REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 868 OF 2007

Shaikh Azim @ Vakil @ Kuku ..Appellant

Versus

State of Maharashtra ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

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

Division Bench of the Bombay High Court, Nagpur Bench,

upholding conviction of the appellant for offence punishable

under Sections 302 of the Indian Penal Code, 1860 (in short

the  ‘IPC’)  as  was  awarded  by  the  9th Additional  Sessions

Judge,  Nagpur.  Three  persons  faced  trial.  They  are  Sk.

Rahim(A-1), Sk. Azim (A-2) and Sk Ibrahim (A-3).  A-1 was

acquitted  and  A-3  was  convicted  for  offence  punishable

under Section 325 IPC.

2. Background facts in a nutshell are as follows:

The house of Abdul Jabbar Qureshi (hereinafter referred

to  as  the  ‘deceased’)  was  adjacent  to  the  house  of  the

appellant/accused in Nava Nakasha,  Lashkaribagh,  Nagpur.

At the relevant time, the appellant along with his two brother

i.e.  Sk.  Rahim and Sk.  Ibrahim as well  as his parents and

grand father were residing in the same house.  According to

the prosecution, about four months prior to the incident  in

question, the relations between the family of the deceased and

the accused were strained, since the family members of the

deceased allegedly threw filth from their side of the house into

the  courtyard  of  the  house  of  the  accused.   The  family 2

members of the deceased questioned the conduct of the family

members  of  the  accused.   However,  the  appellant  and  his

family members did not pay heed to this aspect.

The incident in question took place on 8.8.1986 at about

12.00 noon.   The  deceased  and his  son Abdul  Khaliq  were

present in their house along with other family members.  At

that  time  they  noticed  that  some  filth  has been  thrown by

somebody in the backyard of their house from the side of the

house of the accused.  The deceased and his family members,

therefore,  got angry and expressed their displeasure in loud

and strong words. The family members of the accused heard

the words used by the family members of the deceased and,

therefore,  the  lady  members  of  the  family  of  the  accused

started abusing the deceased and his family members in filthy

language.  Then the deceased and his son Abdul Khaliq came

out  of  their  house.   The  accused  persons  along  with  their

grand  father  Shaikh  Ahmed  also  came  out  of  their  house.

Accused Sk. Azim (appellant) was holding a Stick, accused Sk. 3

Ibrahim was holding an iron rod and accused Sk. Rahim was

also holding a stick in his hand.  Accused Azim gave a stick

blow on the head of the deceased due to which he received

bleeding injury.  Abdul Khaliq, son of the deceased, rushed to

rescue his father.  All the accused attacked him and beat him

with iron rod and stick on his  head and abdomen.   Abdul

Khaliq received injuries on his person.  The persons from the

locality  gathered and rescued  them from the accused.   The

deceased had become unconscious because of the blow which

was given by accused no.2, the appellant on the head of the

deceased.  His condition was serious. Therefore, he was sent

to Mayo hospital.  The deceased succumbed to the injuries on

the next day i.e. on 9.3.1986 at about 3.30 p.m.   

The dead body of the deceased was referred to the doctor

for post mortem examination.  Dr. Deuskar (PW4) conducted

the post mortem examination and opined that the injury on

the head of the deceased was sufficient in the ordinary course

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of nature to cause death and also opined that the said injury

is possible by the weapon like stick (lathi).

3. The  conviction  was  challenged  before  the  High  Court,

which  as  noted  above,  dismissed  the  same.   The  present

appeal has been filed by A2.

4. Learned  counsel  for  the  appellant  in  support  of  the

appeal submitted that the prosecution version is not cogent.

The evidence  of  PWs.  3 and 6 should  not  have been relied

upon though they claim to have witnessed the incident.   In

any event, it is submitted that the offence is not covered by

Section 302 IPC. The occurrence took place during the course

of a sudden quarrel.     

5. Learned counsel for the respondent-State supported the

judgment of the courts below.

6. So far as evidence of eye witnesses is concerned, PWs. 1

and 3 were the witnesses of the occurrence.  So far as PW6 is

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concerned,  he  has stated  about  the  hot  exchange  of  words

which were going on.  All the witnesses have stated that A-2

had assaulted  the deceased.  Their  evidence  does  not  suffer

from any infirmity.   

7. In essence the stand of learned counsel for the appellant

is that Exception IV to Section 300 IPC would apply to the

facts of the case.      

8. 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.

9. The Fourth Exception to 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

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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

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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

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

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 or more persons whether with or without

weapons. It is not possible to enunciate any general rule as to

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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  that  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. The above position is highlighted in  Sandhya Jadhav v.

State of Maharashtra (2006) 4 SCC 653).   

11. When  the  factual  scenario  is  considered  in  the

background  of  legal  principles  set  out  above,  the  inevitable

conclusion is that the appropriate conviction would be under

Section 304 Part I IPC.  Custodial sentence of 10 years should

meet the ends of justice.   

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12. Appeal is allowed to the aforesaid extent.    

................................ .J.

(Dr. ARIJIT PASAYAT)    

…….………................J. (P. SATHASIVAM)

New Delhi, July 14, 2008

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