SHAIKH AZIM @ VAKIL @ KUKUversusSTATE OF MAHARASHTRA

                         [2008] 10 S.C.R. 916


A                SHAIKH AZIM @ VAKIL @ KUKU
                                  II.
                   STATE OF MAHARASHTRA
                 (Criminal Appeal No.868 of 2007)
                           JULY 14, 2008
B
       [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

         Penal Code, 1860:
        s. 304 (Part /) - Relations between family of deceased
C and that of Appellant strained - Hot exchange of words be-
  tween parties - Appellant assaulted deceased - Gave stick
  blow on head - Bleeding injury leading to death - Conviction
  by Courts below u/s.302 - On appeal, held: In the facts and
  circumstances of the case, appropriate conviction would be u/
D s. 304 Part I - Custodial sentence of 10 years.
       s. 300, Exception IV - App/lcability of - Held: For appli-
  cation of Exception 4, it is not sufficient to show that there was
  a sudden quarrel and that there was no premeditation - It must
  further be shown that the offender did not take undue advan-
E tage or acted in cruel or unusual manner - Expression "un-
  due advantage" as used in the provision means "unfair ad-
  vantage".
         Words and Phrases - "sudden fight" and "undue advan-
F   tage" - Meaning of - In context to Exception IV to s. 300, /PC.
       The house of the deceased was adjacent to the
  house of the accused-Appellant. The relations between
  the family of the deceased and that of the Appellant were                   •,
  strained. According to the prosecution, on the incident
                                                                               ~




G date, pursuant to a hot exchange of words between the                        ""
  parties, Appellant and his two brothers attacked and beat            lo.-
  the deceased with sticks and iron rod. Appellant allegedly
  gave a stick blow on the head of the deceased due to
                                                                              1,..
  which he received bleeding injury and subsequently died
H                             916

                                                                              ~
           SHAIKH AZIM @VAKIL@ KUKU v. STATE OF            917
                       MAHARASHTRA

    as a result thereof. PW4, the doctor, who conducted the      A
    post-mortem examination opined that the injury on the
    head of the deceased was sufficient in the ordinary course
    of nature to cause death and also opined that the said
    injury was possible by stick. The Trial Court convicted
    Appellant under s.302 IPC and one of his brothers under      B
    s.325 IPC, but acquitted the other brothers. High Court
    upheld the conviction of appellant. Hence the present
    appeal.
         Allowing the appeal, the Court
                                                                 c
         HELD:1. PWs. 1 and 3 were witnesses of the occur-
    rence. PW6 stated about the hot exchange of words which
    were going on. All the witnesses stated that Appellant had
    assaulted the deceased. Their evidence does not suffer
    from any infirmity. [Para 6] [921 F - G]
                                                                 D
          2.1. For bringing in operation of Exception 4 to s.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 hav- ·
    ing taken undue advantage and not having acted in a cruel E
    or unusual manner. [Paras 7,8] [921 H - 922 -A]
          2.2. The Fourth Exception to s.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. F
    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-con-
    trol, in case of Exception 4, there is only that heat of pas-
    sion which clouds men's sober reason and urges them G
    to deeds which they would not otherwise do. There is
    provocation in Exception 4 as in Exception 1; but the in-
    jury done is not the direct consequence of that provoca-
    tion. In fact Exception 4 deals with cases in which not-
    withstanding that a blow may have been struck, or some H
•
'
    918      SUPREME COURT REPORTS             [2008] 10 S.C.R.
                                                                  ?

A   provocation given in the origin of the dispute or in what-
    ever way the quarrel may have originated, yet the subse-
    quent conduct of both parties puts them in respect of guilt
    upon equal footing. [Para 9] [922 A-D]
         2.3 A "sudden fight" implies mutual provocation and      "(
B 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
c 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 ag-
  gravated it by his own conduct it would not have taken
  the serious turn it did. There is 'then mutual provocation             r
                                                                          '
                                                                         ~·
D and aggravation, and it is difficult to apportion the share
  of blame which attaches to each fighter. The help of Ex-
  ception 4 can be invoked if death is caused ( a) without
  premeditation; (b) in a sudden fight; ( c ) without the of-
  fender having taken undue advantage or acted in a cruel
E or unusual manner; and ( d ) the fight must have been
  with the person killed. [Para 9] [922 D-H]
       2.4 To bring a case within Exception 4, all the ingre-
  dients mentioned in it must be found. It is to be noted that
  the "fight" occurring in Exception 4 to Section 300 IPC is
F not defined in IPC. It takes two to make a fight. Heat of       ....

  passion requires that there must be no time for the pas-
  sions 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
G 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 of     ""'
  fact and whether a quarrel is sudden or not must neces-
  sarily depend upon the proved facts of each case. For
H the application of Exception 4, it is not sufficient to show
              SHAIKH AZIM @VAKIL@ KUKU v. STATE OF             919
                MAHARASHTRA [DR ARIJIT PASAYAT, J.]

      that there was a sudden quarrel and that there was no          A
      premeditation. It must further be shown that the offender
      has not taken undue advantage or acted in cruel or un-
      usual manner. The expression "undue advantage" a$
      used in the provision means "unfair advantage". [Para 9]
      [922 H- 923 D]                                                 B
           Sandhya Jadhav v. State of Maharashtra (2006) 4 SCC
      653 - relied on.
           3. When the factual scenario is considered in the
      background of legal principles set out above, the inevi-
      table conclusion is that the appropriate conviction would      c
      be under s.304 Part I IPC. Custodial sentence of 10 years
      should meet the ends of justice. [Para 11] [923 D-E]
           CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
      No. 868 of 2007
                                                                     D
           From the Judgment and Order dated 25.11.2002 of the
      High Court of Judicature at Bombay, Nagpur Bench, Nagpur in
      Criminal Appeal No. 183/1990
          Kishore Lambat, Devan Lambat and R.S. Lambat for the
      Appellant.                                                     E

           Ravindra Keshavrao Adsure for the Respondent.
           The Judgment of the Court was delivered by
f,
            Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
                                                                      F
      the judgment of the Division Bench of the Bombay High Court,
      Nagpur Bench, upholding conviction of the appellant for offence
      punishable under Sections 302 of the Indian Penal Code, 1860
      (in short the 'IPC') as was awarded by the 9th Additional Ses-
      sions Judge, Nagpur. Three persons faced trial. They are Sk.
      Rahim(A-1), Sk. Azim (A-2) and Sk Ibrahim (A-3). A-1 was ac- G
-,;   quitted and A-3 was convicted for offence punishable under
      Section 325 IPC.
           2. Background facts in a nutshell are as follows:
           The house of Abdul Jabbar Qureshi (hereinafter referred   H
    920      SUPREME COURT REPORTS ·              · [2008] 10 S.C.R.


A to as the 'deceased') was adjacent to the house of the appel-
  lant/accused in Nava Nakasha, Lashkaribagh, Nagpur. At the
  relevant time, the appellant along with his two brother i.e. Sk.
  Rahim.and Sk. Ibrahim as well as his parents and grand father
  were residing in the same house. According to the prosecution,
B about four months prior to the incident in question, the relations
  between the family of the deceased and the accused were
  strained, since the family members of the deceased allegedly
  threw filth from their side of the house into the courtyard of the·
  house of the accused. The family members of the deceased
c questioned the conduct of the family members of the accused.
  However. the appellant and his family members did not pay heed
  to this aspect.
        The incident ir:i question took place on 8.8.1986 at about
  12.00 noon. The deceased and his son Abdul Khaliq were
D present in their house along with other family members. At that
  time they noticed that some filth has been thrown by somebody
  in the backyard of their house from the side of the house of the
  accused. The deceased and his family members, therefore, got
  angJy1i:md expressed their displeasure in loud and strong words.
E The family members of the accused heard the words used by
  the family members of the deceased and, therefore, the lady
  members of the family of the accused started abusing the de-
  ceased and his family members in filthy language. Then the de-
  ceased and his son Abdul Kha liq came out of their house. The
F accused persons along with their grand father Shaikh Ahmed
  also came out of their house. Accused Sk. Azim (appellant) was
  holding a Stick, accused Sk. Ibrahim was holding an iron rod
  and accused Sk. Rahim was also holding a stick in his hand.
  Accused Azim gave a stick blow on the head of the deceased
G due to which he received bleeding injury. Abdul Khaliq, son of
  the deceased, rushed to rescue his father. All the accused at-
  tacked him and beat him with iron rod and stick on his head
  and abdomen. Abdul Khaliq received injuries on his person.
  The persons from the locality gathered and rescued them from
  the accused. The deceased had become unconscious because
H
        SHAIKH AZIM @VAKIL@ KUKU v. STATE OF                 921
          MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

of the blow which was given by accused no.2, the appellant on               A
the head of the deceased. His condition was serious. There-
fore, he was sent to Mayo hospital. The deceased succumbed
to the injuries on the next day i.e. on 9.3.1986 at about 3.30
p.m.
      The dead body of the deceased was referred to the doc-                B
tor for post mortem examination. Dr. Deuskar (PW4) conducted
the post mortem examination and opined that the injury on the
head of the deceased was sufficient in the ordinary course of
nature to cause death and also opined that the said injury is
possible by the weapon like stick (lathi).                                  C
     3. The conviction was challenged before the High Court,
which as noted above, dismissed the same. The present ap-
peal has been filed by A2.
       4. Learned counsel for the appellant in support of the ap-           D
peal submitted that the prosecution version is not cogent. The
                                                                        1



evidence of PWs. 3 and 6 should not have been relied upon
though they claim to have witnessed the incident. In any event,
it is submitted that the offence is not covered by Section 302
IPC. The occurrence took place during the course of a sudden                E
quarrel.
     5. Learned counsel for the respondent-State supported the
judgment of the courts below.
     6. So far as evidence of eye witnesses is concerned, PWs.      1
                                                                            F
1 and 3 were the witnesses of the occurrence. So far as PW6
is concerned, he has stated about the hot exchange of words
which were going on. All the witnesses have stated that A-2
had assaulted the deceased. Their evidence does not suffer
from any infirmity.                                                         G
      7. In essence the stand of learned counsel for the appel-
lant is that Exception IV to Section 300 IPC would apply to the
facts of the case.
     8. For bringing in operation of Exception 4 to Section 300             H
                                                                           ~   I




    922       SUPREME COURT REPORTS                   [2008] 10 S.C.R.


A   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 witho.ut the offender having taken undue advan-
    tage and not having acted in a cruel or unusual manner.
          9. The Fourth Exception to Section 300 IPC covers acts
8   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
C   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
    done is not the direct consequence of that provocation. In fact
D   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
E   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
    would be Exception 1. There is no previous deliberation or de-
F   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 it did. There is
    then mutual provocation and aggravation, and it is difficult to
G   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 per-
H   son killed., To bring a case within Exception 4 all the ingredients
               SHAIKH AZIM @VAKIL@ KUKU v. STATE OF                923
                 MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

      mentioned in it must be found. It is to be noted that the "fight" A
      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 ac-
      count of the verbal altercation in the beginning. A fight is a com-s
      bat between two or more persons whether with or without weap-
      ons. It is not possible to 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 de-
      pend upon the proved facts of each case. For the application of C
      Exception 4, it is not sufficient to show that there was a sudden
      quarrel and that 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".
                                                                          D
            10. The above position is highlighted in Sandhya Jadhav
      v. State of Maharashtra (2006) 4 SCC 653).
            11. When the factual scenario is considered in the back-
      ground of legal principles set out above, the inevitable conclu-
      sion is that the appropriate conviction would be under Section     E ,
      304 Part I IPC. Custodial sentence of 10 years should meet the
      ends of justice.
           12. Appeal is allowed to the aforesaid extent.
      B.B.B.                                         Appeal allowed .




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