REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     39        OF 2009 (Arising out of SLP (Crl.) No. 6109 of 2008)

Buddu Khan ….Appellant  

Versus

State of Uttarakhand  ….Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

2. Challenge in this appeal is to the judgment of a Division Bench of the

Uttarakhand  High  Court   upholding  the  conviction  of  the  appellant  for

offence punishable under Section 302 of the Indian Penal Code, 1860 (in

short the ‘IPC’).

3. Background facts in a nutshell are as follows:

On 18.9.1993 at about 8.00 p.m. in Village Fauji Math Kota within

the  limits  of  P.S.  Rudrapur  (now  part  of  District  Udham Singh  Nagar)

accused  appellant  Buddu  Khan  and  deceased  Dinesh  Oli  were  sitting

together on a cot. Girish Chandra Chaturvedi (PW-1) was also present there.

In his presence Buddu Khan protested to the deceased as to why did he bite

on  his  cheek  in  the  presence  of  his  wife.  Thereafter,  Girish  Chandra

Chaturvedi had left the place. When PW-1 along with Tejpal (PW-5) and Jai

Prakash again came towards near the office of Co-operative Society where

earlier  aforesaid  incident  had  taken  place,  they saw Buddu  Khan hitting

with a brick on the head of Dinesh Oli and was saying that he will give the

deceased  taste  of  biting  the  cheek.  The  three  eye  witnesses  rushed  and

caught hold of appellant.  However, he escaped after freeing himself. The

report  of  the  incident  was  lodged  by  Tejpal  Singh  (PW-5)  with  P.S.

Rudrapur on the very day i.e. on 18.9.1993 at about 9.30 p.m. after getting it

scribed from one Dharampal. Constable Ved Pal (PW-3) who received the

First Information Report prepared check report and made necessary entry in

the  general  diary,  a  copy  of  which  is  Ext.A-7.  The  crime  was  initially

investigated by Sub-Inspector Surendra Singh Dagri (PW-7). He went to the

spot and got prepared inquest report on 19.9.1993 at 2.00 a.m. after taking

2

the dead body of the deceased in his possession. He also prepared site plan.

The  police  also  got  prepared  other  necessary papers,  sketch  of  the  dead

body, police form No.13 and letter to the Chief Medical Officer, requesting

him for getting the autopsy done. Constable Pramod Kumar (PW-4) took the

dead  body in  a  sealed  condition  for  post  mortem examination  to  Soban

Singh Jina Hospital, Haldwani and handed it over for the purpose. Dr. A.S.

Singh  (PW-2)  conducted  the  post  mortem examination  on  19.9.1993  at

about  1.00  p.m.  on  the  dead  body  of  deceased  and  prepared  report.  He

opined that cause of death was ante mortem injuries on the skull bone and

effusion  of  blood  into  the  brain  matter.  Subsequently,  investigation  was

taken  over  by  Prem  Singh  Ahlawat  (PW-6),  Inspector  who  after

interrogation of the witnesses and completing the investigation submitted

charge sheet to the Magistrate concerned.  Case was committed to the Court

of Sessions.

The trial Court placed reliance on the evidence of the eye witnesses

PWs 1 and 5. In appeal, the stand was that there was no pre-meditation. On

the contrary, because the deceased had bitten on the cheek of appellant in

the presence of his wife, there was a quarrel  and in course of which the

appellant picked up a brick and hit it on the head and one blow was given.

3

The High Court did not find substance in the plea that Section 302 has no

application.  

4. In support of the appeal, learned counsel for the appellant submitted

that  the  background  facts  clearly  established  that  Section  302  has  no

application.  

5. Learned counsel for the respondent-State on the other hand supported

the judgment.  

6. For bringing in operation of Exception 4 to Section 300 IPC 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.

7. The  Fourth  Exception  of  Section  300,  IPC  covers  acts  done  in  a

sudden  fight.   The  said  exception  deals  with  a  case  of  prosecution  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

4

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 reasons 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 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  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

5

caused  (a)  without  premeditation,  (b)  in  a  sudden  fight;  (c)  without  the

offender’s  having taken undue advantage or acting 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 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 cruel or unusual manner.  The

expression  ‘undue  advantage’  as  used  in  the  provision  means  ‘unfair

advantage’.  These aspects have been highlighted in Dhirajbhai Gorakhbhai

Nayak      v. State  of Gujrat   (2003 (5) Supreme 223], Parkash Chand v. State

6

of H.P.  (2004 (11) SCC 381) and Byvarapu Raju v. State of A.P. and Anr.

(2007 (11) SCC 218)   

8. Considering the background facts of the case we are of the view that

Exception 4 to Section 300 applies to the facts of the case. The appropriate

conviction would be under Section 304 Part I IPC. Custodial sentence of 10

years would meet the ends of justice.  

9. The appeal is allowed to the aforesaid extent.  

………………………………J. (Dr. ARIJIT PASAYAT)

………………………….…...J. (ASOK KUMAR GANGULY)

New Delhi, January 12, 2009  

7