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  REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1249 OF 2013 (@SPECIAL LEAVE PETITION (CRL) No.4928 of 2011)

STATE OF ORISSA      … APPELLANT VERSUS

KHAGA @ KHAGESWAR NAIK & ORS.     …RESPONDENTS

J U D G M E N T  

CHANDRAMAULI KR. PRASAD, J.

State of Orissa, aggrieved by the judgment  

and order dated 1st September, 2009 passed in Criminal  

Appeal No.274 of 1997 whereby the Division Bench of  

the  High  Court  has  altered  the  conviction  of  the  

respondents from Section 302/34 to Section 304 Part  

II  of  the  Indian  Penal  Code  (hereinafter  to  be  

referred to as ‘the IPC’), has preferred this Special  

Leave Petition.

Leave granted.

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In the present appeal, as we are concerned  

with  the  nature  of  the  offence  said  to  have  been  

committed  by  the  respondents  (hereinafter  to  be  

referred to as ‘the convicts’), we shall refer to  

only those facts which are necessary for decision on  

the said issue.  Occurrence in the present case had  

taken  place  in  Raghunathpali,  a  hamlet  within  the  

district  of  Sambalpur  in  the  State  of  Orissa.  As  

usual,  on  11th October,  1995  Mohini  Naik  and  her  

father, Tikeshwar Naik were sleeping at their home in  

separate rooms adjoining each other. When the entire  

village was fast asleep, the convicts came to their  

house at 11.00 P.M. and knocked the door in which  

Mohini,  the  rustic  villager  was  sleeping.  She  was  

asked  to  open  the  door  of  her  room.  She  could  

recognize the convict Khageswar from his voice and on  

enquiry as to who was knocking the door, Khageswar  

disclosed his name. She opened the door and saw the  

three convicts standing at the door.  Two of them  

i.e. Khageswar and Kampa entered into her room and  

molested her. She raised alarm whereupon her father,  

Tikeshwar woke up and arrived at the spot and abused  

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the  convicts  in  obscene  language.  All  the  three  

convicts caught hold of her father, assaulted him by  

kicks and blows and dragged him towards the orchard.  

He  was  followed  by  his  daughter,  Mohini,  the  

informant of the case. She was threatened that if she  

will come out, they will kill her. Mohini saw her  

father being assaulted from a distance by Khageswar  

and Dusasan. While Tikeswar was abusing the convicts,  

Khageswar brought one ‘budia’ from his house and gave  

blows to him. Similarly, convict Dusasan brought a  

‘lathi’  from  his  home  and  assaulted  her  father.  

Ultimately, Mohini could see the dead body of her  

father lying in ‘Nala’ at about 3.00 P.M. on 12th  

October, 1995.

Police  after  usual  investigation  submitted  

the  charge-sheet  and  the  convicts  were  ultimately  

committed to the Court of Session to face the trial.  

The  convicts  were  charged  for  commission  of  the  

offences under Sections 457,354,506,302 and 201/34 of  

the IPC.  They pleaded not guilty and claimed to be  

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tried.  Their  defence  is  false  implication  but  no  

defence witness has been examined.  

The trial court on appreciation of evidence came  

to the conclusion that the prosecution has been able  

to prove its case beyond all reasonable doubt against  

the convicts and accordingly, it convicted them for  

offences  under  Sections  457,354,506,302,  201/34  of  

the IPC. On appeal, the High Court accepted the case  

of  the  prosecution  but  held  that  the  allegations  

proved construed an offence under Section 304Part-II  

of  the  IPC.  Accordingly,  while  maintaining  the  

conviction  of  the  respondents  under  Sections  

457,354,506 and 201/34 of the IPC, the High Court  

altered their conviction from Section 302/34 of the  

IPC to that of Section 304 Part II of the IPC and  

sentenced them to undergo rigorous imprisonment for a  

period of eight years for offence under Section 304,  

Part II of the IPC. While doing so, the High Court  

observed as follows:

“ 17. We,  however,  find  that the prosecution has failed to  

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establish that the accused persons  had  any  prior  motive  or  pre-meditation  to  kill  deceased  Tikeswar  and  admittedly,  the  prosecution has not been able to  establish  that  there  was  any  enmity  between  deceased  Tikeswar  or  his  daughter  Mohini  (P.W.4)  with  the  accused  persons.  It  appears, the accused persons who  had gone to the house of P.W.4 to  commit sexual act, on being abused  by Tikeswar in obscene language,  got provoked and attacked Tikeswar  in a fit of anger and on the spur  of the moment, without any prior  planning or design. The act of the  accused persons appears to be more  by  way  of  sudden  retaliation  in  the  heat  of  passion,  on  being  abused  by  deceased  Tikeswar  in  obscene  language  and  was  not  pre-planned  or  intentional.  Accordingly, we feel, the interest  of justice would be best served,  if the conviction of the accused  persons under Section 302/34 IPC  is  modified  and  reduced  to  one  under Section 304 Part II IPC. The  conviction of the accused persons  under  Sections  457/354/506/201/34  IPC needs no interference.”

This is how the appellant- State of Orissa is  

before us and challenges the alteration of conviction  

from Section 302/34 to that of Section 304 Part II of  

the IPC.

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Mr.  Radha  Shyam  Jena,  learned  counsel  

appearing on behalf of the appellant submits that the  

allegations proved clearly make out a case of murder  

punishable under Section 302 of the IPC and the High  

Court erred in altering the same to Section 304 Part  

II  of  the  IPC.  Mrs.  Rachana  Joshi  Issar,  learned  

counsel  appearing  on  behalf  of  the  respondents  

supports the judgment of the High Court and contends  

that the offence having been committed without pre-

meditation  in  a  heat  of  passion,  Exception  4  to  

Section 300 of the IPC is clearly attracted and hence  

the  allegation  proved  is  culpable  homicide  not  

amounting to murder. Accordingly, she submits that  

the order of the High Court does not call for any  

interference.

The  rival  submission  necessitates  

examination of Exception 4 to Section 300 of the IPC,  

same reads as follows:

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“ 300. Murder.- xx xx xx

Exception 4.- 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.

Explanation.-  It  is  immaterial  in such cases which party offers  the provocation or commits the  first assault.”

From a plain reading of the aforesaid exception it is  

evident that it shall be attracted only if the death  

is caused (i) without premeditation, (ii) in a sudden  

fight and (iii) in a heat of passion upon a sudden  

quarrel. If all these ingredients are satisfied, the  

exception will come into play only when the Court  

comes to the conclusion that the offender  had not  

taken undue advantage or acted in a cruel or unusual  

manner. Above all, this section would be attracted  

when  the  fight  had  taken  place  with  the  person  

killed.  

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The aforesaid view finds support from a judgment  

of this Court in Pappu vs. State of M.P. (2006) 7 SCC  391 in which it has been held as follows:

“13……  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 defined in 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…..“

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In  this  background  when  we  consider  the  

facts of the present case, we have no manner of doubt  

that Exception 4 to Section 300 of the IPC is not at  

all attracted. In the case in hand, the convicts had  

entered the room of the daughter of the deceased in  

midnight, molested her and the poor father, perhaps  

because of his age, could not do anything other than  

to abuse the convicts. He gave choicest abuses but  

did not fight with the convicts. Verbal abuses are  

not fight as it is well settled that at least two  

persons  are  needed  to  fight.  Therefore,  this  

ingredient is not satisfied.

Then, can it be said that the crime has been  

committed in a heat of passion? If time is taken to  

cool down, then the crime cannot be said to have been  

committed in a heat of passion. It is the specific  

case of the prosecution, which in fact, has also been  

accepted  by  the  High  Court  that  “when  her  father  

Tikeswar  abused  them,  the  accused  Khageswar  being  

annoyed  brought  a  budia  from  his  house,  which  is  

nearby, and dealt blows to her father and accused  

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Dusasan brought a lathi and assaulted her father.”  

This  clearly  shows  that  both  the  convicts  had  

sufficient time to cool down and therefore, it cannot  

be said that the crime was committed in a heat of  

passion.

So  far  as  the  convict,  Kampa  @  Sricharan  

Naik is concerned, he is convicted with the aid of  

Section 34 of the IPC. All of them have come together  

and participated in the crime which goes to show that  

these convicts shared the common intention.

In the face of what we have observed above,  

it is clear that the High Court erred in holding that  

the offence for which the convicts can be held guilty  

shall be Section 304 Part II of the IPC.

In  the  result,  we  allow  this  appeal,  set  

aside that portion of the judgment of the High Court  

whereby  it  had  altered  the  conviction  of  the  

respondents from Section 302/34 of the IPC to that of  

Section 304/34 of the IPC and restore that of the  

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trial  court.  The  respondents,  if  have  not  already  

undergone the sentence awarded by the trial court,  

shall forthwith be taken into custody to serve out  

the remainder of the sentence.  

          ........................J [R.M.LODHA]

     ........................J     [CHANDRAMAULI KR. PRASAD]

NEW DELHI AUGUST 23, 2013.

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