not  

murder if it is committed 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.  He submitted that in the  

facts of the present case there was no premeditation on the  

part of the appellants and there was a sudden quarrel and a  

sudden fight and the appellant no.1 stabbed the deceased in  

the heat of passion and therefore Exception 4 to Section  

300, IPC, was attracted.  In support of his submission, he  

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cited the decision of this Court in Naveen Chandra v. State  

of Uttranchal [2007(1) RCR (Criminal) 689].  Learned  

counsel for the respondent, on the other hand, submitted  

that this is not a case which would at all fall under  

Exception 4 to Section 300, IPC. and that both the trial  

court and the High Court have rightly held that the  

appellants were guilty of the offence of murder under  

Section 302 read with Section 34, IPC.   

6. Exception 4 to Section 300, IPC, is quoted hereinbelow:  

“Culpable homicide is not murder if it is  committed 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.”

It will be clear from the language of Exception 4 to Section  

300, IPC, quoted above that culpable homicide will not  

amount to murder if it is committed without premeditation  

in a sudden fight in the heat of passion upon a sudden  

quarrel provided the offender has not taken undue  

advantage or acted in a cruel or unusual manner.  In  

Narayanan Nair Raghavan Nair v. The State of Travancore –  

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Cochin (AIR 1956 SC 99), a three-Judge Bench of this Court  

speaking through Bose, J. held:  

“It is enough to say that the Exception requires  that no undue advantage be taken of by 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. Then also, the fight  must be with the person who is killed.”

This view on Exception 4 to Section 300, IPC, has also been  

taken by this Court in Kikar Singh v. State of Rajasthan (AIR  

1993 SC 2426) wherein it has been held:

“Where the deceased was unarmed and did  not cause any injury to the accused even  following a sudden quarrel if the accused has  inflicted fatal blows on the deceased,  exception 4 is not attracted and commission  must be one of murder punishable under S.  302.”

Thus, in a case where a man stabs another person, unless it  

is established that there was some threat from that person  

to the offender, the Court cannot possibly hold that the  

offender by stabbing that person has not taken any undue  

advantage or has not acted in a cruel or unusual manner.  

7.  In this case, the conviction of the appellants for the  

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offence under Section 302 read with Section 34, IPC, is  

based on the evidence of PW-1 and PW-2, the two eye  

witnesses.  If we read their evidence, we find that PW-1 has  

stated:

“Disputes arose between me and A-2 with  regard to collection of empty wine bottles  between the children of A-2 and collected from  a Raja Deluxe theater and that A-2 used to  abuse in filthy language.  The disputes arose  prior to 4 months of the incident and disputes  were continued.  On 18.04.2004 at about 9.30  p.m. A-1 came to house in drunken condition  and started abusing me in filthy language by  saying Maake Loude.  On that I along with my  husband and children came down to ground  floor.  My deceased husband chastised A-1 by  saying that he should not abuse me as I am  his sister in law and he did not stop abusing me.

A-1 instructed A-2 to bring a knife.  On that A- 2 went inside the house and brought a meat  cutting knife and gave it to A-1 and instigated  A-1 to stab my husband.  Then A-1 stabbed  my husband on the left side of chest, when A-1  removed the knife from injury my husband fell  down on the ground and we noticed blood was  oozing from injury.”

Similarly, PW-2 has deposed:  

“The disputes arose between family of accused  and our family with regard to collection of  empty wine bottles from the wine shop  situated by the side of Rolex Café,  Musheerabad.  The disputes were going on for  

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the last four months prior to the date of  incident.  While I was about to leave the house  of PW-1 after taking meals, at 9.30 p.m.  A-1  came to house in drunken condition and  started abusing PW-1.  He abused PW-1 by  saying “Maake Loude”.  On hearing the abusive  words, I along with my father, PW-1 and  others came to ground floor.  

My father questioned A-1 as to why he was  abusing PW-1.  A-1 replied that he will abuse  PW-1 like that only.  My father told A-1 not to  abuse PW-1 as she is his sister-in-law.  On  that A-1 instructed A-2 to bring a knife from  his portion of house.  A-2 went inside the  portion and brought a knife and gave it to A-1.  Then A-1 stabbed my father on the left side of  chest on the instigation of A-2.  It was a  mutton cutting knife.  After stabbing accused  removed the knife and went away.  My father  received bleeding injury and he fell down on  the floor.  After the incident both the accused  went inside their portion and some time  thereafter they escaped from the house.  I  lifted my father to Sagarlal Hospital 10  minutes after his admission, doctors informed  me about the death of my father.  I came back  to the house of PW-1 and informed her about  the death of my father on that she became  unconscious and fell down”.

8. It will be clear from the evidence of the two eye  

witnesses quoted above that the deceased was unarmed and  

there was absolutely no physical threat from the deceased  

to the appellants and the appellant no.1 after being  

provided with a knife by the appellant no.2 stabbed the  

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deceased on the left side of the chest on the instigation of  

the appellant no.2 and because of these injuries the  

deceased died.  This was, thus, a case where the appellants  

have taken undue advantage and have acted in a cruel or  

unusual manner and the case did not fall within Exception  

4 to Section 300, IPC.  In Naveen Chandra v. State of  

Uttranchal (supra) cited on behalf of the appellants, this  

Court has clearly held:   

“Where the offender takes undue advantage or  has acted in a cruel or unusual manner, the  benefit of Exception 4 cannot be given to him. If  the weapon used or the manner of attack by the  assailant is out of all proportion, that  circumstance must be taken into consideration to  decide whether undue advantage has been taken”

9. In our considered opinion, therefore, the case of the  

appellants does not fall within Exception 4 to Section 300,  

IPC, and the trial court and the High Court have rightly held  

the appellants guilty of the offence of murder under Section  

302 read with Section 34, IPC.  The appeal has no merits  

and is accordingly dismissed.  

.……………………….J.                                                            (A. K. Patnaik)

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………………………..J.                                                            (Swatanter Kumar) New Delhi, October 09, 2012.    

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