IMPORTANT POINT
Help of Exception 4 of Section 300 IPC can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) with the offender s having taken undue advantage or acted in a cruel or unusual manner and (d) the fight must have been with person killed.

Headnote:(i) Indian Penal Code, 1860-Section 302-Appellant assaulted deceased while deceased was sleeping in varandah of his house-PW 1 and PW 3, wife and 10 year old son of deceased, hearing shouts for help came out of room and saw appellant assaulting deceased-Incident took place at 4 a.m. and FIR was lodged at 5.15 a.m. -Merely because PW 3 s name did not figure in FIR, case did not become suspicious-No discrepancy in medical evidence vis-a-vis ocular evidence except in respect of injury No. 1 where there appeared to be some confusion and that did not dilute prosecution case-Conviction could not interfered with.
       (ii) Indian Penal Code, 1860-Section 300 Exception 4th-To attract exception it must be established that act was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel without offender having taken undue advantage-Where deceased was assaulted while he was sleeping exception had no application.
       Held : 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 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 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 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 . (Para 9)

JUDGMENT

Arijit Pasayat, J.-One Hasmukhbhai Patel (hereinafter referred to as the deceased ) was the victim of homicidal death on 12.8.1993. The appellant Dhirajbhai was alleged to be the assailant. The learned Additional Sessions Judge, Surat, held him guilty of offence punishable under Section 302 of Indian Penal Code, 1860 (for short IPC ) and sentenced to suffer imprisonment for life and to pay fine of Rs. 2000/- with default stipulation. It was further directed that in case fine is paid, the same is to be paid to the deceased s widow Dahiben as compensation. Appeal before the High Court of Gujarat did not bring any relief to the accused-appellant and by the impugned judgment conviction and sentence were upheld.

2. Accusations which led to trial of the accused-appellant are as follows :

Dahiben (PW 1) and the deceased were staying in house No. 7/1427 situated in Dhastripuara in the city of Surat with her two sons Dhanesh (PW 3) and Narendra. About 10 days prior to the date of occurrence accused-appellant had taken his small daughter to the in-law s house and have kept her there. On his return, the deceased scolded him for leaving a small child at a distant place and the accused was very angry for this interference in his personal matters and that led to quarrels - first verbal and then physical. Subsequently on the date of occurrence at about 1.30 p.m. when the deceased was sitting at a temple accused-appellant warned him and challenged him saying if he wanted to fight he was ready for the same. This resulted in exchange of words and a fight. Resident of the locality and PW1 separated them. In the evening Naranbhai (PW 8), a friend of deceased came to the house of deceased and told Dahiben that since the quarrel was going on in the house, he would take the deceased for seeing a movie. PW 1 agreed and both PW 8 and deceased went to see a movie late in the night. As it was mid night when they got back, PW 8 and deceased slept on verandah of the house while PW 1 and 3 slept inside the house. At about 4.00 p.m. in the morning on hearing shouts for help PW 1 opened the door and went outside. In the meantime PW 3 also woke up and he joined his mother outside the house. They saw the deceased in bleeding condition. They also found the accused-appellant delivering blows on the deceased. PW 1 called out his name and asked him as to why he was doing this and if there was any problem, that could be sorted out in the morning. The appellant on hearing this immediately ran away. PW 1 went out and asked for help from the neighbours. Many of them came to her house. The deceased was taken to hospital where he breathed his last at about 4.45 a.m. First information report was lodged at the police station at 5.15 a.m. Investigation was undertaken and charge sheet was placed on completion of investigation. Ultimately, the matter came to trial by learned Additional Sessions Judge, Surat. Ten witnesses were examined to further the prosecution version. Testimony of PWs 1 and 3 was accepted to be credible and as noted above, learned Trial Judge convicted and sentenced the accused. The High Court in appeal, did not interfere.

3. Learned counsel for the appellant submitted that the Trial Court as well as the High Court lost sight of certain salient features of the case. The accused has taken a definite plea that PW 1 and PW 8 were the authors of the crime as they had an illicit relationship which was not liked by the deceased. On the night of occurrence they attacked the deceased and his life was snuffed out. Strong reliance was placed on the evidence of PW 2 who resiled from his statement made during investigation. It was submitted that evidence of such witness is not necessarily to be wiped out and that portion of evidence which helps either the prosecution or the defence can be taken note of. Presence of Dhanesh (PW 3) at the spot is clearly ruled out the evidence of PW 1. Additionally the medical evidence more particularly testimony of Dr. Rajivbha

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2003 Supreme(SC) 653

IMPORTANT POINTHelp of Exception 4 of Section 300 IPC can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) with the offender s having taken undue advantage or acted in a cruel or unusual manner and (d) the fight must have been with person killed.

Cases Referred (2)

IMPORTANT POINT
Help of Exception 4 of Section 300 IPC can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) with the offender s having taken undue advantage or acted in a cruel or unusual manner and (d) the fight must have been with person killed.