REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.             OF 2008 (Arising out of SLP (Crl.) No. 2270 of 2008)

A. Maharaja   ….Appellant

Versus

State of Tamil Nadu  ….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

Madras High Court upholding the conviction of the appellant for offences

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

IPC') and sentenced him to undergo imprisonment for life and also to pay a

fine  of  Rs.1,000/-  with  default  stipulations,  as  recorded by the  Principal

Sessions Judge, Madurai, in S.C. No.189 of 2005.

3. The prosecution version, in a nutshell, is as follows.

PW-1 is the wife of PW-4. The accused and PW-4 are the sons of

Alagu Ambalam (hereinafter referred to as the ‘deceased’). PW-2 is the son

of  PW-1.  Alagu  Ambalam  had  certain  immovable  properties  which  he

partitioned 10 years before the occurrence, and he regained a piece of land

namely 10 cents, which is a poramboke, for his livelihood. The accused was

insisting  him to  give that  land  also.  There arose  a  civil  dispute  between

them. It also ended in favour of Alagu Ambalam. On the day of occurrence

i.e, 26.05.2003 at about 7.00 A.M., PW-1 was going to the garden to pluck

vegetables. At that time, her father-in-law, the said Alagu Ambalam,  was

cutting Karuvela trees. He was having a spade and aruval in hand. At that

time, the accused came there and questioned how he could cut the trees, and

following  the  same,  there  was  a  wordy  duel.  Immediately,  the  accused

snatched the aruval and cut him on the neck and shoulder indiscriminately.

PW-1 on seeing this, raised alarm, and immediately, the accused fled away

from  the  place  of  occurrence.  The  said  Alagu  Ambalam  met  his

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instantaneous death. PW-1 proceeded to the Police Station, where, the sub-

Inspector of Police (PW-11),  was present. PW-1 gave a report (Ex.P1), on

the strength of  which a case came to be registered in Crime No.81/2003

under Section 302 IPC. The first  information report, Ex.P-12, along with

Ex.P1 was despatched to the Magistrates’ Court.

The Inspector of Police (PW-12), on receipt of the copy of the FIR,

took up investigation,  proceeded to the spot,  made an inspection in  the

presence of witnesses and prepared an observation mahazar, Ex.P-4, and a

rough sketch, Ex.P-13. Then, he conducted inquest on the dead body of

Alagu  Ambalam  in  the  presence  of  witnesses  and  panchayatdars  and

prepared  an  inquest  report,  Ex.P-14.  The  dead  body  was sent  to  the

Government Hospital along with a requisition, Ex.P-2, for the purpose of

autopsy.

The Assistant Surgeon (PW-6), attached to the Government Hospital,

Melur,  on receipt  of  the said requisition,  conducted  autopsy on the  dead

body of Alagu Ambalam and found 7 cut injuries. The doctor gave a post-

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mortem certificate, Ex.P-3, with her opinion that the deceased would appear

to have died of hemorrhage and shock due to injuries to major vessels.

Pending  the  investigation,  the  Investigating  Officer  arrested  the

accused on 27.05.2003. He volunteered to  give a confessional statement,

which  was recorded  by  the  Investigator.  The  admissible  part  of  the

confession was marked as Ex. P-6, pursuant to which he produced M.O.-1,

aruval  and  M.O.-4,  Shirt,  which  have  been  recovered  under  a  mahazar,

Ex.P-7. The accused was sent for judicial remand. All the material objects

recovered from the place of occurrence and from the dead body and M.Os.

l and 4, recovered from the accused, were subjected to chemical analysis by

the Forensic Sciences Department,  which resulted in two reports namely

Ex.P-10, the Chemical Analyst's report and Ex.P-11, the Serologist's report.

On completion of investigation, the Investigator filed the final report.

Charges were framed. The accused pleaded innocence.  

Twelve witnesses were examined to further the prosecution version.

The accused, in his examination under Section 313 of the Code of Criminal

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Procedure,  1908 (in  short  'the  Code')  submitted  that  he  has  been  falsely

implicated and in any event, there was a wordy duel before the occurrence

in which the appellant had purportedly snatched the weapon from the hands

of  the  deceased  and,  therefore,  Section  302 IPC has  no application.  The

Trial Court did not accept the plea and placing reliance on the evidence of

the  eye-witnesses, PWs-l and 2, recorded the conviction and sentence, as

noted above.

4. The plea taken before the Trial Court  was reiterated by the accused

persons before the High Court. By the impugned judgment, the High Court

did not find any substance in the plea and dismissed the appeal.

5. The stand before the High Court was reiterated by learned counsel for

the appellant.

6. The  substantive  plea  relates  to  the  applicability  of  Exception  4  of

Section 300 IPC.

7. 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

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upon a sudden quarrel without the offender having taken undue advantage

and not having acted in a cruel or unusual manner.

8. 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

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 reason and urges them to do

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

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'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  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

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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 unsual manner.  The expression ‘undue advantage’ as used

in the provision means ‘unfair advantage’.      

9. Where the offender takes undue advantage or has acted in a crule 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

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advantage has been taken.  In Kikar Singh v. State of Rajasthan (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 using the

blows with the knowledge that they were likely to cause death, he had taken

undue advantage.   

10. These aspects have been recently highlighted in Iqbal Singh v. State

of Punjab (2008 911) SCALE 599).

11. From the background facts as considered in the light of the evidence,

the  inevitable  conclusion  is  that  the  occurrence  took  place  in  course  of

sudden quarrel.  Therefore, Exception 4 to Section 300 IPC applies.  The

appropriate conviction would be under Section 304 Part-I  IPC. Custodial

sentence of 10 years would meet the ends of justice.   

12. The appeal is allowed to the aforesaid extent.

………….…… ….........................J.

(Dr. ARIJIT PASAYAT)              

         ………….……

….........................J.          (Dr. MUKUNDAKAM SHARMA)

New Delhi, November 14, 2008

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