BUDDU KHAN versus STATE OF UTIARAKHAND

Citation: [2009] 1 S.C.R. 178 · Decided: 12-01-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Judgment (excerpt)

[2009] 1 S.C.R. 178 
A 
BUDDU KHAN 
'" 
v. 
STATE OF UTIARAKHAND 
(Criminal Appeal No. 39 of 2009) 
B 
JANUARY 12, 2009 
[DR. ARIJIT PASAYAT AND ASOK KUMAR 
GANGUL Y, 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 c 
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 
D 
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 
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 
A 
SUPREME COURT REPORTS 
Case Law Reference: 
(2003) 5 Supreme 223 Relied on. 
(2004) 11 SCC 381 
Relied on. 
(2007) 11 sec 218 
Relied on. 
(2009] 1 S.C.R. 
Para 8 
Para 8 
Para 8 
B 
CRIMINAL AP PELLA TE 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 
0 Respondent. 
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 c

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