REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    697             OF 2009 (Arising out of SLP (Crl.) No. 3483 of 2008)

Posuram Deshmukh    ..Appellant

Versus

State of Chhattisgarh  ..Respondent

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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 Chhattisgarh High Court  upholding the conviction of the appellant for  

offence punishable under Section 302 read with Section 34 of the Indian  

Penal Code, 1860 ( in short the ‘IPC’). Four persons faced trial for alleged  

commission of the aforesaid offence. Out of them two were found guilty by  

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Special Judge & Additional Sessions Judge, Durg. Co-accused Puranlal and  

Prahlad were acquitted.  

3. Prosecution version in a nutshell is as follows:

On 19-9-2000 Hiralal (hereinafter referred to as the ‘deceased’) along  

with Dhaneshwari (PW-1) went to his agricultural field at about 10 a.m. for  

blocking  the  water  course.  When  Hiralal  and  Dhaneshwari  were  busy  

blocking the water course, accused Badku @ Komal and Posu came near  

Hiralal and asked Hiralal not to block the water course, on which. Hiralal  

said that if he will not block the water course, then water will not come to  

his field and his field will become dry. On that, some altercation took place  

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between them. At that time accused Posu was carrying Chatwar (a square  

iron plate fitted at the one end of the stick) accused Badku was carrying  

lathi.  Both  of  them  started  attacking  with  those  weapons.  When  

Dhaneshwari,  daughter-in-law  of  Hiralal  came  to  intervene,  the  accused  

persons pushed her as a result  of which her glass  bangles broke and she  

sustained abrasions. Blood started oozing out of the injuries sustained by  

Hiralal. He fell down on the field. The accused persons fled from the scene  

of occurrence. Dhaneshwari went to the village and informed her sister-in-

law  Bhanbai  and  the  villagers.  She  informed  her  brother-in-law  also.  

Thereafter, she along with her brother-in-law took Hiralal to the Out Post  

Anjora, P.S.  Pulgaon. She lodged a report Ex.P/1. When Hiralal was being  

taken for examination to the Government Hospital, Durg he succumbed to  

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the injuries on the way. Certificate Ex.P/18 was given by the doctor  and  

based on that  intimation Ex.P/30 was written. Based on the report Ex.P/1  

Police Station, Pulgaon registered FIR Ex.P/31.

During the investigation accused Badku gave memorandum Ex.P/8,  

in pursuance of that he get recovered bamboo club under Ex.P/10. Accused  

Posu gave memorandum Ex.P/9 in pursuance of that Chatwar, a square iron  

plate fitted at the one end of the stick was seized under Ex.P/11.  

4. After investigation, charge sheet was filed.  As the accused persons  

pleaded  innocence,  trial  was  held.  Twelve  witnesses  were  examined  to  

further  the  prosecution  version.   PW-1 was an injured  witness.  The trial  

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Court  placed  reliance  on  the  evidence  of  eye  witnesses  and  found  the  

appellant  guilty.  Questioning  the  conviction,  the  appellant  preferred  an  

appeal before the High Court. The stand taken before the High Court that  

the occurrence took place in course of sudden quarrel was not accepted. The  

appellant  has  filed  this  appeal  primarily  on  the  ground  that  even  if  the  

prosecution version is accepted in its totality, case under Section 302 IPC is  

not made out.  

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

the judgment of the High Court.

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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  

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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  

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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  

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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 had 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  

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‘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 of H.P.  (2004 (11)  

SCC 381),  Byvarapu Raju v.  State of A.P. and Anr. (2007 (11) SCC 218)  

and  Hawa Singh and Anr. v.  State of Haryana (SLP (Crl.)  No.1515/2008  

disposed of on 15.1.2009).  

8. When  the  background  facts  are  considered  in  the  light  of  legal  

position elaborated above, the inevitable conclusion is that in the present  

case Exception 4 to Section 300 IPC applies.  

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9. That being so, the appropriate conviction would be under Section 304  

Part I, IPC. The conviction is altered accordingly. Custodial sentence of 10  

years would meet the ends of justice.  

10. The appeal is allowed to the aforesaid extent.  

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

         ………....................................J.

        (ASOK KUMAR GANGULY) New Delhi,

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April 09, 2009

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