Holding

The death does not fall within Exception 4 of Section 300 IPC; the proper conviction is under Section 304 Part I IPC.

Summary

The case arose when the informant’s bullocks strayed into the field of Kashi Prasad, leading to a verbal altercation that escalated into a physical fight. During the scuffle Kashi Prasad struck the deceased Lachhi Ram with a spear, causing injuries that proved fatal. The trial court convicted the appellant under Section 302 read with Section 34 and Section 323 read with Section 34 of the IPC; the High Court affirmed this conviction. The appellant contended that the death occurred in a sudden fight and that Exception 4 to Section 300 IPC should apply, reducing the offence to culpable homicide not amounting to murder. The Supreme Court held that the facts did not satisfy the requirements of Exception 4 because the appellant had taken undue advantage and acted in a cruel manner, and therefore the appropriate conviction is under Section 304 Part I IPC with a ten‑year imprisonment. The appeal was partly allowed, the conviction was altered and the sentence reduced accordingly.

Issues considered

Whether the facts of the case satisfy the criteria of Exception 4 to Section 300 IPC, thereby converting the offence to culpable homicide not amounting to murder.
Whether the conviction under Section 302 read with Section 34 IPC is sustainable in view of the circumstances of the incident.

Legislation cited

Indian Penal Code, 1860s. 300, s. 302, s. 304 Part I, s. 323, s. 34

Subjects

murderculpable homicide not amounting to murderException 4 Section 300 IPCsudden fightundue advantageIndian Penal Codecriminal convictionsentencing

Judgment

[2008] 10 S.C.R. 1090

A KASHI PRASAD
I
v. •
STATE OF UTTAR PRADESH
(Criminal Appeal No. 111 of 2003)

B
JULY 16, 2008 ------- t
[DR. ARIJIT PASAYAT, P. SATHASIVAM AND DR. '
MUKUNDAKAM SHAR~A, JJ.]

Penal Code, 1860; S.302 rlw s. 34, S.323 rlw s. 34 and
c Exception 4 to s. 300 and s. 304 Part-I:
Murder/culpable homicide not amounting to murder -
Applicability of Exception 4 to s.300 !PC - Held: There was
no enmity between the parties prior to the incident - In the
course of quarrel, accused gave blow to the deceased - In the '-
D facts and circumstances of the case, the proper conviction ~
I

would be under s.304 Part I !PC and not under s.302 rlw s. 34
/PC - Custodial sentence altered to 10 years - Directions is-
sued. >·
Exceptions 1 and 4 to s. 300 !PC - Distinction between.
E
Words and Phrases:
'sudden fight' and 'undue advantage' - Meaning of
According to _the prosecution, on the fateful day,
F when the first informant along with his parents was re-
turning home after ploughing the field, his bullocks
strayed into the field of accused, the appellant and dam-
aged his field. Appellant abused PW1 and his father. When
PW1 asked the accused-appellant to stop abusing them,
G the accused· and his accomplice gave a spear blow on
him. In defence, PW1 also assaulted the accused per-
sons, as a result of which they also sustained injuries. 7"-

PW1 put his injured father in ti1e bullock cart who took
his last breath on the way to police station. An FIR was
H 1090
KASHI PRASAD v. STATE OF UTTAR 1091 '
t PRADESH

lodged by PW1 against the accused persons. Police made A
investigation and after completing the investigation sub-
mitted the charge-sheet. Trial Court found the accused
guilty of committing the offences punishable under s.302
r/w s.34 and S.323 r/w s. 34 IPC. The appeal preferred there-
against by the convicts was dismissed by the High Court. B
Hence the present appeal.
Accused-appellant contended that even if the pros-
ecution version is accepted in toto, the appellant cannot
be convicted for offence under Se~tion 302 IPC. A single
blow was given in course of a sudden quarrel. Therefore, C
exception 4 to s. 300 IPC applies.
Partly allowing the appeal, the Court
HELD: 1.1. On account of rainy season there was
· ·¥ mud in the field with the result that four bullocks of the D
informant entered the 1:ibutting field of the accused. The
evidence on record shows that there was no pique or
enmity between the parties prior to the incident ih qLes-
tion. The appellant and his father became hypersensitive
and felt hurt and quarrel thereafter started andI in course E
of the quarrel a blow was given by the ,appellant. (Para - :/
6) (1096 G-H, 1097 A]
1.2 The only question is applicability of Exception 4
of Section 300 IPC. For bringing in its operation it has to ·
be established that the act was committed without pre-' F
meditation, in a sudden fight in the heat of passion upon
a sudden quarrel without the offender having taken un-
due advantage ~nd not having acted in a cruel or unusual
manner~ (Paras ...:. 7 & 8) [1097 A-8]
G
1.3 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 H
1092 SUPREME COURT REPORTS [2008] 10 S.C.R.
-t

A both there is absence of premeditation. But, while in the
case of Exception 1 there is total deprivation of self-con-
trol, in case of Exception 4, there is only that heat of pas-
sion which clouds men's sober reason and urges them
to deeds which they would not otherwise do. There is ....... """'~
·s provocation in Exception 4 as in Exception 1 but the in-
jury done is not the direct consequence of that provoca-
tion. (Para - 9) [1097 C-E] · ~
.~ ',

1.4 A 'sudden fight' implies mutual provocation and
b.lows on each side. The homicide committed is then
c clearly not traceable to unilateral provocation, nor in such
....
cases could the whole blame be placedpn one side. For
if it were so, the Exception more appropriately applicable
would be Exception 1 to S.300. (Para - 9) [1097-F]
I
1.5 For the application of Exception 4, it is not suffi- "4:· •
D
cient to show that there was a sudden quarrel and there f
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'. (Para-
E 9) [1098 0-E]

2. In the facts and circumstances of the present case,
the proper conviction would be under Section 304 Part 1
IPC and custodial sentence of 10 years would meet the
ends of justice. (Para -10) [1098-F] T
F
CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
No. 111 of 2003 f
From the final Judgment and Order dated 26.7.2001 of
the High Court of Judicature at Allahabad in Criminal Appeal
G
No. 293 of 1981
.........
Ajay Bhalla, Abhinav Jain, Sunita Rani Singh and Abha R.
Sharma for the Appellant.
Anil K. Jha and Vijay Pratap Singh for the Respondent.
H
d t- KASHI PRASAD v. STATE OF UTTAR 1093
PRADESH [DR. ARIJIT PASAYAT, J.]

The Judgment of the Court was delivered by A
Dr. ARIJIT PASAYAT, J. 1.Challenge in this appeal is to
the judgment of a Division Bench of the Allahabad High Court
holding the appellant guilty .of offence punishable under Sec-
tion 302 read with Section 34 of the Indian Penal Code, 1860
(in short the 'IPC') and Section 323 read with Section 34 B
IPC.
2. The appellant and his father Baidu had filed the appeal
before the High Court questioning the correctness of the con-
viction and imposition of sentence as done by the learned Ses- c
sions Judge, Hamirpur in Sessions Trial No.287 of 1980. The
appellant's father Baidu died during the pendency of the ap-
peal before the High Court and, therefore, the appeal stood
abated so far as he is concerned.
+
3. The prosecution version as unfolded during trial is es- D
sentially as follows:
Kali Charan, first informant (PW-1), his father Lachhi Ram
(hereinafter referred to as the 'deceased') and his mother Smt.
Ram Kunwar were returning after ploughing the land of Chandra
' Bhan with their bullocks on 28. 7.1980 through the village path- E
way which was running from western to eastern side as shown
in the site plan. The land of Pandit Laxman Prasad resident of
village Mas Gaon is towards the northern side of the village
-..,.- pathway. This land was with the accused persons on share crop
basis. On account of existence of mud on the village pathway, F
the bullocks of Kali Charan, first informant strayed into the field
of accused Kashi Prasad. The accused persons became agi-
tated on account of damage caused by the bullocks in their field
and consequently they abused Kali Charan and his father Lach hi
Ram. Latter took exception to it and asked the accused to re- G
_,,._
train from abusing. Accused Kashi Prasad dealt the deceased
Lachhi Ram with a blow by a spear. Lachhi Ram fell on the
ground. Baidu mounted an assault on the deceased with his
lathi. Kali Charan also received lathi injuries. Kali Charan who
was carrying a Khaulia used the same in defence of his father, H
1094 SUPREME COURT REPORTS [2008] 10 S.C.R.

A as a result of which accused Kashi Prasad and Baidu received
injuries. After making necessary arrangement, Lach hi Ram was
put in a Bullock cart but he took his last breath an way to police
station Kharela. The dead body was taken to police station
where a written first information report, Exh.ka-2 was lodged by
B Kali Charan. The investigation was undertaken. The Autopsy
Surgeon· Dr. G.S. Pandey (PW-5) found the following ante
mortem injuries on the body of the deceased Lachhi Ram:
1. st~b wound 1 cm x 1cm in front of abdomen 4 cm
from ambilicus at its level and right side. Skin,
C muscles, peritoneum, loops of large intestine pierces
and finally entering the right side of kidney, which is
done in pieces. There is plenty of blood and blood
clots seen in peritoneal cavity. Contents of large
intestines are mixed in pool of blood in cavity.
D
2. Contusion 7cm x 2cm in right side forearm in postero
lateral aspect the underlying radio ulna fractured at
lower 1;3rd.
3. Lac~rated wound 5cm x 1cm x bone deep in right
E parietal prominence direction front to back.
4. Contusion 5cm x 1 % cm in right side of forehead at
upper border front to back direction.
5. abraded contusion 6 % cm x 4 cm on right side of .
F chest in thoracic region in anterior auxillary line in 7th
to 10th 1.C.S.
6. Contusion 4 %- cm x 2cm in left shoulder joint at
acromian proce~s in laterial aspect.
G On the person of Kali Charan who was medically exam-
ined on 29. 7 .1980 by Dr. M .Y. Qureshi (PW-2) following nine
injuries were found: l

1. contused wound 2 cm x % cm on the left side of head
7 cm above ear. - -
.H
KASHI PRASAD v. STATE OF UTTAR 1095
+- PRADESH [DR. ARIJIT PASAYAT, J.]

2. Abrasion 6cm x 2cm on the right arm upper half outside. A
3. Swelling 7 cm x 3 cm over the right thigh.
4. Abrasion 5.5 cm x 2cm on the right arm upper half front.
5. Abraded contusion 5 cm x 3 cm just above the
shoulder blade. B

6. Swelling 7cm x 2cm on the left index finger dorsal surface.
7. Selling 2cm x 1 cm over the left thumb distal phalangal
joint dorsum.
c
8. Abraded contusion 5 cm x 2cm, 2cm outer to left
right nipple.
9. Abraded contusion 5 cm x 2cm on the left forearm half.
The accused Kashi Prasad and Baidu who were taken in D
)'
custody were medically examined by Dr. S.N. Dixit, (D.W.1)
Assistant Medical Officer, District Jail, Hamirpur, Kashi Prasad
received the following two injuries:
1. Contusion 3 cm x 1cm on left wrist joint radial aspect.
E
2: Contusion 2 cm x 1 cm on left arm middle part.
Baidu had received following three injuries:

1. Dressed wound 1/2cm x 1/2cm x bone deep on the
left fore arm 3 cm above left wrist joint.
-,:- F
2. Dressed wound 1 2/2 cm x % cm x muscle deep on
the left hand dorsum 2 cm medical to web to left thumb.
3. Lacerateo dressed wound 2cm.x 1cm x muscle deep
on left hand just on base on index finger.
G
The injuries received by Kashi Prasad and Baidu were
.A-- termed to be simple having been caused by some blunt object.

At the trial, Kali Charan (PW-1); Jhalli (PW-3) and Sukh
Lal (PW-4) were examined as eye-witnesses besides other
formal witnesses. H
1096 SUPREME COURT REPORTS [2008] 10 S.C.R.

The accused persons took the plea of self defence. Ac-
--+ .. I

A
cording to Kali Prasad, Kali Charan and deceased-Lachhi Ram
had deliberately driven their bullocks into field of the accused
and on his intervention Lachhi Ram and Kali Charan began to
abuse him and threatened him. He further stated that Kali
B Charan caught hold of him and when he managed to release --;._.._ -
himself from the clutches of Kali Charan, the deceased began
to assault him with lathi and Kali Charan armed with a Khaulia
rushed at him and th~r_eupon his father Baidu rushed to save
him and thereafter Kali' Charan began to mount assault upon
c Baidu with Khaulia. Kashi Prasad further stated that he used
spear to defend himself and his father Baidu and that he and
Baidu both received injuries ;fod they were medically examined
in the District Jail, Hamirpur. The accused Baidu took similar
plea. The accused Maha Prasad pleaded alibi.
D The trial Coµ rt on consideration of the evidence on record
>I,-
came to hold that the plea of self defence raised by the ac-
cused was not made out and it was a case of murder of de-
ceased. The accused also caused injuries on the informant.
The High Court found no substance in the plea of accused ap-
E pellants and dismissed the appeal.
4. Learned counsel for the appellant submitted that even if
the prosecution version is accepted in tote, the appellant can-·
not be convicted for offence under Section 302 IPC. A single
blow was given in course of a sudden quarrel. Therefore, ex-
F ception 4 to Section 300 applies. ·t-
,;.'.l .
5. Learned counsel for the respondent-State on the other
hand supported the judgments of the trial Court and the High
Court.
G 6. It appears that the bullocks of the informant Kali Charan
strayed into the field of Chandra Bhan. On account of rainy sea-
son there was mud in the field with the result that four bullocks of ...-.,_
the informant entered the abutting field of the accused. The evi-
dence on record shows that there was no pique or enmity be-
H tween the parties prior to the incident in question. The appel-
KASHI PRASAD v. STATE OF UTTAR 1097
PRADESH [DR. ARIJIT PASAYAT, J.]
+-
lant and his father Baidu became hypersensitive and felt hurt A
and quarrel thereafter started and in course of the quarrel a blow
was given by the appellant.
7. The only question is applicability of Exception 4 of Sec-
tion 300 IPC.
B
8. For bringing in its operation 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. c
9. 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 D
j-
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 E
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 F
""'r in respect of guilt upon equal footing. A 'sudden fight' implies
mutual provocation and blows on each side. The homicide com-
mitted 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
G
would be Exception 1. There is no previous deliberation or de-
termination 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 ildid. There is
H
1098 SUPREME COURT REPORTS [2008] 10 S.C.R. '
I
l

A 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
B unusual manner; and (d) the fight must have been with the per-
son killed. To bring a case within Exception 4 all the ingredi-
ents mentioned in it must be found. It is to be noted that the
'fight' occurring in Exception 4 to Section 300 IPC is not de-
fined in the IPC. It takes two to make a fight. Heat of passion
C 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 no possible to enunciat~ any general
rule as to what shall be deemed to be a sudden quarrel. It is a
D 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 an·d there was no premeditation. It
must further be shown that the offender has not taken undue
E advantage 6r acted in cruel or unusual manner. The expression
'undue advantage' as used in the provision means 'unfair ad-
vantage'.
10. Considering the factual scenario as projected by the
F prosecution, the proper conviction would be under Section 30,4
·r
Part 1IPC. Custodial sentence of 10 years would meet the ends
of justice.
11. The appeal is allowed to the aforesaid extent.
S.K.S. Appeal partly allowed.

. .........