THANKACHAN AND ANR. versus STATE OF KERALA

Citation: [2007] 11 S.C.R. 1128 · Decided: 13-11-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Judgment (excerpt)

~· 
\ 
A 
THANKACHAN AND ANR. 
v. 
STA TE OF KERALA 
NOVEMBER 13, 2007 
B 
t· 
[DR. ARIJIT PASA YAT AND P. SATHASIV AM, JJ.] 
Penal Code, 1860: 
c 
s.300 exception 4, s. 302, ands. 304 Part (1)-Applicability of 
s.300 exception·4-Held: Is applicable when act is covered without 
premeditation, in a sudden fight-Besides, offender should not have 
taken undue advantage or acted in a cruel/unusual manner and fight 
must have been with the person killed-On facts, sudden fight between 
D the accused and deceased, mutual provocation and blows on each 
side-On exhortation by one accused, the other stabbing the deceased 
with knife resulting in his death-Courts below convicting under s. 302 
rlw s.34 and imposing life imprisonment-In the facts of the case, 
conviction altered.from s. 302 to s.304 Part (1)-Custodial sentenr;e 
E altered to ten years. 
s.300 exception 1and4-Distinction between-Explained. 
Words and phrases: 
'Fight', 'suddenfight' and 'undue advantage '-Meaning of-In 
F the context of Exception 4 to Section 300 JPC. 
-1 
According to the prosecution case, on the fateful day, accused 
A 1-A 4 came to the house of deceased. A2 caught hold of deceased 
and dragged him. A2 hit the deceased on his head with the bottle. 
G The deceased also hit A2 on the head with the bottle. On exhortation 
by Al, A2 and A4 inflicted injuries to deceased on his head with 
chopper and A3 stabbed deceased with knife. The deceased became 
~ 
unconscious and later succumbed to his injuries. Trial court convicted 
the accused under section 302 read with s.34 IPC and imposed life 
H 
1128 
r
/ 
}-
THANKACHANv. STATE 
1129 
imprisonment. High Court allowed the appeals filed by Al and A4, A 
however dismissed the appeals filed by appellants-Al and A3. Hence 
the present appeal. 
Partly allowing the appeal, the Court 
HELD: 1.1. The Exception 4 to section 300 IPC can be invoked B 
if death is caused (a) without premeditation; (b) in a sudden fight in 
the heat of passion upon a sudden quarrel; (c) withoutthe 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 C 
found. (Para 10] [1133-G, H; 1134-A] 
1.2. 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 place would have D 
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 urges them to deeds which they would not 
otherwise do. There is provocation in Exception 4 as in Exception E ' 
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 originated, yet the subsequent conduct of both F 
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. For if if were so, the Exception more appropriately G 
' 
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 conduct it 
H 
1130 
SUPREME COURT REPORTS . [2007] 11 S.C.R. 
A 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. [Para 10) 
1.3. Word "fight" occurring in Exception 4 to section 300 IPC 
B is not defined in IPC. It takes two to make a fight. Heat of passion 
-+ 
require$. that there must be no time for the passions to cool down 
and in dus 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 more persons whether with or without weapons. It is 
c 
not pos

Excerpt shown. Read the full judgment & AI analysis in Lexace.