Kashi Prashad vs Sttate Of U.P

8. For bringing in its operation 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 having taken undue advantage and not having acted

in a cruel or unusual manner.

9. The Fourth Exception of 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 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 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 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 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 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 would not

have taken the serious turn it did. There is then mutual

11 provocation and aggravation, and it is difficult to apportion the

share 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 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 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 no 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 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 advantage' as used in the provision means

`unfair advantage'.

10. Considering the factual scenario as projected by the

prosecution, the proper conviction would be under Section

304 Part I IPC. Custodial sentence of 10 years would meet the

ends of justice.

11. The appeal is allowed to the aforesaid extent.

..........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (P. SATHASIVAM)

..........................................J. (Dr. MUKUNDARAM SHARMA) New Delhi,

July 16, 2008

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