VIJENDER KUMAR @ VIJAY v.

STATE OF DELHI (Criminal Appeal No. 2093 of 2009)

APRIL 28, 2010 [Harjit Singh Bedi and C.K. Prasad, JJ.]

2010 (5) SCR 368

The following Order of the Court was delivered

O R D E R  

1. In the light of the limited notice that had been issued by this Court with regard  

to the nature of the offence on 29th July, 2009, only the bare facts pertaining to the  

case are necessary.

2.  Yogesh,  the  deceased  was  employed  as  a  Helper  in  a  bus  owned  by  the  

appellant’s father. He was suspected of misappropriating a part of the fare that was  

being collected by him from passengers. On the 9th of April, 2002, when the bus was  

parked at the Karampura bus terminal, Delhi, the appellant questioned the deceased  

to find out if a part of the fare had been withheld by him, but the deceased answered  

in  the  negative.  The  appellant,  however,  remained  unconvinced.  He,  therefore,  

subjected  the  deceased to  a  personal  search which resulted in the recovery of  an  

amount of Rs.100/- from his person. The appellant got furious and started beating the  

deceased. The deceased protested whereupon the appellant brought a knife from the  

boot  of  his  scooter  parked  nearby  and  caused  one  injury  with  the  knife  in  the  

abdomen of the deceased. The bus crew and the passengers advised the appellant to  

remove  the  deceased,  who  was  then  in  a  critical  condition,  to  the  hospital.  The  

appellant thereupon assisted by one, Kanhaiya took the injured on a two-wheeler to a  

private clinic but he was advised to take him to a hospital. The appellant, accordingly,  

took the injured to the ESI Hospital and got him admitted at that place. The appellant  

also informed the attending doctor that he had found the injured lying unconscious on  

the roadside and as a good Samaritan had brought him to the hospital after having

picked him from there. The Duty Constable at the ESI Hospital informed the police  

station regarding the admission of the injured on which Sub Inspector D.P. Kajala  

reached the hospital and found that the injured was unfit to make a statement. A case  

under Section 307 of the IPC came to be registered against unknown persons. Yogesh  

died later that day in the ESI Hospital and the case was modified to one under Section  

302 of the IPC. The trial court found that all the eye witnesses had not supported the  

prosecution but relying on the circumstantial evidence convicted the accused for an  

offence  punishable  under  Section  302  of  the  IPC and  sentenced  him to  undergo  

imprisonment for life. An appeal taken to the High Court was also dismissed.  

3.  The present  appeal  by way of special  leave is  limited to the nature of the  

offence only on the understanding that as per the case of the appellant the case would  

fall under Exception 4 to Section 300 of the IPC.  

4. Mr. Sanjiv Bhatnagar, the learned counsel for the appellant has very candidly  

stated that in view of the limited notice it was not open to him to argue the matter  

seeking the acquittal of the appellant. He has, accordingly, submitted that taking the  

prosecution story as it is, it was clear that the matter would fall under Exception 4 of  

Section 300 of the Indian Penal Code as an outcome of a sudden quarrel. He has  

pointed out that only one injury of small dimensions had been caused by the appellant  

to the deceased and that too in the abdomen and as the appellant had himself taken  

the deceased to the hospital, an inference could be drawn that there was no intention  

to kill the deceased. This plea has been strongly controverted by Mr. Ashok Bhan the  

learned counsel for the respondent State of Delhi.  

5. We have examined the arguments raised by the learned counsel for the parties  

very carefully. The sine quo non for the application of an Exception to Section 300  

always  is  that  it  is  a  case  of  murder  but  the  accused  claims  the  benefit  of  the  

Exception to bring it out of that Section and to make it a case of culpable homicide  

not amounting to murder. We must, therefore, assume that this would be a case of  

murder and it is for the accused to show the applicability of the Exception. Exception  

4 reads as under

“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.”  

A perusal of the provision would reveal that four conditions must be satisfied to bring  

the matter within Exception 4:  

(i) it was a sudden fight;  

(ii) there was no premeditation;  

(iii) the act was done in the heat of passion ; and; that  

(iv) the  assailant  had  not  taken  any  undue  advantage  or  acted  in  a  cruel  

manner.  

6. We are of the opinion that the facts, as have been given by us above, do not  

justify the applicability of Exception 4. Admittedly there was no pre-meditation in the  

incident. The second requirement of a sudden fight is however missing. The facts  

show that there was no sudden quarrel and it was a unilateral act on the part of the  

appellant  as  he  lost  his  temper  as  he  suspected  the  deceased  of  having  

misappropriated the fare that he had been collecting. The deceased also had no role to  

play.  We  also  see  that  the  appellant  had  taken  undue  advantage  of  his  position  

inasmuch as that he had run to the scooter opened the boot, taken out a knife and  

caused one injury on the person of the deceased who was a young, unarmed boy. It  

was, therefore, also a clear case where the appellant had taken undue advantage of his  

position. It is also well settled that the number of injuries caused in such a case is not  

conclusive in determining the nature of the offence, but what has to be primarily seen  

are the circumstances preceding the incident and not exclusively during the incident.  

We are,  therefore, of the opinion that the case of the appellant cannot fall  within  

Exception 4.  

7. We, accordingly, dismiss the appeal.