IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                OF 2008 (Arising out of SLP (Crl.) No. 111 of 2003)

Kashi Prashad  ...Appellant  

versus

State of Uttar Pradesh ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

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

Bench  of  the  Allahabad  High  Court  holding  the  appellant

guilty  of  offence  punishable  under  Section  302  read  with

Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’)

and Section  323 read with Section 34 IPC.  

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2. The appellant and his father Baldu had filed the appeal

before  the  High  Court  questioning  the  correctness  of  the

conviction and imposition of sentence as done by the learned

Sessions Judge, Hamirpur in Sessions Trial No.287 of 1980.

The appellant’s father Baldu died during the pendency of the

appeal before the High Court and, therefore, the appeal stood

abated so far as he is concerned.   

3. The  prosecution  version  as  unfolded  during  trial  is

essentially as follows:

Kali  Charan,  first  informant  (PW-1),  his  father  Lachhi

Ram (hereinafter referred to as the ‘deceased’) and his mother

Smt. Ram Kunwar were returning after ploughing the land of

Chandra Bhan with their bullocks on 28.7.1980 through the

village pathway which was running from western to eastern

side as shown in the site  plan. The land of  Pandit  Laxman

Prasad resident of village Mas Gaon is towards the northern

side of the village pathway. This land was with the accused

persons on share crop basis. On account of existence of mud

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on  the  village  pathway,  the  bullocks  of  Kali  Charan,  first

informant strayed into the field of accused Kashi Prasad. The

accused  persons  became  agitated  on  account  of  damage

caused by the bullocks in their field and consequently they

abused Kali Charan and his father Lachhi Ram. Latter took

exception to it and asked the accused to refrain from abusing.

Accused Kashi Prasad dealt the deceased Lachhi Ram with a

blow  by  a  spear.  Lachhi  Ram  fell  on  the  ground.  Baldu

mounted  an  assault  on  the  deceased  with  his  lathi.  Kali

Charan  also  received  lathi  injuries.  Kali  Charan  who  was

carrying a Khaulia used the same in defence of his father, as a

result  of  which  accused  Kashi  Prasad  and  Baldu  received

injuries.  After  making  necessary  arrangement,  Lachhi  Ram

was put in a bullock cart but he took his last breath on way to

police  station  Kharela.  The  dead  body  was  taken  to  police

station where a written first information report, Exh.ka-2 was

lodged  by  Kali  Charan.   The  investigation was  undertaken.

The  Autopsy  Surgeon  Dr.  G.S.  Pandey  (PW-5)  found  the

following ante mortem injuries on the body of the deceased

Lachhi Ram:

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1. stab wound 1 cm x 1cm in front of abdomen 4 cm

from  ambilicus  at  its  level  and  right  side.  Skin,

muscles,  peritoneum,  loops  of  large  intestine

pierces and finally entering the right side of kidney,

which is done in pieces. There is plenty of blood and

blood  clots  seen  in  peritoneal  cavity.  Contents  of

large intestines are mixed in pool of blood in cavity.

2. Contusion  7cm  x  2cm  in  right  side  forearm  in

postero  lateral  aspect  the  underlying  radio  ulna

fractured at lower 1/3rd.

3. Lacerated wound 5cm x 1cm x bone deep in right

parietal prominence direction front to back.

4. Contusion 5cm x 1 ½ cm in right side of forehead at

upper border front to back direction.

5. abraded contusion 6 ½ cm x 4 cm on right side of

chest in thoracic region in anterior auxillary line in

7th to 10th I.C.S.

6. Contusion 4 ½ cm x 2cm in left shoulder joint at

acromian process in laterial aspect.  

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On  the  person  of  Kali  Charan  who  was  medically

examined  on  29.7.1980  by  Dr.  M.Y.  Qureshi  (PW-2)

following nine injuries were found:  

1. contused wound 2 cm x ½ cm on the left side of

head 7 cm above ear.

2. Abrasion 6cm x 2cm on the right arm upper  half

outside.

3. Swelling 7 cm x 3 cm over the right thigh.

4. Abrasion 5.5 cm x 2cm on the right arm upper half

front.

5. Abraded  contusion  5  cm  x  3  cm  just  above  the

shoulder blade.

6. Swelling 7cm x 2cm on the left index finger dorsal

surface.

7. Selling  2cm  x  1  cm  over  the  left  thumb  distal

phalangal joint dorsum.  

8. Abraded contusion 5 cm x 2cm, 2cm outer to left

right nipple.

9. Abraded contusion 5 cm x 2cm on the left forearm

half.

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The accused Kashi Prasad and Baldu who were taken in

custody were medically  examined by Dr. S.N. Dixit,  (D.W.1)

Assistant  Medical  Officer,  District  Jail,  Hamirpur,  Kashi

Prasad received the following two injuries:

1. Contusion  3  cm  x  1cm  on  left  wrist  joint  radial

aspect.

2. Contusion 2 cm x 1 cm on left arm middle part.

Baldu had received following three injuries:

1. Dressed wound 1/2cm x 1/2cm x bone deep on the

left fore arm 3 cm above left wrist joint.

2. Dressed wound 1 2/2 cm x ½ cm x muscle deep on

the left hand dorsum 2 cm medical to web to left

thumb.  

3. Lacerated dressed wound 2cm x 1cm x muscle deep

on left hand just on base on index finger.

The injuries  received  by Kashi Prasad and Baldu were

termed to be simple having been caused by some blunt object.

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At the trial, Kali Charan (PW-1), Jhalli (PW-3) and Sukh

Lal  (PW-4)  were  examined  as  eye-witnesses  besides  other

formal witnesses.    

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The  accused  persons  took  the  plea  of  self  defence.

According to Kali  Prasad,  Kali  Charan and deceased-Lachhi

Ram had deliberately  driven  their  bullocks  into  field  of  the

accused and on his intervention Lachhi Ram and Kali Charan

began to abuse  him and threatened  him. He further stated

that Kali Charan caught hold of him and when he managed to

release himself from the clutches of Kali Charan, the deceased

began to assault him with lathi and Kali Charan armed with a

Khaulia rushed at him and thereupon his father Baldu rushed

to  save  him  and  thereafter  Kali  Charan  began  to  mount

assault upon Baldu with Khaulia.  Kashi Prasad further stated

that he used spear to defend himself and his father Baldu and

that  he  and  Baldu  both  received  injuries  and  they  were

medically  examined  in  the  District  Jail,  Hamirpur.  The

accused Baldu took similar plea. The accused Maha Prasad

pleaded alibi.  

The  trial  Court  on  consideration  of  the  evidence  on

record came to hold that the plea of self defence raised by the

accused was not made out and it  was a case  of murder of

deceased.  The accused also caused injuries on the informant.

The High Court  found no substance in the plea  of accused

appellants and dismissed the appeal.  

4. Learned counsel for the appellant submitted that even if

the  prosecution  version  is  accepted  in  toto,  the  appellant

cannot  be  convicted  for  offence  under  Section  302  IPC.  A

single  blow  was  given  in  course  of  a  sudden  quarrel.

Therefore, exception 4 to Section 300 applies.  

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

hand supported the judgments of the trial Court and the High

Court.   

6. It appears that the bullocks of the informant Kali Charan

strayed into the field of Chandra Bhan. On account of rainy

season there was mud in the field with the result that four

bullocks  of  the  informant  entered  the  abutting  field  of  the

accused.  The  evidence  on  record  shows  that  there  was  no

pique or enmity between the parties prior to the incident in

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question.   The  appellant  and  his  father  Baldu  became

hypersensitive and felt hurt and quarrel thereafter started and

in course of the quarrel a blow was given by the appellant.   

7. The  only  question  is  applicability  of  Exception  4  of

Section 300 IPC.

8. 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 upon a sudden quarrel without the

offender having taken undue advantage and not having acted

in a cruel or unusual manner.

9. 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 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

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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 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 no 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’.     

10. Considering  the  factual  scenario  as  projected  by  the

prosecution,  the  proper  conviction  would  be  under  Section

304 Part I IPC. Custodial sentence of 10 years would meet the

ends of justice.    

11. The appeal is allowed to the aforesaid extent.  

………..………………………….J. (Dr. ARIJIT PASAYAT)

……………………………………J. (P. SATHASIVAM)

……………………………………J. (Dr. MUKUNDARAM SHARMA)

New Delhi,

July 16, 2008

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