SHAMBHOO SINGHversusSTATE OF RAJASTHAN

                          [2008] 11 S.C.R. 85


                         SHAMBHOO SINGH                            A
                                  II.
                      STATE OF RAJASTHAN
                 (Criminal Appeal No. 1134 of 2008)
                           JULY 22, 2008
                                                                   B
..J       [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
                         SHARMA, JJ.]

          Penal Code, 1860:
            ss. 304 (Part I) 447, 307 and 324 - Death and injuries C
      caused - Land dispute between the accused and complain-
      ant parties - Occurrence took place during quarrel and ex-
      change of hot words- Conviction by Courts below u/s 302, 447,
      307 and 324 - On appeal, held: In view of the fact that the
      occurrence took place during course of sudden quarrel, con- D
      viction uls 302 altered to one uls. 304 (Part I) - Conviction
      under other provisions not interfered with - Sentence of life
      imprisonment altered to custodial sentence of 10 years.
          s. 300 Exception 4 - Applicability of - Discussed.       E
          s. 300 - Exception 1 and Exception 4 - Distinction be-
      tween - Discussed.
            Words and Phrases - 'Sudden quarrel' - Meaning of -
      In the context of s. 300 /PC. ·
                                                                F
            Appellant-accused was prosecuted for having
      caused death of a person and causing injuries to eye-
      witnesses. As per prosecution, when the deceased was
      ploughing his field and other eye-witnesses, brothers,
      father and mother of the deceased were working in the G
      field, appellant-accused alongwith his mother and father
      came and objected to their ploughing the field. A quarrel
      ensued and there were exchange of hot words. Appel-
      lant, then stabbed the deceased. He also assaulted the
                                  85                               H
    86       SUPREME COURT REPORTS               [2008] 11 S.C.R.

                                                                    ;;ol.
A eye-witnesses causing injuries to them. Trial Court plac-
  ing reliance on the evidence of the injured eye-witnesses
  convicted the appellant-accused u/ss. 302, 447, 307 and
  324 IPC. For the offence u/s 302 he was sentenced to life
  imprisonment. High Court confirmed the conviction and
B sentence.

        In appeal to this court appellant contended that his        )..

    conviction u/s 302 IPC was not called for as the occur-
    rence took place during the course of sudden quarrel.

c        Partly allowing the appeal, the Court
        HELD: 1. In the background facts, the appropriate
  conviction would be under Section 304 Part I, IPC. Cus-
  todial sentence of 10 years would meet the ends of jus-
  tice. The conviction in respect of other offences and the
D sentences imposed do not suffer from any infirmity to
  warrant interference. [Para~ 8] [92-D & E]
        2.1 For bringing in operation of Exception 4 to Sec-
  tion 300 IPC, it has to be established that the act was com-
E milted 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. For the application of Excep-
  tion 4, it is not sufficient to show that there was a sudden
  quarrel and there was no premeditation. It must further
F be shown that the offender has not taken undue advan-
  tage or acted in cruel or unusual manner. The expression
  "undue advantage" as used in the provision means "un-·
  fair advantage". [PMas 6 and 7] [90-G,H;91-A; 92-B & C]

G       2.2 The Fourth Exception deals with a case of pros-
  ecution not covered by the First Exception, after which
  its place would have been more appropriate. The Excep-
  tion is founded upon the same principle, for in both, there       y
  is absence of premeditation. But, while in the case of Ex-
H ception   1 there is total deprivation of self-control, in case
       SHAMBHOO SINGH v. STATE OF RAJASTHAN                87


of Exception 4, there is only that heat of passion which A
clouds men's sober reasons 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 B
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. [Paras 7] [91-A,B,C & D]                         c
       2.3 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 D
would be Exception 1. There is no previous deliberation
or determination to fight. There is then mutual provoca-
tion and aggravation, and it is difficult to apportion the
share of blame which attaches to each fighter. Heat of
passion requires that there must be no time for the pas- E
sions 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 what F
shall be deemed to be a sudden quarrel. [Paras 7] [91-
D,E,F; 92-A & B]
     CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
No. 1134 of 2008
     From the Judgment and final Order dated 3.1.2007 of the     G
High Court of Judicature for Rajasthan at Jodhpur in D.B. Crl.
Appeal No. 531n003

     Shiv Kumar Suri for the Appellant.

     Ansar Ahmad Chaudhary for the Respondent.                   H
    88          SUPREME COURT REPORTS                 [2008] 11 S.C.R.

A           The Judgment of the Court was delivered by
            Dr. ARIJIT PASAYAT, J. 1. Leave granted.
        2. The appellant questions legality of the judgment ren-
  dered by a Division Bench of the High Court of Rajasthan at
B Jodhpur Bench. The learned Additional Sessions Judge No.2,
  Udaipur found the accused guilty of offence punishable under
  Section 302 ofthe Indian Penal Code, 1860 (in short the 'IPC')
  and sentenced him to undergo RI for life and to pay a fine with
  default stipulation. He was also convicted for offence punish-
C able under.Section 447 IPC and sentenced to undergo 15 days'
  RI. Additionally, he was convicted for offence punishable under
  Section 307 IPC and sentenced to undergo 1O years RI and
  pay a fine of Rs.100/-. Similarly, in respect of offence punish-
  able under Section 324 IPC he was sentenced to undergo RI
D for one year. In appeal, by the impugned judgment, High Court
  confirmed the judgment of conviction and sentence.
            3. Prosecution version as unfolded during trial is as fol-
    lows:
E       On 3.8.1999, Vaje Singh (PW-1) lodged a First Informa-
  tion Report at Police Station Pahara stating, inter-alia that in
  the morning at about 9.00 a.m. his brother Jawan Singh (here-
  inafter referred to as the 'deceased') was ploughing the field.
  He alongwith his father Guiab Singh and elder brother Ram
F Singh was working in the field. At that time, his neighbour ap-
  pellant Shambhoo Singh, his father Som Singh and mother Smt.
  Jeevi arrived there abusing them. Appellant Shambhoo Singh
  was carrying knife in his hand. Som Singh and Smt. Jeevi were
  carrying lathis. They challenged them and questioned as to how
  they were ploughing the field of their possession. There ensued
G a quarrel and exchange of hot words. Appellant Shambhoo
  Singh stabbed the knife on the chest of Jawan Singh. He caused
  another injury by knife on the stomach. On intervention by his
  father, appellant Shambhoo Singh caused injury by knife. He
  also caused injuries to his mother Smt. Shanta and elder brother
H Ram Singh. Appellant Shambhoo Singh also caused injuries to
                    SHAMBHOO SINGH v. STATE OF RAJASTHAN                     89
                           [DR. ARIJIT PASAYAT, J.]
    >.;
          him. Jawan Singh succumbed to the injuries on the spot. It was           A
          stated that there was a land dispute between them, which led to
          the unfortunate incident.
               On this information, police registered a case and pro-
          ceeded with the investigation. The post-mortem of the dead
                                                                                   B
          body was conduced by Dr. Mahendra (PW-17) on the spot vide
          Ex.P-42. He noticed the following injuries on his person:
               1.     An intised stab wound - 2.0 cm x 1.0 cm x perforating
                      up to chest cavity placed in 6th intercostal space
                      below left Nipple place obliquely.                           c
                      On exploration - There is a wound of 1.55. cm x 1.0
                      cm x 2 cm deep left ventricle of the Heart. Cavity full
                      of Blood.
               2.     An incised stab wound - 1.5 cm x 1.0 cm x thoracic           D
                      cavity deep 5 cm lateral to injury No. I placed obliquely.
)
                      On exploration of wound - There is a wound of 1.0
                      cm x 2 cm lung tissue deep placed on the left lung.
                      Thoracic cavity was full of blood.
                                                                                   E
               3.     An incised stab wound - 2.0 cm x 1.0 cm x abdominal
                      cavity deep. On exploration of wound - There was no
                      injury to any Abdominal Viscera. Intestinal loops are
                      protruding through this wound.
               4.     Abrasion- 2.5 cm x 1.0 cm placed on upper 1/3rd on           F
                      medial side of right leg.
               The cause of death was shock due to severe bleeding
               following stab wound to chest and abdomen. The injured
               persons namely PW-1 Vaje Singh, PW-10 Guiab Singh
               and PW-3 Smt. Shanta were sent to the hospital. Their G
               injuries were examined by PW-1 I, Dr. B.P. Verma. He
               examined the injuries of PW-1 Vaje Singh vide Ex. P-12
               and noticed the following injury on his person:
                      Incised wound 4 x 2 x 1 1/2 cm on left gluteus.              H
     90        . SUPREME COURT REPORTS                  [2008] 11 S.C.R.

A         .He also examined the i.njuries of PW-10 Gui.ab Singh vide
           Ex.P -11 and noticedthe following injuries:
          Stab wound transversely with bleeding on left intra
          mammary region 4x 1. x plural cavity deep surgical em pug
          sema left side.
B
           He also examined the injuries of PW=-3 Smt Shanta vide ·         )o.-

           Ex. P'.'"13 and noticed the following injuries:
          Incised wound 1 Yz x 1/2 x Yz cm on-Right-arm M/3·rd Ant.

c         After usual investigation, thE? police .laid charge sheet
     against appellant Shambhoo Singh, his father Som Singh and
     mother Smt. Jeevi for offence under Sections 302, 307, 326.
     324, 447/34 IPC. The accused pers6hs pleaded not guilty of
     the charges levelled against them and claimed trial.
o·        ·The trial Court placing reli~nce on the evidence' of PWs 1 ,
     2, 3 iand 10 found the evidence to be credible ·and cogent. It
     founc;I the evidence of the injured witness to .be ~ithout any blem-
     ish. Accordingly, the trial Court recorded the convic;;tion and sen-
     tence as afore-noted.
E
           In appeal before the High Court, the primary stand taken.
     was that the ocular evidence does not inspire corro.boration. It
     was submitted that in any event offence punish.able under Sec-
     tion 302 IPC is not made out as the occurrence occurred in
F    course of sudden quarrel. The High Court did not find any sub-
     stance and dismissed the appeal.
           4. In support of the appeal, learned counsel for the appel-
     lant submitted that the occurrence took place during the course
     of sudden quarrel and, therefore, Section 302 IPC has ilo ap-
G    plication.
           5. Learned counsel for the respondent-State supported
     the judgments of the trial Court and tha High Court.
          6. For bringing in operation of Exception 4 to Section 300
H    IPC, it has to be established that the act war:: committed without
         SHAMBHOO SINGH v. STATE OF RAJASTHAN                   91
                [DR ARIJIT PASAYAT, J.]

. premeditation, in a sudden fight in the heat of passion upon a A
  sudden quarrel without the offender having taken undue advan-
  tage and not having acted in a cruel or unusual manner.
        7. The Fourth Exception to Section 300 IPC covers acts
 done in a sudden fight. The said Exception deals with a case of
                                                                      8
 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 C
 only that heat of passion which clouds men's sober reasons
 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 di_rect 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 · D
 originof 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
 mutu-al provocation and blows on each side. The homicide com-
 mitted is then clearly not traceable to unilateral provocation, nor E
 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 de-
 termination to fig ht. A fig ht suddenly takes place, for which both
 parties are more or less to be blamed. It may be that one of F
 them starts it, but if the other had not aggravated it by his ovvn
 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) c;
 without premeditation; (b) in a sudden fight; (c) without the of-
 fender having taken undue advantage or acted in a cruel or un-
 usual 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" H
    92        SUPREME COURT REPORTS                   [2008] 11 S.C.R.

A   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 ac-
    count of the verbal altercation in the beginning. A fight is a corn-
s   bat between two or more persons whether with or without weap-
    ons. 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 de-
    pend upon the proved facts of each case. For the application of
c   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".
D          8. In the background facts as considered in the light of
    evidence the inevitable conclusion is that the appropriate con-
    viction would be under Section 304 Part 1, IPC. Custodial sen-
    tence of 10 years would meet the ends of justice. The convic-
    tion in respect of other offences and the sentences imposed do
E   not suffer from any infirmity to warrant interference. The sen-
    tences shall run concurrently.
         9. The appeal is allowed to the aforesaid extent.
    K.K.T.                                     Appeal partly allowed.




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