Supreme Court of India
SHAIKH MAJID AND ANR.versusSTATE OF MAHARASHTRA AND ORS.
- Citation
- 2008 INSC 74
- Decided
- 21 January 2008
- Disposal
- Case Partly allowed
- Bench
- ARIJIT PASAYAT
Holding
The appropriate conviction is under Section 304 Part I of the IPC, not under Section 302.
Summary
During the Deshara festival, a group of Hindu villagers performing pooja at a temple were attacked by a large crowd from a nearby mosque who pelted stones and urged them to leave for prayer. The accused, numbering 32, along with others, assaulted the villagers with sticks, stones and knives, causing serious injuries and one death. The trial court convicted the accused of murder under s.302 read with s.34 and also under s.324; the High Court affirmed. On appeal, the accused argued that the prosecution failed to explain injuries on the accused and that the incident constituted a "sudden fight" falling under Exception 4 to s.300, warranting conviction under s.304 Part I instead of murder. The Supreme Court held that non‑explanation of injuries does not defeat a clear prosecution case and that all ingredients of Exception 4 were not satisfied; given the background and the use of a small knife, the proper conviction is under s.304 Part I IPC. The conviction was altered to ten years’ imprisonment.
Issues considered
- The effect of the prosecution's failure to explain injuries sustained by the accused on the conviction.
- Whether the facts constitute a "sudden fight" under Exception 4 to s.300 IPC, justifying conviction under s.304 Part I instead of s.302 IPC.
- Whether a single blow in a sudden quarrel can be treated as murder under s.302 IPC.
Legislation cited
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 300, s. 302, s. 304(Part I), s. 307, s. 323, s. 324, s. 34, s. 435, s. 452
- Religious Institutions (Prevention of Misuse) Act, 1988s. 3, s. 4
Subjects
murderculpable homicideException 4sudden fightnon‑explanation of injuriesIPCcommunal violenceconviction alteration
Judgment
[2008] 1 S.C.R. 964
-:r- SHAIKH MAJID AND ANR. A
v.
STATE OF MAHARASHTRA AND ORS.
(Criminal Appeal No. 132 of 2008)
JANUARY 21, 2008
B
[DR. ARIJIT PASAYAT AND AFTAB ALAM, JJ.]
)
Penal Code, 1860:
-+
s. 300, Exception 4, 304 (Part-1) - Sudden fight resulting
in death of one and serious injuries to others - Deceased, c
PW-4 and other villagers performing pooja in temple -
Accused persons and large number of persons from mosque
adjacent to the temple started pelting stones exhorting them
to leave the place immediately as they had to offer namaz -
Accused persons assaulted PW-4 and others with knives - D
Causing serious injuries to many and death of one -
'_. Conviction by trial court under s.302 r.w. s.34 - Affirmed by
High Court - On appeal, Held: Considering background facts
and nature of weapon used i.e. small knife, the appropriate
conviction would be under s.304 Part I and not s.302 - E
Accordingly conviction altered.
s.302 -Applicability of, when single blow given.
Criminal trial:
·-·- Non-explanation of injuries on accused - Effect on F
' prosecution case.
Words and phrases:
"fight', 'sudden fight' and 'undue advantage' - Meaning of
- In the context of s.300, Exception 4 /PC. G
'"I-,
The prosecution case was that the first informant PW-
4 and about 200 villagers were performing pooja in a
temple on the event of Deshahra festival. After pooja, they
964 H
965 SUPREME COURT REPORTS [2008] 1 S.C.R.
A entered the gate of village and went to the Ram and Maruti ..., ....
temples for offering their prayers. At that time, about 250-
300 people from mosque, adjacent to Ram temple started
pelting stones at them. While pelting stones they were
exhorting that it was time for offering prayer and they
B should leave the place immediately. 32 accused persons·
along with 200-250 persons assaulted them with sticks,
stones, knives etc. The assault was on the people r
belonging to Hindu religion. PW-4 was assaulted by •
accused no.1 and 26 with knives. Other persons also
c sustained serious injuries. One person died. A case was
registered against accused persons under ss.307, 147,
148, 149 and 323 IPC. The trial court convicted appellants
under s.302 r.w. s.34 IPC and also under s.324 IPC, which
was affirmed by the High Court.
D In appeal to this Court, appellants contended that
1
there were injuries on the accused which were not ~
explained by the prosecution and in alternate, s.302 IPC
would not attract to facts of the case and Exception 4 to
s.300 IPC would apply as there was only one blow and
E that too in the course of sudden quarrel.
Partly allowing the appeal, the Court
HELD: 1.1 Non-explanation of the injuries on the
accused by the prosecution may assume greater
F importance where the defence gives a version which
competes in probability with that of the prosecution. But
/.
.where the evidence is clear, cogent and creditworthy and
where the court can distinguish the truth from falsehood,
the mere fact that the injuries are not explained by the
prosecution cannot by itself be a sole basis to reject such
G
evidence, and consequently, the whole case. Much ,....,.
depends on the facts and circumstances of each case.
[Para 9] [972-F-H; 973-A]
1.2. Non-explanation of injuries by the prosecution
H will not affect the prosecution case where injuries
SHAIKH MAJID AND ANR. v. STATE OF 966
MAHARASHTRA AND ORS.
sustained by the accused are minor and superficial or A
r where the evidence is so clear and cogent, so
independent and disinterested, so probable, consistent
and creditworthy, that it outweighs the effect of the
omission on the part of the prosecution to explain the
injuries. When the prosecution comes with a definite case B
that the offence has been committee! by the accused and
proves its case beyond any reasonable doubt, it does
' not become necessary for the prosecution to again
~
explain how and under what circumstances injuries have
been inflicted on the person of the accused. It is more so c
when the injuries are simple or superficial in nature.
I [Para 1OJ [973-8, F-G]
Ram/agan Singh v. State of Bihar (1973) 3 SCC 881;
Hare Krishna Singh v. State of Bihar (1988) 2 SCC 98 - relied
on. D
¥ Mohar Rai v. State of Bihar AIR (1968) SC 1281; Lakshmi
...
Singh v. State of Bihar (1976) 4 SCC 394; Vijayee Singh v.
State of U.P (1990) 3 SCC 190 - referred to.
2.1. Exception 4 to s.300 IPC deals with a case of E
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 F
.,,." 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
G
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
H
967 SUPREME COURT REPORTS [2008] 1 S.C.R.
A of guilt upon equal footing. [Para 14] [974-C-E] -r
2.2. 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 side. For
B 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
c 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
D 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 person killed. To bring a case within Exception 4 all
the ingredients mentioned in it must be found. [Para 14]
E [974-E-H; 975-A-B]
2.3. The word "fight" occurring in Exception 4 to s.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
F worked themselves into a fury on account of the verbal />
altercation in the beginning. A fight is a combat between
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
G 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 that there was
no premeditation. It must further be shown that the
H offender has not taken undue advantage or acted in cruel
SHAIKH MAJID AND ANR. v. STATE OF 968
MAHARASHTRA AND ORS. [PASAYAT, J.]
or unusual manner. The expression "undue advantage" A
.,.. as used in the provision means "unfair advantage" ..
[Para 14) [975-8-D]
Sandhya Jadhav v. State of Maharashtra (2006) 4 SCC
653 - relied on.
B
2.3. It cannot be said that whenever a single blow is
given, that would not attract s.302 IPC. In the instant case
·~ considering the background facts and the nature of the
't weapon used i.e. small knife the appropriate conviction
would be under s.304 Part I IPC and not s.302 IPC. c
Acc;ordingly the conviction is altered. [Paras 16, 17]
I [975-E-F]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 132 of 2008.
D
From the final Judgment and Order dated 24.01.2007 of
~ the High Court of Bombay, Bench at Aurangabad in Criminal
.><
Appeal No. 314of1991.
Shakil Ahmed Syed, Faiyz Ahmad Syed, Mohd. Yasir
Abbasi and Firasat Ali Siddiqui for the Appellants. E
Ravindra Keshavrao Adsure for the Respondents.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
F
-<·
"' 2. Challenge in this appeal is to the judgment of the
Division Bench of the Bombay High Court at Aurangabad,
dismissing the appeal filed by the appellants. By a common
judgment two appeals were disposed of. Both the appeals were
directed against the judgment and order passed by learned Third G
Additional Sessions Judge, Aurangabad, in Sessions Case No.
.,,
~
39 of 1990. Originally there were 37 accused persons in the
Sessions Case who faced trial for offences punishable under
Sections 302, 307, 395, 436, 324, 323, 147, 148 and 149 of
the Indian Penal Code, 1860 (in short the 'IPC'), Section 25 of
H
969 SUPREME COURT REPORTS [2008] 1 S.C.R.
A the Indian Telegraph Act, (in short the 'Telegraph Act') and
Section 3 of Prevention of Damage to Public Properties Act, --r
1984 (in short the 'Public Property Act') and Sections 3 and 4
of the Religious Institutions (Prevention of Misuse) Act, 1988 (in
short the 'Religious Institutions Act'). Learned Trial judge
B convicted the present appellants who were accused Nos.1 and
26 respectively for the offences punishable under Section 302
read with Section 34 and Section 324 read with Section 34
IPC. Imprisonment for life and fine of Rs.1,000/- with default l
stipulations and three years imprisonment and fine of Rs.1,000/ ...
c -with default stipulation were imposed. Appellant No. 2-Shaikh
Abbas was also convicted for offences punishable under Section
452 read with Section 149 IPC and was sentenced to five years'
rigorous imprisonment and fine of Rs.1000/- with default
...
stipulation. He was also convicted for offences punishable under
Section 435 read with Section 149 IPC, and for offences
D
punishable under Section 323 read with Section 149 IPC. The
sentences were directed to run concurrently and it was further :(
~
directed that in case the fine amount was realized, part of it, i.e.
Rs.10,000/-, was to be paid to the widow of Jaynarayan
(hereinafter referred to as the 'deceased'). Three prosecution
E witnesses were also directed to be paid compensation of
Rs.1,000/-. Law was set into motion on the basis of the statement
given by the one Krishna (PW4), Sandu, Police Inspector (PW-
11), recorded the statement which was treated as the First
Information Report (in short the 'FIR.'). The information given by
F him was to the following effect:
,r
"Krishna PW4 has alleged in the first information report
Exhibit 63 that the occurrence in the question took place
on 10.10.1989. On that day at about 4 P.M., he along with
about 200 villagers had been to a temple for darshana
G
and also for performing pooja on the even of Deshara
festival. All of them went to temple and Shami tree near ,-Y .
the cremation ground on the outskirts of village Balanagar,
Tq. Paithan. As usual, the villagers had been to the place
of pooja in a procession with drums etc. After pooja they
H
SHAIKH MAJID AND ANR. v. STATE OF 970
MAHARASHTRA AND ORS, [PASAYAT, J.]
entered the gate of village (Ves) and had been to the Ram A
T-
and Maroti temples for offering their prayers. At this time,
about 250-300 people from mosque, adjacent to Ram
temple, had started pelting stones at them. While pelting
stones they were exhorting that it was a time for offering
prayer (Namaz) and therefore, these people should leave B
the place immediately. Krishna PW4, deceased
Jaynarayan, Pandharinath, Babasaheb and other villagers
have noted the presence of about 3-32 accused persons.
"
.,. According to them, these 32 accused persons along with
200-250 persons assaulted them with sticks, stones,
knives etc. the assault was on the people belonging to
c
Hindu religion. PW 4 Krishna had been assaulted by
accused No. I Shaikh Majid and accused No.26 Shaikh
Abbas with knives. Such assault was on his right hand
and below shoulder, on right shoulder as well as in the
stomach. He suffered wounds. Such stabbing is suffered D
~ by Ranganath, Laxman, Harichand, Gorakh, Hanuman,
"' Uttarm, Bhausaheb, Badri Narayan and Dr. Gopi Kisan
as well as Laxman Shamrao. Other persons also
sustained serious injuries.
E
3. As noted above, on the basis of information given by
Krishna, (PW-4) case was registered under Sections 307, 147,
148, 149 and 323 IPC. Investigation was undertaken and on
completion thereof charge sheet was filed. At this juncture, it is
to be noted that another FIR was lodged at about 6 p.m. by
.... appellant -accused No.1 against Krishna (PW4) and others . F
' Charge sheet thereafter was filed. Undisputedly, there was order
of acquittal in the said case. The trial Court placing reliance on
the evidence adduced, held present appellants guilty of offence
committed punishable under Section 302 read with Section 34
IPC. They were also found guilty of having committed offence G
., . punishable under Section 324 in relation to the injury caused to
." Krishna PW4. As noted above, appellant-Shaikh Majid was also
convicted under various other provisions. The. stand of the
appellants before the High Court was that the evidence of the
so called eye witnesses PWs. 4, 5, 6 & 7 was not consistent. H
971 SUPREME COURT REPORTS [2008] 1 S:C.R.
A Only one blow was given and that in course of a sudden quarrel,
injuries were sustained by the accused persons. The prosecution -t
has, therefore, suppressed the truth. The plea was not accepted
and as noted above their appeal was dismissed.
4. The stand taken by the appellant before the High Court
8 was reiterated.
5. Learned counsel for the State supported the judgment
of the trial Court as affirmed by the High Court. .J.
6. One of the pleas is that the prosecution has not explained
C the injuries on the accused. The issue is, if there is no such
explanation what would be its effect? We are not prepared to
agree with the learned counsel for the defence that in each and
every case where the prosecution fails to explain the injuries
found on some of the accused, the prosecution case should
D automatically be rejected, without any further probe. In Mohar
Rai v. State of Bihar (AIR 1968 SC 1281) it was observed:
(AIR p.1284, para 6) ..
"In our judgment the failure of the prosecution to offer any
explanation in that regard shows that evidence of the
E prosecution witnesses relating to the incident is not true
or at any rate not wholly true. Further those injuries
probabilise the plea taken by the appellants."
7. In another important case Lakshmi Singh v. State of
F Bihar (1976 (4) SCC 394) after referring to the ratio laid down
in Mohar Rai case (supra) this Court observed: (SCC p.401, ,, ~
para 12):
"Where the prosecution fails to explain the injuries on the
accused, two results follow: (1) that the evidence of the
G prosecution witnesses is untrue; and (2) that the injuries
probabilise the plea taken by the appellants."
8. It was further observed that: (SCC p. 401, para 12)
"In a murder case, the non-explanation of the injuries
H sustained by the accused at about the time of the
SHAIKH MAJID AND ANR. v. STATE OF 972
MAHARASHTRA AND ORS. [PASAYAT, J.]
occurrence or in the course of altercation is a very A
important circumstance from which the court can draw the
following inferences:
(1) that the prosecution has suppressed the genesis and
the origin of the occurrence and has thus not
presented the true version; 8
(2) that the witnesses who have denied the presence of
the injuries on the person of the accused are lying on
a most material point and therefore their evidence is
unreliable; c
(3) that in case there is a defence version which explains
the injuries on the person of the accused it is rendered
probable so as to throw doubt on the prosecution
case.
D
The omission on the part of the prosecution to explain the
injuries on the person of the accused assumes much
greater importance where the evidence consists of
interested or inimical witnesses or where the defence gives
a version which competes in probability with that of the E
prosecution one."
9. In Mohar Rai case it is made clear that failure of the
prosecution to offer any explanation regor ig the injuries found
on the accused may show that the evidence related to the
incident is not true or at any rate, not wholly true. Likewise in F
Lakshmi Singh oase, it is observed that any non-explanation of
the injuries on the accused by the prosecution may affect the
prosecution case. But such a ~on-explanation may assume
greater importance where the defence gives a version which
competes in probability with that of the prosecution. But where G
the evidence is clear, cogent and creditworthy and where the
court can distinguish the truth from falsehood, the mere fact that
the injuries are not explained by the prosecution cannot by itself
be a sole basis to reject such evidence, and consequently, the
whole case. Much depends on the facts and circumstances of H
973 SUPREME COURT REPORTS [2008] 1 S.C.R.
A each case. These aspects were highlighted by this Court in
Vijayee Sing/1 v. State of UP (1990 (3) SCC 190). -r·
10. Non-explanation of injuries by the prosecution will not
affect the prosecution case where injuries sustained by the
accused are minor and superficial or where the evidence is so
B clear and cogent, so independent and disinterested, so
probable, consistent and creditworthy, that it outweighs the effect
of the omission on the part of the prosecution to explain the ~
injuries. As observed by this Court in Ramlagan Singh v. State
of Bihar (1973 (3) SCC 881) the prosecution is not called upon
•
c in all cases to explain the injuries received by the accused
persons. It is for the defence to put questions to the prosecution
witnesses regarding the injuries on the accused persons. When
that is not done, there is no occasion for the prosecution
witnesses to explain any injury on the person of an accused. In
D Hare Krishna Singh v. State of Bihar (1988 (2) SCC 98), it was
observed that the obligation of the prosecution to explain the
injuries sustained by the accused in the same occurrence may ..\
not arise in each and every case. In other words, it is not an
invariable rule that the prosecution has to explain the injuries
E sustained by the accused in the same occurrence. If the
witnesses examined on behalf of the prosecution are believed
by the court in proof of guilt of the accused beyond reasonable
doubt, question of obligation of the prosecution to explain injuries
sustained by the accused will not arise. When the prosecution
F comes with a definite case that the offence has been committed
by the accused and proves its case beyond any reasonable
doubt, it becomes hardly necessary for the prosecution to again
explain how and under what circumstances injuries have been
inflicted on the person of the accused. It is more so when the
injuries are simple or superficial in nature.
G·
11. The residual question is the applicability of Section ~
-
302 IPC. As noted above it was submitted that only one blow ('
was given and that too in the course of a sudden quarrel.
12. In essence, the stand of learned counsel for the
H
SHAIKH MAJID AND ANR v. STATE OF 974
MAHARASHTRA AND ORS. [PASAYAT, J]
',.- appellant is that Exception IV to Section 300 IPC would apply A
to the facts of the case.
13. 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
8
advantage and not having acted in a cruel or unusual manner.
'.><.
'> 14. The Fourth Exception to 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 c
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 reason and
D
) ... urges them to deeds which they would not otherwise do. There
.I
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 E
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 side. F
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 G
' [ .., 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 H
975 SUPREME COURT REPORTS [2008] 1 S.C.R. (
A offender 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
B 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 account of the verbal altercation in the beginning. A ..
fight is a combat between two or mo re persons whether with or
c 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
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 that there was no premeditation.
D
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".
E 15. The above position is highlighted in Sandhya Jadhav
v. State of Maharashtra (2006) 4 SCC 653).
16. It cannot be said that whenever a single blow is given,
that would not attract Section 302 IPC.
F 17. In the instant case considering the background facts ?f
and the nature of the weapon used i.e. small knife the appropriate
conviction would be under Section 304 Part I IPC and not
Section 302 IPC. Accordingly the conviction is altered, custodial
sentence of ten years would suffice.
G 18. The appeal is allowed to the aforesaid extent.
..,..
D.G. Appeal partly allowed. '
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