A.K. PATNAIK, J.
1. 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 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, 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 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 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 – 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 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 Cafe, Musheerabad. The disputes were going on for 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 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.