REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.            OF 2008 (Arising out of SLP (Crl). No. 1050 of 2008)

Shambhoo Singh ….Appellant  

versus

State of Rajasthan ….Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. The  appellant  questions  legality  of  the  judgment

rendered by a Division Bench of the High Court of Rajasthan

at  Jodhpur  Bench.  The  learned  Additional  Sessions  Judge

No.2, Udaipur found the accused guilty of offence punishable

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

the ‘IPC’) and sentenced him to undergo RI for life and to pay

a  fine  with  default  stipulation.  He  was  also  convicted  for

offence punishable under Section 447 IPC and sentenced to

undergo 15 days’ RI. Additionally, he was convicted for offence

punishable under Section 307 IPC and sentenced to undergo

10 years RI and pay a fine of Rs.100/-. Similarly, in respect of

offence punishable under Section 324 IPC he was sentenced

to  undergo  RI  for  one  year.  In  appeal,  by  the  impugned

judgment,  High Court confirmed the judgment of conviction

and sentence.  

3.  Prosecution  version  as  unfolded  during  trial  is  as

follows:

On  3.8.1999,  Vaje  Singh  (PW-1)  lodged  a  First

Information Report at Police Station Pahara stating, inter-alia

that  in  the  morning  at  about  9.00  a.m.  his  brother  Jawan

Singh (hereinafter referred to as the ‘deceased’) was ploughing

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the  field.  He  alongwith  his  father  Gulab  Singh  and  elder

brother Ram Singh was working in the field. At that time, his

neighbour appellant Shambhoo Singh, his father Som Singh

and mother Smt. Jeevi arrived there abusing them. Appellant

Shambhoo Singh was carrying knife in his hand. Som Singh

and  Smt.  Jeevi  were  carrying  lathis.  They  challenged  them

and questioned  as  to  how they  were  ploughing  the  field  of

their possession. There ensued a quarrel and exchange of hot

words. Appellant Shambhoo Singh stabbed the knife  on the

chest of Jawan Singh. He caused another injury by knife on

the  stomach.  On  intervention  by  his  father,  appellant

Shambhoo  Singh  caused  injury  by  knife.  He  also  caused

injuries  to  his  mother  Smt.  Shanta  and elder  brother  Ram

Singh. Appellant Shambhoo Singh also caused injuries to him.

Jawan Singh succumbed to the injuries on the spot. It  was

stated that there was a land dispute between them, which led

to the unfortunate incident.

On  this  information,  police  registered  a  case  and

proceeded  with  the  investigation.  The  post-mortem  of  the

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dead body was conduced by Dr.  Mahendra (PW-17)  on the

spot  vide  Ex.P-42.  He  noticed  the  following  injuries  on his

person:  

1.  An  incised  stab  wound  -  2.0  cm  x  1.0  cm  x

perforating  up  to  chest  cavity  placed  in  6th

intercostal space below left Nipple place obliquely.

On exploration - There is a wound of 1.55. cm

x 1.0 cm x 2 cm deep left  ventricle  of  the Heart.

Cavity full of Blood.

2.  An  incised  stab  wound  -  1.5  cm  x  1.0  cm  x

thoracic  cavity  deep  5  cm  lateral  to  injury  No.  l

placed obliquely.

On exploration of wound - There is a wound of

1.0 cm x 2 cm lung tissue deep placed on the left

lung. Thoracic cavity was full of blood.

3.  An  incised  stab  wound  -  2.0  cm  x  1.0  cm  x

abdominal cavity deep. On exploration of wound -

There  was  no  injury  to  any  Abdominal  Viscera.

Intestinal loops are protruding through this wound.  

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4.  Abrasion-  2.5  cm  x  1.0  cm  placed  on  upper

1/3rd on medial side of right leg.

The cause of death was shock due to severe

bleeding  following  stab  wound  to  chest  and

abdomen.  The  injured persons namely  PW-1 Vaje

Singh, PW-10 Gulab Singh and PW-3 Smt. Shanta

were  sent  to  the  hospital.  Their  injuries  were

examined by PW-1 l, Dr. B.P. Verma.  He examined

the injuries of PW-1 Vaje Singh vide Ex. P-12 and

noticed the following injury on his person:

Incised  wound 4 x  2 x  1  1/2  cm on left

gluteus.

He  also  examined  the  injuries  of  PW-l0  Gulab  Singh

vide Ex.P -11 and noticed the following injuries:

Stab wound transversely with bleeding on left intra  mammary  region  4x  1  x  plural  cavity deep surgical empug sema left side.

He also examined the injuries of PW-3 Smt Shanta vide

Ex. P-13 and noticed the following injuries:

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Incised wound 1 ½  x 1/2 x  ½ cm on Right arm M/3rd Ant.   

After  usual  investigation,  the  police  laid  charge sheet

against appellant Shambhoo Singh, his father Som Singh and

mother Smt. Jeevi for offence under Sections 302, 307, 326.

324, 447/34 IPC. The accused persons pleaded not guilty of

the charges levelled against them and claimed trial.  

The trial Court placing reliance on the evidence of PWs 1,

2, 3 and 10 found the evidence to be credible and cogent. It

found the evidence of the injured witness to be without any

blemish. Accordingly, the trial Court recorded the conviction

and sentence as afore-noted.  

In appeal before the High Court, the primary stand taken

was that the ocular evidence does not inspire corroboration. It

was  submitted  that  in  any  event  offence  punishable  under

Section 302 IPC is not made out as the occurrence occurred in

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course  of sudden quarrel.  The  High Court  did not find any

substance and dismissed the appeal.

4. In  support  of  the  appeal,  learned  counsel  for  the

appellant submitted that the occurrence took place during the

course of sudden quarrel and, therefore, Section 302 IPC has

no application.  

5. Learned counsel for the respondent-State supported the

judgments of the trial Court and the High Court.  

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  to  Section  300  IPC  covers  acts

done in a sudden fight. The said Exception deals with a case

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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 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  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

what shall be deemed to be a sudden quarrel. It is a question

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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”.  

8. In  the  background  facts  as  considered  in  the  light  of

evidence  the  inevitable  conclusion  is  that  the  appropriate

conviction would be under Section 304 Part I, IPC. Custodial

sentence  of  10  years  would  meet  the  ends  of  justice.  The

conviction  in  respect  of  other  offences  and  the  sentences

imposed  do  not  suffer  from  any  infirmity  to  warrant

interference.  The sentences shall run concurrently.

9. The appeal is allowed to the aforesaid extent.  

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

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

New Delhi, July 22, 2008   

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