# Shravan v. State

- **Citation:** (2020) 6 ILRA 560
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-27
- **Bench:** Pritinker Diwaker, Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shravan-v-state-45858
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code,1860-
Exception 4 to Section 300 of the IPC - Applies
in the absence of any premeditation. The help of
6 All. Shravan Vs. State
561
Exception 4 can be invoked if death is caused (a)
without premeditation, (b) in a sudden fight, (c)
without
the
offenders
having
taken
undue
advantage or acted in a cruel or unusual manner,
and (d) the fight must have been with the person
killed. 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 that the offender has not taken undue
advantage or acted in a cruel or unusual manner.
The expression "undue advantage" as used in the
provision means "unfair advantage".
In order to come within the purview of Exception 4
to Section 300, it is equally important to show that
the offender/ accused has not taken " undue
advantage" or acted in a cruel or unusual manner.

Criminal Law - Indian Penal Code- Section
304 - Culpable Homicide not amounting to Murder-
whenever a court is confronted with the question
whether the offence is "murder" or "culpable
homicide not amounting to murder", on the facts of
a case, it will be convenient for it to approach the
problem in three stages. The question to be
considered at the first stage would be, whether the
accused has done an act by doing which he has
caused the death of another. Proof of such causal
connection between the act of the accused and the
death, leads to the second stage for considering
whether that act of the accused amounts to
"culpable homicide" as defined in Section 299. If the
answer to this question is prima facie found in the
affirmative, the stage for considering the operation
of Section 300 of the Penal Code, is reached. This is
the stage at which the court should determine
whether the facts proved by the prosecution bring
the case within the ambit of any of the four clauses
of the definition of "murder" contained in Section

## Text

560 INDIAN LAW REPORTS ALLAHABAD SERIES
ornamental role of exhortation to him on
which the other two appellants are stated to
have fired at the deceased, though as per the
prosecution case the dispute, if any, was
between the appellant Nishu Dixit and
Chandan Kumar and the deceased.Thus, this
circumstance further shows that PW1 Ghurai
Lal Gupta was being guided by some one for
falsely implicating persons for oblique motives
and one of the co-accused Chandan Tiwari
who was further implicated by him during the
course of investigation and arrayed as an
accused during the investigation, was put to
trial and ultimately acquitted by the trial Court
finding his involvement to be false.

106. Thus, in view of the aforesaid
foregoing discussions, the Court after
scanning
and
scrutinizing
the
prosecution
evidence
and
findings
recorded by the trial Court in convicting
and sentencing the appellants finds that
the conviction and sentence of the
appellants recorded by the trial Court is
not sustainable on the basis of the
evidence on record. The appellants are
entitled for the benefit of doubt, as this
Court has found evidence of PW1 and
PW2
neither
wholly
reliable
nor
unreliable as from their evidence the
guilt of the appellants is not fully
established beyond reasonable doubt
and it would be quite unsafe to hold
them guilty. Hence, in view of the
same, the judgement and order dated
30.10.2013 passed by the trial Court is
liable to be set aside by this Court. It is,
accordingly, set aside and the appellants
are acquitted of the charges. The appeal
stands allowed.

107. The appellant no.1-Nishu @
Brijesh
Dixit
and
appellant
no.3Chandan Kumar are stated to be in jail,
they shall be released forthwith, unless
otherwise wanted in any other criminal
case.

108. The appellant No.2-Lalit Dixit
is stated to be on bail. His bail bonds and
sureties are discharged. He need not
surrender.

109. It is further directed that the
appellants shall furnish bail bond with
surety to the satisfaction of the Court
concerned in terms of the provision of
Section 437-A of Cr.P.C.

110. The Registrar General of this
Court is directed to ensure that the certified
copy of this order along with the lower
court record be transmitted to the trial
Court concerned for its information and
compliance forthwith.
----------
(2020)06ILR A560
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2020

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE SHEKHAR KUMAR YADAV, J.

Jail Appeal No. - 7338 of 2010

Shravan ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Manoj Kumar Srivastava, Sri
Birendra S. Pandey, Sri Mohd. Farooq
Ansari

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code,1860-
Exception 4 to Section 300 of the IPC - Applies
in the absence of any premeditation. The help of
6 All. Shravan Vs. State
561
Exception 4 can be invoked if death is caused (a)
without premeditation, (b) in a sudden fight, (c)
without
the
offenders
having
taken
undue
advantage or acted in a cruel or unusual manner,
and (d) the fight must have been with the person
killed. 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 that the offender has not taken undue
advantage or acted in a cruel or unusual manner.
The expression "undue advantage" as used in the
provision means "unfair advantage".
In order to come within the purview of Exception 4
to Section 300, it is equally important to show that
the offender/ accused has not taken " undue
advantage" or acted in a cruel or unusual manner.

Criminal Law - Indian Penal Code- Section
304 - Culpable Homicide not amounting to Murder-
whenever a court is confronted with the question
whether the offence is "murder" or "culpable
homicide not amounting to murder", on the facts of
a case, it will be convenient for it to approach the
problem in three stages. The question to be
considered at the first stage would be, whether the
accused has done an act by doing which he has
caused the death of another. Proof of such causal
connection between the act of the accused and the
death, leads to the second stage for considering
whether that act of the accused amounts to
"culpable homicide" as defined in Section 299. If the
answer to this question is prima facie found in the
affirmative, the stage for considering the operation
of Section 300 of the Penal Code, is reached. This is
the stage at which the court should determine
whether the facts proved by the prosecution bring
the case within the ambit of any of the four clauses
of the definition of "murder" contained in Section
300. If the answer to this question is in the negative
the offence would be "culpable homicide not
amounting to murder", punishable under the first or
the second part of Section 304, depending,
respectively, on whether the second or the third
clause of Section 299 is applicable. If this question is
found in the positive, but the case comes within any
of the exceptions enumerated in Section 300, the
offence would still be "culpable homicide not
amounting to murder", punishable under the first
part of Section 304, of the Penal Code."
If the facts proved by the prosecution do not bring
the case within the ambit of any of the four clauses
to Section 300 IPC, then the offence would be of "
Culpable Homicide not amounting to Murder" being
punishable under the First or Second Part of Section
304 IPC.

Criminal Law - Indian Penal Code, 1860-
Section 304 Part II- Sudden fight- No premeditation- Absence of intention-The case in
hand is of a sudden fight without any
premeditation or overreacted while committing
the crime in question, and without there being
any intention on the part of the appellant and,
accordingly, Exception 4 to Section 300 of IPC
would
be
attracted
in
the
facts
and
circumstances of the case. The crime committed
by the accused-appellant, as such, does not
travel beyond an offence described under
Section 304 Part II of Indian Penal Code.

In the facts of the present case, there was a
heated
altercation
initially
between
the
deceased and the accused persons when
suddenly one accused assaulted the deceased
with a knife. Hence, the case is one of sudden
quarrel without any premeditation and intention
on part of the accused and will come within the
ambit of Section 304 Part II of the IPC.
Sentence reduced to period already undergone
by the appellants in jail and fine enhanced to
Rs. 50,000/-.
(Para 19, 20, 21, 25, 26, 27, 28, 29)

Criminal Appeal partly allowed. (E-3)

Case Law relied upon/ Discussed:-

1. St. of A. P Vs Rayavarapu Punnayya & anr.,(
1976) 4 SCC 382

2. Budhi Singh Vs St. of H.P (2012) 13 SCC 663

3. Kikar Singh Vs St. of Raj. (1993) 4 SCC 238

4. Surain Singh Vs.St. of Punj. ( 2009) 4 SCC
331

5. Ankush Shivaji Gaikwad Vs St. of Maha (
2013) 6 SCC 770

6. Kumaran Vs St. of Kerala & anr. (2017) 7 SCC
471

(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)
562 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Instant Jail Appeal arises out of
impugned judgment and order dated
09.09.2010 passed by the Additional
Sessions Judge, Court No.12, Aligarh in
Sessions Trial No.1019 of 2008, convicting
the appellant under Section 302/34 of
Indian Penal Code and sentencing him to
undergo imprisonment for life with a fine
of Rs.10,000/-; in default thereof, three
months additional simple imprisonment.

2. The entire case, in a nutshell is, that
complainant Smt. Rani (PW-1) w/o Kalyan
Singh, lodged a complaint (Ex Ka.1) on
07.03.2008 at 00.15 am, alleging that on
06.03.2008 at 10.30 pm, her son Santosh
was repairing electric wire from an electric
pole adjoining wall of the accused on
which accused Raju came and had hot talk
to deceased Santosh. After hearing noise,
complaint (PW-1), her husband Kalyan
Singh (PW-2) and her brother-in-law
(Devar) [not examined], reached to the
place of incident; they saw Raju caught
hold her son Santosh; appellant Shravan
was assaulting to the deceased with knife
and when they saw their son, then accused
Raju and Shravan fled away. The deceased
brought to the hospital by his parents for
treatment, but the doctor declared him
dead.

3. On the basis of aforesaid written
complaint, a First Information Report (Ex.
Ka.3) was registered as Crime No.91 of
2008 contemplating offences punishable
under Section 302 of IPC against the
accused persons.

4. Immediately after registration of
the FIR, investigation was undertaken by
Sub Inspector Sansar Singh Rathi (PW6); he prepared Inquest Report (Ex Ka-5)
and sent the dead body of deceased
Santosh in a sealed cover for postmoretm in the custody of Constable Jai
Prakash Yadav and Surajpal. Bloodstained earth as well as simple earth and
one knife (Ex Ka.2) dated 26.04.2010
were recovered from the place of
occurrence. The Investigating Officer
also recorded the statements of eye
witnesses.

5. Post-mortem of deceased Santosh
was conducted on 07.03.2008 at about 4.00
pm by Dr. L.K. Saxena (PW-3), ENT
Surgeon, District Malkhan Singh Hospital,
Aligarh. He prepared post-mortem report
(Ex Ka.2 dated 21.05.2010) and noticed the
following injuries on the dead body of the
deceased:

"(i) Incised wound 3.0 cm x 1.0
cm x bone deep on front of upper part of
right thigh. Horizontal in place. Margie
clean cut right femoral arty and vain are
both ruptured 4.5 cm lateral to scrotum.

(ii) Abrasion 3.0 cm x 2.0 cm on
right side fold lateral malleolus."

As per post-mortem report, cause of
death
of
deceased
Santosh
was
"haemorrhage and shock due to antimortem injuries".

6.

Investigating
Officer,
after
completing the investigation, submitted
charge sheet (Ex Ka-11) against the
accused persons under Section 302/34 of
IPC.

7. The case, being a Sessions Triable,
was committed to the Court of Sessions
Judge. On 03.11.2009, the Sessions Judge
heard the arguments and after considering
the entire material available on record,
framed charge against the accused persons
under Section 302/34 of IPC. The aforesaid
charge was read over and explained to the
6 All. Shravan Vs. State
563
accused persons. On denial of the same,
trial commenced.

8. During the course of trial,
prosecution supported its case with the aid
of seven witnesses. After completing the
prosecution evidence, the accused persons
were examined under Section 313 Cr.P.C.
in which, they have pleaded their innocence
and false implication and claimed trial.

9. Learned trial Court, relying upon
the statements of PWs, recorded the
conviction of the accused persons for the
offence punishable under Section 302/34 of
IPC and sentenced them, as mentioned in
paragraph no.1 of this judgment. Hence,
this appeal.

10. Contention of learned counsel for
the appellant is as under:

(i) that the incident took place
suddenly and there was no premeditation
on the part of the accused-appellant,
therefore, it falls under Exception 4 to
Section 300 of IPC.

(ii) that even if the entire case of
prosecution is taken as it is, offence under
Section 302/34 of IPC is not made out
against the appellant and he is liable to be
convicted under Section 304 Part I or Part
II of IPC.

11. Per contra, in support of the
impugned judgment, learned AGA, interalia, submitted that the conviction of the
appellant is strictly in accordance with law.
He further submitted that the trial Court has
rightly convicted the appellant after due
and proper consideration of the evidence
available on record; hence, the order
impugned
does
not
warrant
any
interference.

12. We have heard Mr. Manoj Kumar
Srivastava,
learned
counsel
for
the
appellant and Sri Amit Sinha, learned AGA
for the State and perused the material
available on record.

13. Smt. Rani (PW-1), is the mother
of deceased Santosh, who is an eye witness
to the incident. She has stated that on the
fateful day, while deceased was repairing
electric wire from the electric pole on
which, some altercation took place between
deceased Santosh and accused Raju.
Accused Raju caught hold the deceased and
Shravan s/o Raju was assaulting him with
knife. After hearing noise of quarrel, she
and her husband Kalyan Singh (PW-2) and
brother-in-law Vijay came there, then
accused Raju and Shravan fled away. She
has further stated that she saw the incident
in the electrical right and she had identified
the accused.

14. Sri Kalyan Singh (PW-2), is the
father of deceased Santosh, who is also an
eye witness to the incident. He has stated
that after hearing noise of quarrel between
his son and accused, he reached to the place
of incident and saw that Raju caught hold
his son and Shravan was assaulting to the
deceased with knife, thereafter, the accused
persons fled away from the spot.

15. In the present case, the incident
took place on 06.03.2008 at 10.30 pm.
There was some hot talks between accused
persons and the deceased and then
appellant has caused injuries to deceased
Santosh with
knife.
After
sustaining
injuries, the injured was taken to hospital
by Smt. Rani (PW-1) and Sri Kalyan Singh
(PW-2), mother and father of the deceased,
wherein doctor declared him dead. Both the
eye-witnesses have duly supported the
prosecution case and have categorically
564 INDIAN LAW REPORTS ALLAHABAD SERIES
stated as to the manner in which the
incident occurred. Eye-witnesses of the
incident, namely, Smt. Rani (PW-1) and Sri
Kalyan Singh (PW-2), mother and father of
the deceased, have been cross-examined at
great length, but except some minor
variations
and
natural
contradictions,
nothing useful to the defence has come out.

16. A close scrutiny of the depositions
of the eye-witnesses, would go to show that
on fateful day, while deceased was
repairing electric wire from electric pole,
some heated altercation took place between
deceased Santosh and the accused persons.
Co-accused Raju caught hold the deceased
and the deceased was assaulted all of a
sudden by the appellant with knife, as a
result of which, he died.

17. Considering all these aspects of
the case, we are of the view that the
complicity of the accused persons in
commission of offence has been duly
proved by the prosecution.

18. Now the next question, which
arises for consideration of this Court is, as
to whether the act of accused-appellant
would fall within the definition of 'murder'
or it would be 'culpable homicide not
amounting to murder'.

19. Before proceeding further, it is
relevant to refer to the provisions of
Section 300 of IPC, which read as under:

"300. Murder.- Except in the
cases
hereinafter
excepted,
culpable
homicide is murder, if the act by which the
death is caused is done with the intention of
causing death, or-

Secondly.- If it is done with the
intention of causing such bodily injury as
the offender knows to be likely to cause the
death of the person to whom the harm is
caused, or -

Thirdly.- If it is done with the
intention of causing bodily injury to any
person and the bodily injury intended to be
inflicted is sufficient in the ordinary course
of nature to cause death, or -

Fourthly.-
If
the
person
committing the act knows that it is so
imminently dangerous that it must, in all
probability, cause death or such bodily
injury as is likely to cause death, and
commits such act without any excuse for
incurring the risk of causing death or such
injury as aforesaid.

Exception 1.- When culpable
homicide
is
not
murder.-Culpable
homicide is not murder if the offender,
whilst deprived of the power of self-control
by grave and sudden provocation, causes
the death of the person who gave the
provocation or causes the death of any
other person by mistake or accident.

The above Exception is subject to
the following provisos:-

First.- That the provocation is not
sought or voluntarily provoked by the
offender as an excuse for killing or doing
harm to any person.

Secondly.- That the provocation
is not given by anything done in obedience
to the law, or by a public servant in the
lawful exercise of the powers of such public
servant.

Thirdly. - That the provocation is
not given by anything done in the lawful
exercise of the right of private defence.

Explanation.-
Whether
the
provocation was grave and sudden enough
to prevent the offence from amounting to
murder is a question of fact.

Exception 2.- Culpable homicide
is not murder if the offender, in the exercise
in good faith of the right of private defence
of person or property, exceeds the power
6 All. Shravan Vs. State
565
given to him by law and causes the death of
the person against whom he is exercising
such
right
of
defence
without
premeditation, and without any intention of
doing more harm than is necessary for the
purpose of such defence.

Exception 3.- Culpable homicide
is not murder if the offender, being a public
servant or aiding a public servant acting
for the advancement of public justice,
exceeds the powers given to him by law,
and causes death by doing an act which he,
in good faith, believes to be lawful and
necessary for the due discharge of his duty
as such public servant and without ill-will
towards the person whose death is caused.

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.

Exception 5.- Culpable homicide
is not murder when the person whose death
is caused, being above the age of eighteen
years, suffers death or takes the risk of
death with his own consent."

Exception 4 to Section 300 of the
IPC applies in the absence of any
premeditation. This is very clear from the
wordings of the Exception itself. The
exception contemplates that the sudden
fight shall start upon the heat of passion on
a sudden quarrel. The fourth exception to
Section 300 IPC covers acts done in a
sudden fight. The said Exception deals with
a case of provocation 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 an 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 could in such cases 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 offenders 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 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
566 INDIAN LAW REPORTS ALLAHABAD SERIES
case, the parties had 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 there was no
premeditation. It must further be shown
that the offender has not taken undue
advantage or acted in a cruel or unusual
manner.
The
expression
"undue
advantage" as used in the provision
means "unfair advantage".

20. Considering all the aspects of
the case, we are of the view that there
was no premeditation on the part of the
accused-appellant to kill the deceased.

21. The Apex Court in State of
Andhara
Pradesh
vs.
Rayavarapu
Punnayya
and
Another1,
while
drawing a distinction between Section
302 and Section 304 of IPC, held as
under:

"12. In the scheme of the Penal
Code, "culpable homicide" is genus and
"murder" its specie. All "murder" is
"culpable homicide" but not vice-versa.
Speaking
generally,
"culpable
homicide" sans "special characteristics
of murder", is "culpable homicide not
amounting to murder". For the purpose
of fixing punishment, proportionate to
the gravity of this generic offence, the
Code
practically
recognises
three
degrees of culpable homicide. The first
is, what may be called, "culpable
homicide of the first degree". This is
the greatest form of culpable homicide,
which is defined in Section 300 as
"murder". The second may be termed as
"culpable
homicide
of
the
second
degree". This is punishable under the
first part of Section 304. Then, there is
"culpable homicide of the third degree".
This is the lowest type of culpable
homicide and the punishment provided
for it is, also, the lowest among the
punishments provided for the three
grades. Culpable homicide of this
degree is punishable under the second
part of Section 304.

21.
From
the
above
conspectus, it emerges that whenever a
court is confronted with the question
whether the offence is "murder" or
"culpable homicide not amounting to
murder", on the facts of a case, it will
be convenient for it to approach the
problem in three stages. The question to
be considered at the first stage would
be, whether the accused has done an act
by doing which he has caused the death
of another. Proof of such causal
connection between the act of the accused and
the death, leads to the second stage for
considering whether that act of the accused
amounts to "culpable homicide" as defined
in Section 299. If the answer to this
question is prima facie found in the
affirmative, the stage for considering the
operation of Section 300 of the Penal Code,
is reached. This is the stage at which the
court should determine whether the facts
proved by the prosecution bring the case
within the ambit of any of the four clauses
of the definition of "murder" contained in
Section 300. If the answer to this question
is in the negative the offence would be
"culpable homicide not amounting to
murder", punishable under the first or the
6 All. Shravan Vs. State
567
second part of Section 304, depending,
respectively, on whether the second or the
third clause of Section 299 is applicable. If
this question is found in the positive, but
the case comes within any of the exceptions
enumerated in Section 300, the offence
would still be "culpable homicide not
amounting to murder", punishable under
the first part of Section 304, of the Penal
Code."

22. In Budhi Singh vs. State of
Himachal Pradesh2, the Supreme Court,
held as under:

18. The doctrine of sudden and
grave provocation is incapable of rigid
construction leading to or stating any
principle of universal application. This will
always have to depend on the facts of a
given case. While applying this principle,
the primary obligation of the court is to
examine from the point of view of a person
of reasonable prudence if there was such
grave and sudden provocation so as to
reasonably conclude that it was possible to
commit the offence of culpable homicide,
and as per the facts, was not a culpable
homicide amounting to murder. An offence
resulting
from
grave
and
sudden
provocation would normally mean that a
person placed in such circumstances could
lose self-control but only temporarily and
that too, in proximity to the time of
provocation. The provocation could be an
act or series of acts done by the deceased
to the accused resulting in inflicting of
injury.

19. Another test that is applied
more often than not is that the behaviour of
the assailant was that of a reasonable
person. A fine distinction has to be kept in
mind
between
sudden
and
grave
provocation resulting in sudden and
temporary loss of self-control and the one
which inspires an actual intention to kill.
Such act should have been done during the
continuation of the state of mind and the
time for such person to kill and reasons to
regain the dominion over the mind. Once
there is premeditated act with the intention
to kill, it will obviously fall beyond the
scope of culpable homicide not amounting
to murder....."

23. In Kikar Singh vs. State of
Rajasthan3, the Apex Court held as under:

"8. The counsel attempted to
bring the case within Exception 4. For its
application all the conditions enumerated
therein must be satisfied. The act must be
committed without premeditation in a
sudden fight in the heat of passion; (2)
upon a sudden quarrel; (3) without the
offender's having taken undue advantage;
(4) and the accused had not acted in a
cruel or unusual manner. Therefore, there
must be a mutual combat or exchanging
blows on each other. And however slight
the first blow, or provocation, every fresh
blow becomes a fresh provocation. The
blood is already heated or warms up at
every subsequent stroke. The voice of
reason is heard on neither side in the heat
of passion. Therefore, it is difficult to
apportion between them respective degrees
of blame with reference to the state of
things at the commencement of the fray but
it must occur as a consequence of a sudden
fight i.e. mutual combat and not one side
track. It matters not what the cause of the
quarrel is, whether real or imaginary, or
who draws or strikes first. The strike of the
blow must be without any intention to kill
or seriously injure the other. If two men
start fighting and one of them is unarmed
while the other uses a deadly weapon, the
one who uses such weapon must be held to
have taken an undue advantage denying
568 INDIAN LAW REPORTS ALLAHABAD SERIES
him the entitlement to Exception 4. True the
number of wounds is not the criterion, but
the position of the accused and the
deceased with regard to their arms used,
the manner of combat must be kept in mind
when applying Exception 4. When the
deceased was not armed but the accused
was and caused injuries to the deceased
with fatal results, the Exception 4 engrafted
to Section 300 is excepted and the offences
committed would be one of murder.

9. The occasion for sudden
quarrel must not only be sudden but the
party assaulted must be on an equal footing
in point of defence, at least at the onset.
This is specially so where the attack is
made with dangerous weapons. 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 Section 302.
Equally for attracting Exception 4 it is
necessary that blows should be exchanged
even if they do not all find their target.
Even if the fight is unpremeditated and
sudden, yet if the instrument or manner of
retaliation be greatly disproportionate to
the offence given, and cruel and dangerous
in its nature, the accused cannot be
protected under Exception 4...."

24. All the above three cases were
considered by the Apex Court in Surain
Singh vs. The State of Punjab4 and
ultimately, it has been held by the Apex
Court in that particular case, that the
accused was liable to be convicted under
Section 304 Part II of IPC and not under
Section 302 of IPC.

25. As a matter of fact, thus, the
case in hand is of a sudden fight without
any premeditation or overreacted while
committing the crime in question, and
without there being any intention on the
part of the appellant and, accordingly,
Exception 4 to Section 300 of IPC would
be
attracted
in
the
facts
and
circumstances of the case.

26. In totality of the facts
available, the crime committed by the
accused-appellant, as such, does not
travel beyond an offence described
under Section 304 Part II of Indian
Penal Code.

27. In view of the above, we are of the
considered opinion that the trial Court has
erred in law, while convicting the accused
appellant under Section 302 of IPC. The
judgment
and
order
impugned
dated
09.09.2010, hence, is set aside. The accused
appellant is held guilty for commission of an
offence punishable under Section 304 Part
II of Indian Penal Code.

28. So far as sentence part is
concerned,
the
accused-appellant
has
already remained in jail for about 11 years
and 11 months. According to us, ends of
justice would be served, if his sentence is
reduced to the period already undergone by
him order accordingly. As the appellant is
reported to be in jail, he be set free
forthwith, if not required in any other case.

29.

However,
considering
the
provisions of Section 357 of Cr.P.C. and
judgment of the Apex Court in Ankush
Shivaji
Gaikwad
vs.
State
of
Maharashtra5, we are of the view that the
accused-appellant is liable to compensate
Smt. Rani (PW-1) and Sri Kalyan Singh
(PW-2), mother and father of the deceased
by paying
a
total
compensation
of
Rs.50,000/-
(Fifty
Thousands).
Accordingly, accused-appellant is directed
6 All. Vijay Kumar Pandey Vs. Union of India & Ors.
569
to deposit Rs.50,000/- within a period of
three months, after being released from jail
before the trial court and, in turn, the trial
court shall disburse the said amount to Smt.
Rani (PW-1) and Sri Kalyan Singh (PW-2),
mother
and
father
of
the
deceased
respectively. In case, the appellant fails to
deposit the said compensation amount
within the stipulated time, the court below
shall proceed against him in the light of
judgment of the Apex Court reported in
Kumaran vs. State of Kerala and another,
(2017) 7 SCC 471.

30. The appeal is partly allowed.

31. Let a copy of this judgment be
sent to the concerned trial Court forthwith
for compliance.
----------

(2020)06ILR A569
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

Crl. Misc. Writ Petition No. - 10661 of 2016

Vijay Kumar Pandey ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Neeraj Pandey, Sri Raj Kumar Sharma

Counsel for the Respondents:
A.G.A.,
A.S.G.I.2016/0057,
Sri
R.P.S.
Chauhan

Section 197 (1) Cr.P.C.-Constitutional validity
of section 197 (1) Cr.P.C. challenged-as it is
discriminatory by excluding such public servants
-who are not removable with sanction of State
Government
-Petitioner-Deputy
Jailor-be
appointed or removed without sanction of State
Government-section 197 Cr.P.C. purpose-State
also concerned with such offence by public
servants-not discriminatory-Mandamus to State
for ammending section 197 Cr.P.C. -cannot be
issued-being of legislative character.

Writ Petition dismissed. (E-9)

List of cases cited:-

1.State of Orissa through Kumar Raghvendra
Singh and Ors. vs. Ganesh Chandra Jew,
2004(8) SCC 40;

2. D.T. Virupakshappa vs. C. Subhash, 2015(12)
SCC 231;

3. R.S. Nayak vs. A.R. Antulay, AIR 1984 SC
684;

4. Ram Krishna Dalmia vs. Shri Justice S.R.
Tendolkar and Ors., 1959 SCR 279;

5.The State of West Bengal vs. Anwar Ali
Sarkar, 1952 SCR 284;

6. Western M.P. Electric Power and Supply
Company Ltd. vs. State of U.P. and Anr.,
1969(3) SCR 865

7.
Hanumant
Shrinivas
Kulkarni
Versus
Emperor, (31) 1930 Crl.L.J. 353

8. E Versus G. Sadagopan, 1953 Crl.L.J.1929

9.Indu Bhushan Chatterjee Versus State, AIR
1955 Cal.430

10.Gurbachan Singh Versus State, AIR 1970
Delhi 102

11. R. Bala Krishna Pillai Vs. State of Kerala,
(1996) 1 SCC 478

12.P.V. Narsimha Rao Versus The State, AIR
1998 SC 2120

13.Gauri Shankar Prasad Vs. State of Bihar,
2000 SCC (Cri) 872