REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                OF 2008 (Arising out of SLP (Crl.) No. 5360 of 2008)

Samsuddhin Sheikh …Appellant

Vs.

State of Goa  ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

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

Bombay  High  Court,  Bench  at  Goa  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’). The appellant has faced

trial alongwith Ashish Culaco and both were convicted in the aforesaid way.

The  accused  persons  were  tried  by  learned  Additional  Sessions  Judge,

Margao on a charge of having committed murder of one Shashikant Kawade

(hereinafter referred to as the ‘deceased’) by stabbing him with a knife on

his chest on 18.5.1998 in the night.  

2. Prosecution version, in a nutshell, is as follows:

The  appellant  accused and his  colleague  Ashish  Culaco  were pick

pocketers and on 18.5.1998 the deceased Shashikant Kawade had slapped

one of them because of which they had threatened the deceased Shashikant

Kawade with dire consequences. On the same day at about 2.00 p.m. they

had visited the room of Shashikant Kawade and in the presence of his wife,

they provoked him to come out of his house by abusing him but Shashikant

Kawade was not permitted to go out of the house. The appellant and Ashish

left  the place.  On the same day in  the  evening  at  about  8.15  p.m. when

Shashikant Kawade was sitting outside ‘Napolean Bar’, he heard shouts of

‘chor  chor’  from  the  nearby  huts  on  which  Shashikant  Kawade  rushed

towards that direction followed by Rafik Gondi and when he reached in the

field, there was exchange of hot words in course of a quarrel and appellant

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accused and the co-accused assaulted him and the appellant accused took

out a knife and stabbed Shashikant Kawade on the  chest because of which

he collapsed on the ground.  The appellant accused and the co-accused tried

to run away from the scene of offence. But they were accosted and assaulted

by the public with rods and kicks. In the meantime the police arrived at the

spot and took away injured Shashikant Kawade as well as both the accused

persons  to  the  hospital  and  on  the  way  he  died.  After  completing  the

investigation, charge sheet against the appellant accused and the co-accused

was filed and the matter  was committed by the Judicial  Magistrate,  First

Class, Margao to the Court of Session.     

Since accused abjured guilt, trial was held. The trial Court relied on

the evidence of the prosecution witnesses and recorded the conviction and

imposed sentence as aforesaid.  

In appeal, the primary stand was that the occurrence took place in the

course of sudden quarrel and, therefore, Section 302 IPC has no application.

It is pointed out that the deceased had slapped the appellant. He was a pick-

pocket and in the course of altercation fighting took place. The High Court

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

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The stand taken before the High Court was re-iterated in the present

appeal.  

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

the judgment.  

4. For the application of Exception 4 of 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.

5. 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

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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

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

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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’.     

6. Where the offender takes undue advantage or has acted in a cruel 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 giving the

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

undue advantage.   

7. In  the  background  facts  as  stated  in  the  backdrop  of  the  legal

principles set out above, the inevitable conclusion is that the appellant is to

be convicted under Section 304 Part I, IPC. Custodial sentence of 10 years

would meet the ends of justice.  

8. The appeal is allowed to the aforesaid extent.    

……………………………… …..J.

(Dr. ARIJIT PASAYAT)

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

New Delhi, November 26, 2008                    

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