REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 414   OF 2002

Vishal Singh  ..Appellant

Versus

State of Rajasthan  ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1. Challenge in this appeal is to the judgment of Rajasthan High Court,

Jodhpur  Bench  upholding  the  conviction  of  the  appellant  for  offence

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

‘IPC’).  The accused alongwith four others  faced trial.  While the accused

faced trial  for alleged commission of offences punishable  under Sections

302 and 341 IPC, others faced trial for offence punishable under Sections

323 and 341 IPC.

2. The  learned  Special  Judge  SC/ST  Act  Cases,  Jodhpur,  held  the

appellant guilty of offence punishable under Sections 302 and 341 IPC. We

are  not  concerned  with  the  conviction  and  sentence  in  respect  of  other

accused persons.  

3. Prosecution version in a nutshell is as follows:

At 8.00 p.m. on 5.12.1996 in the city of Jodhpur P. Mukesh (PW-6)

with his  uncle  Chetan  Prakash  (PW-7) as  also his  father  Kaluram (since

deceased)  went  to  Railway  Stadium  on  bicycles  to  bring  waste  meals

discarded by the marriage party for  their  pigs.  At about  10.15 p.m. they

were coming back from the Railway Stadium in two bicycles collecting the

waste meals near S.P.S. School. By the side of the road, five persons were

standing with a scooter and a Hero Puch. They stopped the deceased and

others and asked wherefrom they were coming and called them thieves and

wanted to take their personal search. When Kaluram as also Chetan Prakash

refused to give their personal search, Vishal Singh accused appellant herein,

took out a knife from his pocket and inflicted the fatal blow on the chest of

Kaluram. Co-accused Manoj Kumar inflicted a stone blow on the head of

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Kaluram. The  remaining  three  persons  started  beating  by  fists.  When

PW-6 Mukesh and PW-7 Chetan Prakash intervened, all the assailants made

good their escape.

After walking few steps Kalurarn became unconscious and fell down.

Thereafter, injured Kaluram was taken to Railway Hospital in a taxi from

where  he was referred  to  Mahatma Gandhi  Hospital  for  treatment  where

Kaluram passed away at 1.30 A.M. At the hospital itself Mukesh (PW-6) at

2.15 P.M. gave a parcha bayan Ex.P.7 to Girija Shankar, S.I. (PW-3) who

sent the same to Police Station Sardarpura where FIR Ex.P/24 was recorded

at 2.30 A.M. Immediately thereafter all the five accused persons  were put

under arrest.  Knife (Article 1) was recovered on the voluntary disclosure

statement given by appellant which was seized, sealed and sent to the FSL

where it was found stained with human blood.  

After investigation charge sheet was filed. Since the accused persons

pleaded innocence trial was held.  

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One Manoj Kumar who had faced trial alongwith the appellant was

acquitted of all charges. The other co-accused persons were convicted under

Sections 323 and 341 and were released on probation.  

Before the trial Court the primary stand was of false implication and

alternatively it  was pleaded that there was single injury and that too in a

sudden  quarrel  and  sudden  fight  without  pre-meditation  and,  therefore

Section 302 has no application. The trial Court did not accept the plea and

as noted above recorded conviction and imposed life imprisonment.  

4. In  appeal,  the  stand  taken  before  the  trial  Court  was  re-iterated.

Learned counsel for the State on the other hand submitted that there was no

quarrel as claimed by the accused. Therefore, Exception 4 to Section 300

has no application to the facts of the case. The High Court did not accept the

plea of the accused appellant and dismissed the appeal.  

5. Stand taken before the High Court was re-iterated. It is to be noted

that occurrence took place at about 10.15 p.m. on 5.12.1996 and the FIR

was promptly lodged.  

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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

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

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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

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

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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’. 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. In the instant case the High Court noted that the accused appellant

was  armed  with  knife  and  standing  with  his  friends  and  accosted  the

deceased and PW-6.  They were labelled thieves and after abusing them,

accused persons started search of their persons which was ordered by the

present appellant. When the deceased resisted he was not only thrashed but

also given fatal injury on his chest with such force that it penetrated upto

lower lobe of lung as also pericardium resulting in his death. There was no

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evidence  of  any  scuffle  much  less  sudden  fight  or  sudden  quarrel  or

altercation between the parties. It was the right of the deceased and PWs 6

and 7 to  resist  their  personal  search  because  they were not  armed.  That

being so, Exception 4 to Section 300 IPC has no application to the facts of

the case.  The appellant has been rightly convicted in terms of Section 302

IPC. We find no merit in this appeal which is accordingly dismissed.     

………………………………….J. (Dr. ARIJIT PASAYAT)

. ………………………………….J. (V.S. SIRPURKAR)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, February 25, 2009

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