KULESH MONDAL v. THE STATE OF WEST BENGAL

Citation: [2007] 9 S.C.R. 799

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, D.K. JAIN

Case summary

KULESH MONDAL v. THE STATE OF WEST BENGAL.pdf

Judgment text

KULESH MONDAL v. THE STATE OF WEST BENGAL SEPTEMBER 7, 2007 [DR. ARIJIT PASAYAT AND D. K. JAIN,JJ. ) Penal Code, I860: s. 300, Exception 4-Applicability of- Held: For application ofException 4, it is not sz! fficient to show that ther -· at any rate in the arguments of counsel. " 8. Again in Masalti and Ors. v. The State ofU. P. , AIR (1965) SC 202 KULESHMONDALv. ST<'-TE[PASAYAT,J. ] 805 this Court observed: (p. 209-210 para 14): "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses....... The mechanical rejection ofsuch evidence on the sole ground that it is partisan would invariably lead to failure ofjustice. No hard and fast rule can be laid down as to how much evidence should be appreciated.

Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. " 9. To the same effect is the decision in State ofPunjab v.. Jagir Singh, AIR (1973) SC 2407 and Lehna v. State ofHaryana, [2002] 3 SCC 76. As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. , AIR (198! ) SC 1390, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility ofa party's case, material discrepancies do so.

These aspects were highlighted in Krishna Mochi and Ors. v. State ofBihar etc. , JT (2002) 4 SC 186. l0. The residuary plea relates to the applicability of Exception 4 of Section 300 IPC, as it is contended that the incident took place in course of a sudden quarrel. · 11. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 12. The Fourth Exception of Section 300 IPC covers acts done in sudden fight. The said exception deals with a case of prosecution not covered 0 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 I 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 I; 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 I.

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 aggravatea 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 ifdeath 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 que'Stion 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 cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. 13. 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.

Ifthe 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. In Kikar Singh v. State ofRajasthan, AIR (1993) SC 2426 it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that giving the blows with the knowledge that they were likely to cause death, he had taken undue advantage. 14. Considering the background facts in the light of the principle set out above, the inevitable conclusion is that Exception 4 to Section 300 IPC is applicable and the offence is relatable to Section 304 Part I and not Section 302 IPC. That being, so the conviction is altered. Custodial sentence of I0 years would meet the ends of justice. 15. The appeal is allowed to the aforesaid extent. B. B. B. Appeal partly allowed.