BUDDU KHANversusSTATE OF UTIARAKHAND

                        [2009] 1 S.C.R. 178


A                         BUDDU KHAN
                                 v.                                 '"
                    STATE OF UTIARAKHAND
                 (Criminal Appeal No. 39 of 2009)
                        JANUARY 12, 2009
B
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]

        Penal Code, 1860:
c
        ss. 304 (Part /), 300, exception 4 and s. 302 - Murder or
  Culpable Homicide not amounting to murder - Applicability
  of Exception 4 to s.300 - Sudden quarrel between parties
  over a minor issue - Accused hitting the deceased resulting
D in his death - Incident witnessed by prosecution witnesses -
  Conviction u/s. 302 by courts below - Justification of - Held:
  On facts, exception 4 to s. 300 applicable - Conviction altered
  to s.304 (Part I) with custodial sentence of 10 years -
  Evidence.
E       s.300, Exceptions 1 and 4 - Distinction between -
    Explained.

       Words and phrases: 'Fight', 'sudden fight' and 'undue
  advantage' - Meaning of - In the context of Exception 4 to
F s.300, /PC.
       According to the prosecution case, the deceased bit
  the appellant on his cheek in presence of appellant's wife.
  The appellant protested the same and hit the deceased
  on his head with a brick. The deceased succumbed to his
G injuries. PW 1 and 5 witnessed the incident. Trial court
  convicted the appellant u/s.302 IPC. High Court upheld
  the order. Hence the present appeal.

        Partly allowing the appeal, the Court
H                               178
                 BUDDU KHAN v. STATE OF UTTARAKHAND                  179


               HELD: 1.1 Exception 4 to s. 300 IPC can be invoked           A
"          if death is caused (a) without premeditation, (b) in a
           sudden fight; (c) without the offender's having taken
           undue advantage or acting 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           B
           mentioned in it must be found. [Para 7] [183-A-B]

                1.2. 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
                                                                            c
           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         D
           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             E
           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'. [Para 7]
    ....   [183-B-E]
                                                                            F
               1.3. Considering the background facts of the case,
           Exception 4 to Section 300 applies to the facts of the
           case. The appropriate conviction would be undel'.' Section
           304Part1 IPC. Custodial sentence of 10 years would meet
           the ends of justice. [Para 8) [183-G)
                                                                            G
               Dhirajbhai Gorakhbhai Nayak v State of Gujrat (2003) 5
           Supreme 223; Prakash Chand v State of H.P. (2004) 11 SCC
           381 and Byvarapu Raju v. State of A.P. and Anr. (2007) 11
           sec 21 s, Relied on.
                                                                            H
    180         SUPREME COURT REPORTS               (2009] 1 S.C.R.


A                          Case Law Reference:
          (2003) 5 Supreme 223 Relied on.                 Para 8
          (2004) 11 SCC 381         Relied on.            Para 8
          (2007) 11 sec 218         Relied on.            Para 8
B       CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 39 of 2009.
      From the final Judgment and Order dated 18.3.2008 of the
  High Court of Uttarakhand at Nainital in Criminal Appeal No.
C 1973of2001.
          Rachana Joshi lssar, Shailendra Kumar and Nidhi Tewari
    for the Appellant.
        Abhishek Atrey and Jatinder Kumar Bhati for the
    Respondent.
0
          The Judgment of the Court was delivered by
          DR. ARIJIT PASAYAT, J.1. Leave granted.
                                                                      .
       2. Challenge in this appeal is to the judgment of a Division
E Bench of the Uttarakhand High Court upholding the conviction
  of the appellant for offence punishable under Section 302 of
  the Indian Penal Code, 1860 (in short the 'IPC').
          3. Background facts in a nutshell are as follows:
F       On 18.9.1993 at about 8.00 p.m. in Village Fauji Math Kota
  within the limits of P.S. Rudrapur (now part of District Udham
  Singh Nagar) accused appellant Buddu Khan and deceased
  Dinesh Oli were sitting together on a cot. Girish Chandra
  Chaturvedi (PW-1) was also present there. In his presence
G Buddu Khan protested to the deceased as to why did he bite
  on his cheek in the presence of his wife. Thereafter, Girish
  Chandra Chaturvedi had left the place. When PW-1 along with
  Tejpal (PW-5) and Jai Prakash again came towards near the
  office of Co-operative Society where earlier aforesaid incident
H had taken place, they saw Buddu Khan hitting with a brick on
         BUDDU KHAN v. STATE OF UTIARAKHAND                   181
                [DR. ARIJIT PASAYAT, J.]
   the head of Dinesh Oli and was saying that he will give the A
   deceased taste of biting the cheek. The three eye witnesses
   rushed and caught hold of appellant. However, he escaped after
   freeing himself. The report of the incident was lodged by Tejpal
   Singh (PW-5) with P.S. Rudrapur on the very day i.e. on
   18.9.1993 at about 9.30 p.m. after getting it scribed from one B
   Dharampal. Constable Ved Pal (PW-3) who received the First
   Information Report prepared check report and made necessary
   entry in the general diary, a copy of which is Ext.A-7. The crime
   was initially investigated by Sub-Inspector Surendra Singh Dagri
   (PW-7). He went to the spot and got prepared inquest report c
-- on 19.9.1993 at 2.00 a.m. after taking the dead body of the
   deceased in his possession. He also prepared site plan. The
   police also got prepared other necessary papers, sketch of the
   dead body, police form No.13 and letter to the Chief Medical
   Officer, requesting him for getting the autopsy done. Constable 0
   Pramod Kumar (PW-4) took the dead body in a sealed
   condition for post mortem examination to Soban Singh Jina
   Hospital, Haldwani and handed it over for the purpose. Dr. A.S.
- Singh (PW-2) conducted the post mortem examination on
   19.9.1993 at about 1.00 p.m. on the dead body of deceased E
   and prepared report. He opined that cause of death was ante
   mortem injuries on the skull bone and effusion of blood into the
   brain matter. Subsequently, investigation was taken over by
   Prem Singh Ahlawat (PW-6), Inspector who after interrogation
   of the witnesses and completing the investigation submitted
   charge sheet to the Magistrate concerned. Case was F
   committed to the Court of Sessions.
      The trial Court placed reliance on the evidence of the eye
 witnesses PWs 1 and 5. In appeal, the stand was that there
 was no pre-meditation. On the contrary, because the deceased        G
 had bitten on the cheek of appellant in the presence of his wife,
 there was a quarrel and in course of which the appellant picked
 up a brick and hit it on the head and one blow was given. The
 High Court did not find substance in the plea that Section 302
 has no applicati'"' •                                               H
      182        SUPREME COURT REPORTS                 [2009] 1 S.C.R.


 A        4. In support of the appeal, learned counsel for the
      appellant submitted that the background facts clearly
                                                                             .
      established that Section 302 has no application.

          5. Learned counsel for the respondent-State on the other
      hand supported the judgment.
  B
           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
 c    advantage and not having acted
                                   I
                                         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
 D 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
 E
     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
 F 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
 G 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
.H aggravated it by his own conduct it would not have taken the
         BUDDU KHAN v. STATE OF UTTARAKHAND                    183
                [DR. ARIJIT PASAYAT, J.]
serious turn it did. There is then mutual provocation and             A
 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 acting in a cruel or unusual manner; and (d) the         B
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 t&es two to
make a fight. Heat of passion requires that there m~st be no          c
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
                                                                      0
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            E
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) and Byvarapu               F
Raju v. State of A.P. and Anr. (2007 (11) SCC 218)

     8. Considering the background facts of the case we are
of the view that Exception 4 to Section 300 applies to the facts
of the case. The appropriate conviction wouid be under Section        G
304 Part I IPC. Custodial sentence of 10 years would meet the
ends of justice.

       9. The appeal is allowed to the aforesaid extent.
N.J.                                      Appeal partly allowed.      H