Shaikh Azim @ Vakil @ Kuku vs State Of Maharashtra

Supreme Court14 July 2008Arijit Pasayat · P. Sathasivam

Neutral2008 INSC 821
SCR[2008] 10 SCR 916

Ratio decidendi

The rule this decision rests on

Exception 4 to Section 300 IPC operates where a homicide is committed (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. All these ingredients must be established for the exception to apply. A "sudden fight" within Exception 4 implies mutual provocation and blows on each side, where both parties are more or less to be blamed, and there is no previous deliberation or determination to fight. Whether a quarrel is sudden is a question of fact dependent upon the proved facts of each case. The term "undue advantage" in Exception 4 means "unfair advantage," and it is not sufficient to show merely that there was a sudden quarrel and no premeditation; it must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 868 OF 2007

Shaikh Azim @ Vakil @ Kuku ..Appellant

Versus

State of Maharashtra ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of the

Division Bench of the Bombay High Court, Nagpur Bench,

upholding conviction of the appellant for offence punishableunder Sections 302 of the Indian Penal Code, 1860 (in short

the `IPC') as was awarded by the 9th Additional Sessions

Judge, Nagpur. Three persons faced trial. They are Sk.

Rahim(A-1), Sk. Azim (A-2) and Sk Ibrahim (A-3). A-1 was

acquitted and A-3 was convicted for offence punishable

under Section 325 IPC.

2. Background facts in a nutshell are as follows:

The house of Abdul Jabbar Qureshi (hereinafter referred

to as the `deceased') was adjacent to the house of the

appellant/accused in Nava Nakasha, Lashkaribagh, Nagpur.

At the relevant time, the appellant along with his two brother

i.e. Sk. Rahim and Sk. Ibrahim as well as his parents and

grand father were residing in the same house. According to

the prosecution, about four months prior to the incident in

question, the relations between the family of the deceased and

the accused were strained, since the family members of the

deceased allegedly threw filth from their side of the house into

the courtyard of the house of the accused. The family2members of the deceased questioned the conduct of the family

members of the accused. However, the appellant and his

family members did not pay heed to this aspect.

The incident in question took place on 8.8.1986 at about

12.00 noon. The deceased and his son Abdul Khaliq were

present in their house along with other family members. At

that time they noticed that some filth has been thrown by

somebody in the backyard of their house from the side of the

house of the accused. The deceased and his family members,

therefore, got angry and expressed their displeasure in loud

and strong words. The family members of the accused heard

the words used by the family members of the deceased and,

therefore, the lady members of the family of the accused

started abusing the deceased and his family members in filthy

language. Then the deceased and his son Abdul Khaliq came

out of their house. The accused persons along with their

grand father Shaikh Ahmed also came out of their house.

Accused Sk. Azim (appellant) was holding a Stick, accused Sk.3Ibrahim was holding an iron rod and accused Sk. Rahim was

also holding a stick in his hand. Accused Azim gave a stick

blow on the head of the deceased due to which he received

bleeding injury. Abdul Khaliq, son of the deceased, rushed to

rescue his father. All the accused attacked him and beat him

with iron rod and stick on his head and abdomen. Abdul

Khaliq received injuries on his person. The persons from the

locality gathered and rescued them from the accused. The

deceased had become unconscious because of the blow which

was given by accused no.2, the appellant on the head of the

deceased. His condition was serious. Therefore, he was sent

to Mayo hospital. The deceased succumbed to the injuries on

the next day i.e. on 9.3.1986 at about 3.30 p.m.

The dead body of the deceased was referred to the doctor

for post mortem examination. Dr. Deuskar (PW4) conducted

the post mortem examination and opined that the injury on

the head of the deceased was sufficient in the ordinary course

4of nature to cause death and also opined that the said injury

is possible by the weapon like stick (lathi).

3. The conviction was challenged before the High Court,

which as noted above, dismissed the same. The present

appeal has been filed by A2.

4. Learned counsel for the appellant in support of the

appeal submitted that the prosecution version is not cogent.

The evidence of PWs. 3 and 6 should not have been relied

upon though they claim to have witnessed the incident. In

any event, it is submitted that the offence is not covered by

Section 302 IPC. The occurrence took place during the course

of a sudden quarrel.

5. Learned counsel for the respondent-State supported the

judgment of the courts below.

6. So far as evidence of eye witnesses is concerned, PWs. 1

and 3 were the witnesses of the occurrence. So far as PW6 is

5concerned, he has stated about the hot exchange of words

which were going on. All the witnesses have stated that A-2

had assaulted the deceased. Their evidence does not suffer

from any infirmity.

7. In essence the stand of learned counsel for the appellant

is that Exception IV to Section 300 IPC would apply to the

facts of the case.

8. For bringing in operation of Exception 4 to Section 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 having taken

undue advantage and not having acted in a cruel or unusual

manner.

9. 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

6place 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

7 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

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

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

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 or more persons whether with or without

weapons. It is not possible to enunciate any general rule as to

8 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 that 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. The above position is highlighted in Sandhya Jadhav v.

State of Maharashtra (2006) 4 SCC 653).

11. When the factual scenario is considered in the

background of legal principles set out above, the inevitable

conclusion is that the appropriate conviction would be under

Section 304 Part I IPC. Custodial sentence of 10 years should

meet the ends of justice.

12. Appeal is allowed to the aforesaid extent.

................................

.J. (Dr. ARIJIT PASAYAT)

................................J. (P. SATHASIVAM) New Delhi, July 14, 2008

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