LexSAMSUDDHIN SHEIKH versus STATE OF GOA
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[2008] 16 s.C.R. 686 .A SAMSUDDHIN SHEIKH -t- v. STATE OF GOA ··· (Criminal Appeal No. 1875 of 2008) B NOVEMBER 26, 2008 [DR. ARIJiT PASAYATAND DR. MUKUNDAKAM ..;. . ', ~ SHARMA;'· JJ.] ' '. ']( Penal Code, 1860: ' c i s.300 Exception 4, ·s.302 r.w. s.34 and &304 Patt I - Sudden fight between accused an.d deceased - Accused stabbed deceased with a knife - Courts below held accu$ed guilty under s.302 r.w. s.34 - Held: Con,sid~ring factual D background~ appropriate conviction would be under s.304 Part-I and not under S;302 ~ Com;igtion altered accordingly. Prosecution case was that the appellant accused ). and co-accused "'.'ere pic.k pocketers. On the day of 'f incident, deceased.slapped one of them because of which E they threatened the deceased with dire consequences. On the same day rn the evening when deceased was sitting in the market, he heard shouts of ~chor chor' from nearby huts. The deceased rushed towards that direction with another person. On reaching the fields, there was F exchange of hot words between the deceased and the accused and the appellant accu$ed and co-accused "" ....... assaulted him. Appellant took out a knife and stabbed deceased on the chest. The deceased collapsed on the ground. The appellant accused and the co-accused tried G to run away from the scene of offence. But they were accosted and assaulted by the public with rods and kicks. In the meantime, police arrived at the spot and took ~ ..., away deceased as well as both the accused persons to · the hospital. On the way deceased died. H 686 SAMSUDDHIN SHEIKH v. STATE OF GOA 687 -+ The Trial Court convicted appellant under s.302 .r.w. A s.34 IPC. The High Court affirmed the same. Hence the instant appeal. Partly allowing the appeal, the Court HELD: 1.1. The Fourth Exception of Section 300 IPC · B covers acts done in a sudden fight. The said exception deals with a case of prosecution not c~vered by the first . exception, after which its place would have been more appropriate. The exception is founded upon the same I principle, for in both there is absence of premeditation. C 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 D 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 E have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. [Paras 4 and 5] [691-A-D] 1.2. 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 F 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 .G which both parties are more or less to be blamed. !t 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 apportion the share H 688 SUPREME COURT REPORTS [2008) 16 S.C.R. A 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 unusual manner; and (d) the fight must have B 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 takes two to make a fight. Heat of passion requires that c 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 not· possible to 0 enunciate any general rule as to wha
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