LexSHAIKH AZIM @ VAKIL @ KUKU versus STATE OF MAHARASHTRA
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A B [2008] 10 S.C.R. 916 SHAIKH AZIM @ VAKIL @ KUKU II. STATE OF MAHARASHTRA (Criminal Appeal No.868 of 2007) JULY 14, 2008 [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 the deceased with sticks and iron rod. Appellant allegedly gave a stick blow on the head of the deceased due to which he received bleeding injury and subsequently died H 916 •, ~ "" lo.- 1,. ~ ' • 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 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] c 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] B 2.3 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 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. Th
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