REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 414 OF 2002
Vishal Singh ..Appellant
Versus
State of Rajasthan ..Respondent
JUDGMENT
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
2
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.
3
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.
4
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
5
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
6
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
7
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
8