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Showing contexts for: sec 300, exception 4 in Annamalai vs Inspector Of Police on 17 October, 2006Matching Fragments
23. As ruled by the Apex Court in Dhirajbhai Gorakhbhai Nayak v. State of Gujarat (2003 (9) SCC 322), the help of Exception 4 to Section 300 I.P.C. can be invoked if the 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.
It is also further held, whether the incident would have taken place due to heat of passion, it must be seen that there must be no time for the passion to cool down. On the other hand, if it is shown by facts, that there was a chance to come to the conclusion that the heat of passion should have come down or diminished or cool down on its own, then invoking exception (4) to Section 300 I.P.C. may not be possible and desirable. Further, there must have been a fight between the parties involving more than one person minimum being two persons to have a fight. The same position is reiterated in plethora of decisions rendered by the Apex Court including Sachchey Lal Tiwari v. State of U.P. (2004 11 SCC 410).
24. In order to apply the above principle or to bring the offence under Section 300 exception (4) I.P.C, the assault committed by the person, who claims such benefit, should not come within the meaning of "acted in a cruel or unusual manner" also. How this is to be decided is declared by the Apex Court in Babulal Bhagwan Khandare v. State of Maharashtra (2005 10 SCC 404), wherein their Lordships of the Apex Court have held as follows:
"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. In the instant case blows on vital parts of unarmed persons were given with brutality. The abdomens of two deceased persons were ripped open and internal organs had come out. In view of the aforesaid factual position, Exception 4 to Section 300 I.P.C. has been rightly held to be inapplicable.
VERNACULAT [TAMIL] PORTION DELETED It is the case of P.W.1 also, at the earliest point of time when she preferred Ex.P.1, wherein also it is stated, VERNACULAT [TAMIL] PORTION DELETED As rightly submitted by Mr.Muniratna Naidu, the learned counsel appearing for the second accused, if both the accused had the intention to commit the murder of Krishnamurty, or had the intention to cause bodily injury, which are likely to cause death, to their knowledge, certainly there would not have been any possibility for them to say so. The very fact that the accused have informed to P.Ws.1 & 2, that 'Krishnamurthy will come and tell' would suggest undoubtedly and unquestionably also, that they have no intention to commit murder of Krishnamurthy or no intention to immobilise him also, and if at all, they should have thought of teaching a lesson to the deceased for the act done by him in the presence of others, to the first accused viz., pulling the dothi, thereby making him undress, leaving him with Jatti creating disgrace. For these reasons, we are of the considered view that the accused had no intention to commit murder of Krishnamurthy. Thus concluding, we have to see further, the act of the accused, whether it would attract exception (4) to Section 300 I.P.C.
28. The assault by the deceased and the assault by the accused had taken place at different time, according to the prosecution. Though there is some evidence for this, if true, certainly the first accused would not have come to the scene of crime, with Jatti. Only from the scene of crime, as spoken by the investigating officer, the dothi belongs to the first accused viz., M.O.8 was recovered under Ex.P.3. This would suggest, in continuation of the first attack by the deceased, the second incident viz., attack by the accused could have taken place, thereby showing there was no time for the accused to cool down, that too considering the words uttered by the deceased, as spoken by P.W.3. P.W.3 would state, that the first accused questioned the conduct of the deceased as if he had disgraced him in the presence of others and unable to bear the same, the deceased fisted Annamalai followed by fight between the first accused and the deceased. Because of this act alone, A-2 was brought to the scene of crime and A-2 on seeing his brother was assaulted, unable to tolerate the same should have attacked the deceased only due to heat of passion, preceded by sudden fight, where filthy language also appears to have been used, thereby brining the act of the accused within the four walls of the exception (4) to Section 300 I.P.C.