LexVISHAL SINGH versus STATE OF RAJASTHAN
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[2009] 3 S.C.R. 444 A VISHAL SINGH v. ST ATE OF RAJASTHAN (Criminal Appeal No. 414 of 2002) B FEBRUARY 25, 2009 [DR. ARIJIT PASAYAT, V.S. SIRPURKAR AND ASOK KUMAR GANGUL Y, JJ.] ' Penal Code, 1860: c - Sections 302, 341 - Exception 4 to s.300 - Trial Court convicting accused under s.302 and 341 !PC - High Court upholding conviction under s.302 - On appeal, Held: In the facts of the case Exception 4 to s.300 has no application - " D Appellant rightly convicted under s.302 !PC. WORDS AND PHRASES: 'Undue advantage', 'unfair advantage' - Meaning of. E The appellant was convicted by the trial court for offences punishable under sections 302 and 341 IPC. The High Court upheld the conviction under s.302 IPC. Hence ~ the appeal. , > Dismissing the appeal, the Court F HELD: 1. 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 G 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 offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue H 444 .. VISHAL SINGH v. STATE OF RAJASTHAN 445 advantage' as used in the provision means 'unfair A advantage'. [Para 7] [449-D-F] Dhirajbhai Gorakhbhai Na yak V". ·State of Gujrat 2003 (5) Supreme 223; Parkash Chand v. State of H.P. 2004 (11) SCC 381; Byvarapu Raju v. State of AP. and Anr. 2007 (11) B SCC 218 and Hawa Singh and Anr. v. State of Haryana SLP (Crl.) No.1515/2008 disposed of on 15.1.2009, relied on. 2. In the instant case the High Court noted that the accused appellant was armed with knife and standing with his friends and accosted the deceased and PW-6. C They were labelled thieves and after abusing them, accused persons started search of their persons which was ordered by the present appellant. When the deceased resisted he was not only thrashed but also given fatal injury on his chest with such force that it D penetrated upto lower lobe of lung as also pericardium resulting in his death. There was no evidence of any scuffle much less sudden fight or sudden quarrel or altercation between the parties. It was the right of the deceased and PWs 6 and 7 to resist their personal search E because they were not armed. That being so, Exception 4 to Section 300 IPC has no application to the facts of the case. The appellant has been rightly convicted in terms of Section 302 IPC. [Para 8] [449-G-H; 450-A-C] Case Law Reference: 2003 (5) Supreme 223 relied on 2004 (11) sec 381 2001 (11) sec 218 relied on relied on Para 7 Para 7 Para 7 CRIMINAL. AP PELLA TE JURISDICTION : Criminal Appeal No. 414 of 2002. From the Judgment & Order dated 10.8.01 of the High F G H 446 SUPREME COURT REPORTS [2009] 3 S.C.R. .,_ A Court of Judicature for Rajasthan at Jodhpur in Crl. Appeal • No. 596/1997. Mahabir Singh, Rakesh Dahiya, Nikhil Jain and Ajay Pal for the Appellants. B Manish Singhvi, AAG(Raj.) Milind Kumar and Aruneshwar Gupta for the Respondent. The Judgment of the Court was delivered by c OR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the judgment of Rajasthan High Court, Jodhpur Bench upholding the conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC'). The accused alongw~h four others faced trial. While the accused faced trial for alleged commission of offences • D punishable under Sections 302 and 341 IPC, others faced trial for offence punishable under Sections 323 and 341 IPC. 2. The learned Special Judge SC/ST Act Cases, Jodhpur, held the appellant guilty of offence punishable under Sections E 302 and 341 IPC. We are not concerned with the conviction and sentence in respect of other accused persons. 3. Prosecution version in a nutshell is as follows: , > F At 8.00 p.m. on 5.12.1996 in the city of Jodhpur P. Mukesh ~PW-6) with his uncle Chetan Prakash (PW-7) as also his father Kaluram (since deceased) went to Railway Stadium on bicycles to bring waste meals discarded by the marriage party for their pigs. At about 10.15 p.m. they were coming back from the Railway Stadium in two bicycles and the waste meals G near S.P.S. School. By the side of the road, five persons were "~ standi
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