Supreme Court of India
SAMSUDDHIN SHEIKHversusSTATE OF GOA
- Citation
- 2008 INSC 1350
- Decided
- 26 November 2008
- Disposal
- Case Partly allowed
- Bench
- ARIJIT PASAYAT
Holding
The killing does not qualify for Exception 4 of Section 300 IPC; the appellant must be convicted under Section 304 Part I IPC.
Summary
Samsuddhin Sheikh and co-accused, pickpockets, stabbed Shashikant Kawade after a verbal altercation that escalated into a sudden fight. The deceased died on the way to the hospital. The trial court convicted them under Section 302 read with Section 34 IPC (murder) and the High Court affirmed. On appeal, the accused contended that the killing occurred in a sudden fight and should fall under Exception 4 of Section 300 IPC, reducing liability to culpable homicide not amounting to murder. The Supreme Court held that the use of a knife, the disproportionate manner of attack and the taking of undue advantage disqualified the case from Exception 4, necessitating conviction under Section 304 Part I IPC. Accordingly, the conviction was altered to culpable homicide not amounting to murder with a ten‑year imprisonment, and the appeal was partly allowed.
Issues considered
- Whether the killing falls within Exception 4 of Section 300 IPC (sudden fight) or constitutes murder under Section 302 read with Section 34.
- Whether the accused took undue advantage or acted in a cruel or unusual manner, thereby negating the benefit of Exception 4.
- Appropriate conviction and sentencing: Section 304 Part I IPC versus Section 302 IPC.
Legislation cited
- Indian Penal Code, 1860s. 300, s. 302, s. 304, s. 34
Subjects
murderculpable homicide not amounting to murderSection 300 Exception 4sudden fightundue advantagecruel or unusual mannerIPCconviction alteration
Judgment
[2008] 16 s.C.R. 686
.A SAMSUDDHIN SHEIKH -t-
v.
STATE OF GOA
··· (Criminal Appeal No. 1875 of 2008)
NOVEMBER 26, 2008
B
[DR. ARIJiT PASAYATAND DR. MUKUNDAKAM ..;.
.
SHARMA;'· JJ.]
'.
', ~
' '](
Penal Code, 1860: '
c s.300 Exception 4, ·s.302 r.w. s.34 and &304 Patt I -
i
Sudden fight between accused an.d deceased - Accused
stabbed deceased with a knife - Courts below held accu$ed
guilty under s.302 r.w. s.34 - Held: Con,sid~ring factual
background~ appropriate conviction would be under s.304
D
Part-I and not under S;302 ~ Com;igtion altered accordingly.
Prosecution case was that the appellant accused ).
and co-accused "'.'ere pic.k pocketers. On the day of 'f
incident, deceased.slapped one of them because of which
E they threatened the deceased with dire consequences.
On the same day rn the evening when deceased was
sitting in the market, he heard shouts of ~chor chor' from
nearby huts. The deceased rushed towards that direction
with another person. On reaching the fields, there was
F exchange of hot words between the deceased and the
accused and the appellant accu$ed and co-accused ""
.......
assaulted him. Appellant took out a knife and stabbed
deceased on the chest. The deceased collapsed on the
ground. The appellant accused and the co-accused tried
G to run away from the scene of offence. But they were
accosted and assaulted by the public with rods and
kicks. In the meantime, police arrived at the spot and took ...,
~
away deceased as well as both the accused persons to ·
the hospital. On the way deceased died.
H 686
SAMSUDDHIN SHEIKH v. STATE OF GOA 687
-+ The Trial Court convicted appellant under s.302 .r.w. A
s.34 IPC. The High Court affirmed the same. Hence the
instant appeal.
Partly allowing the appeal, the Court
HELD: 1.1. The Fourth Exception of Section 300 IPC · B
covers acts done in a sudden fight. The said exception
deals with a case of prosecution not c~vered by the first .
exception, after which its place would have been more
appropriate. The exception is founded upon the same I
principle, for in both there is absence of premeditation. C
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 D
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 E
have originated, yet the subsequent conduct of both
parties puts them in respect of guilt upon equal footing.
[Paras 4 and 5] [691-A-D]
1.2. A 'sudden fight' implies mutual provocation and
blows on each side. The homicide committed is then F
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 .G
which both parties are more or less to be blamed. !t 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 H
688 SUPREME COURT REPORTS [2008) 16 S.C.R.
I
A of blame which attaches to each fighter. The help of l
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
B 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
c 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
0
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
E 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'. Where
the offender takes undue advantage or has acted in a
F cruel or unusual manner, the benefit of Exception 4
cannot be given to him. If the weapon used or the manner
of attack by the assailant is out of all proportion, that
circumstance must be taken into consideration to decide
whether undue advantage has been taken. [Paras 5 and
G 6] [691-B-H; 692-A-E]
Kikar Singh v. State of Rajasthan AIR (1993) SC 2426,
relied on.
2. In the background facts and the legal principles, the
H
·sAMSUDDHIN SHEIKH v. STATE OF GOA 689
inevitable conclusion is that the appellant is to be convicted A
+ under s.304 Part I, IPC. Custodial sentence of 10 years
would meet the ends of justice. [Para 7] [692-F-H]
Case Law Reference:
AIR (1993) SC 2426 relied on Para 6 B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal .
No. 1875 of 2008.
From the Judgment and final Order dated 20.11.2006 of
the High Court of Bombay, Bench at Goa in Criminal Appeal ' C
No. 15 of 2005.
Bimal Roy Jad (A.C.) for the Appellant.
The Judgment of the Court was delivered by
.D
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division
Bench of the Bombay High Court, Bench at Goa upholding the '
conviction of the appellant for offence punishable under Section
302 read with Section 34 of the Indian Penal Code, 1860 (in E
short the 'IPC'). The appellant has faced trial a!ongwith Ashish
Culaco and both were convicted in the aforesaid way. The
accused persons were tried by learned Additional Sessions
Judge, Margao on a charge of having committed murder of one
Shashikant Kawade (hereinafter referred to as the 'deceased') F
by stabbing him with a knife on his chest o:i 18.5.1998 in the ,
night.
2. Prosecution version, in a nutshell, is as follows:
The appellant accused and his colleague Ashish Culaco G
were pick pocketers and on 18.5.1998 the deceased ,
Shashikant Kawade had slapped one of them because of ·
which they had threatened the deceased Shas~ikant Kawade
with dire consequences. On the same day at about 2.00 p.m.
they had visited the room of Shashikant Kawade and in the H
t
690 SUPREME COURT REPORTS [2008] 16 S.C.R. '.
.}
A
. . . . ~
presence of his wife, they provoked him to come out of his
f" > ,. '. r • +
house by abusing ·him but Shashikant Kawade was not
permitted to go out of the h·ouse. The appellant and Ashish left
the place. On the same day in the evening at about 8.15 p.m. \.--
when Shashikant Kawade was sitting outside 'Napolean Bar',
B he heard shouts of 'chor char' from the nearby huts on which
Shashikant Kawade rushed towards· t~at direction followed by
Rafik Go~1 and when he reached in the. field, there was
exchange of hot words in course of a quarrel and appellant . )
~
accused and the c6~accused assaulted him and the ·appellant
,_
c accused took out a knife apd stabbed Shashikant Kawade on
the· chest because of which he. collapsed on the gmund. The .
.:
appellant accused and the co-accused tried to run away from
the scene of offence~· But .they were· accosted "i:md assaulted I
I.
by the public with rods and kicks. In the meantime ·the police
D arrived at the spot and took away injured Shashikant Kawade
~
as well as both the accused persons to the hospital and on the
way he,died. After completing the investigation, charge sheet
t
against the appellant accused and the co-accused was filed }
.:.,l
r
and the matter was committed by the Judicial Mag.istrate, First
E Class~ Margao to the Court of Session. t
Since accused abjured guilt, trial was held. The trial Court
r
relied on the evidence of the prosecution witnesses and
recorded the conviction and imposed sentence as aforesaid. f
F In appeal, the primary standwas that the occurrence took
place in the course of sudden quarrel and, therefore, Section
302 IPC has no application. It is pointed out that the deceased "
..)..-
had slapped the appellant. He was a pick- pocket and in the
course of altercation fighting took place. The High Court did not
find any substance in the plea and dismissed the appeal.
G
The stand taken before the H1gh Court was re-iterated in
."-
i
the present appeal.
y
.3.1.earned counsel fo,r the respondent-~State on the other
hand supported ·the judgment.
H
.
l SAMSUDDHIN SHEIKH v. STATE OF GOA 691
[DR. ARIJIT PASAYAT, J.]
+ 4. For the application of Exception 4 of Section 300 IPC, A
it has to be established that the act was committed without
·" premeditation, in a s~dden fight in the heat of passion upon a
sudden quarrel without the offe~der having. taken undue
advantage and not having acted in a cruel or unusual manner.
5. The Fourth Exception of Section 300 IPC covers acts a
• 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 c:
total deprivation of self-control, in case .Qf 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 D
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 E
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
... appiicable would be Exception 1. The.re is no previous
deliberation or determination to fight. A fight suddenly takes
F'
A-
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
G
• 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
H
692 SUPREME COURT REPORTS [2008] 16 S.C.R.
A 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
fo 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
B 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
'i
possible to enunciate any general rule as to what shall be
deemed to be a sudden quarrel. It is a question of fact and
c whether a quarrel 1s 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
D in cruel or unusual manner. The expression 'undue advantage'
as used in the-provision means 'unfair advantage'.
.4
6. Where the offender takes undue advantage or has acted
:-of-
in a cruel or unusual manner, the benefit of Except,ion 4 cannot
E be given to him. If the weapon used or the manner of attack by
the assailant is out of all .proportion, that circumstance must be
taken into consideration to decide whether undue adv~ntage
has been taken. In Kikar Singh v. State of Rajasthan (AIR 1993
SC 2426) it was held that if the accused used deadly weapons
against the unarmed man and struck a blow on the head it must
F ....
.be held that giving the blows with the knowledge that they were
likely to ca1,1se death, he had taken undue advantage. +--
7. In the background facts as stated in the backdrop of the
legal principles set out above, the inevitable conclusion is that
G the appellant is to be convicted under Section 304 Part I, IPC.
Custodial sentence of 10 years would meet the ends of justice.
y
8. The appeal is allowed to the aforesaid extent.
D.G. Appeal partly allowed.
H
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