Holding

All the ingredients of Exception 4 to Section 300 IPC are satisfied, so the appellant is entitled to conviction under Section 304(2) IPC instead of Section 302 IPC.

Summary

Surain Singh was convicted of murder (Sec. 302 IPC) for killing two men during a violent clash between rival factions in a court of the Executive Magistrate. The clash erupted when Singh, objecting to the presence of a rival, drew his kirpan and struck several persons, resulting in two deaths. He appealed to the Supreme Court, contending that the incident was a sudden, unpremeditated fight and therefore fell within Exception 4 to Sec. 300 IPC, which would reduce the offence to culpable homicide not amounting to murder (Sec. 304(2) IPC). The Court examined the ingredients of Exception 4 – absence of pre‑meditation, a sudden fight, no undue advantage, and no cruel or unusual manner – and found them satisfied. It held that the injuries were caused in the heat of passion with a small kirpan, without intent to kill, and that the appellant did not act cruelly or take unfair advantage. Consequently, the conviction was altered to Sec. 304(2) IPC and the sentence fixed at ten years imprisonment. The appeal was disposed of in favour of the appellant.

Issues considered

Whether the facts of the case satisfy the requirements of Exception 4 to Section 300 of the Indian Penal Code.
Whether the appellant should be convicted under Section 302 IPC (murder) or under Section 304(2) IPC (culpable homicide not amounting to murder).

Legislation cited

Code of Criminal Procedure, 1973s. 107, s. 151
Indian Penal Code, 1860s. 148, s. 149, s. 300, s. 302, s. 304(1), s. 304(2), s. 307, s. 324, s. 326

Subjects

murderculpable homicide not amounting to murderSection 300 Exception 4sudden fightpremeditationundue advantagecruel mannerkirpancriminal appealIPC conviction reduction

Judgment

..
. [2017] 2 S.C.R. 824

A SURAIN SINGH
v.
THE STATE OF PUNJAB
(Criminal Appeal No. 2284 of2009)

B APRIL 10,2017
[A. K. SIKRI AND R. K. AGRAWAL, JJ.]
Penal Code, 1860:
ss. 300 Exception 4, 30-1 Part JI, 302, 307, 32-1 - Sudden
fight - Murder - Bitler hostilfty between the warring factions to
c which accused and deceased belonged - Criminal litigation between
these factions - Scuffle between the parties in the court when
appellant-accused objected to the prese11ce of member of the ;
opposite side -Appellant-accused at once.took out his Kirpa11 (used
by 'Amritdhari Sikhs) a11d started giving blows to the opposite party.
l
)

\
D resulting i11 deat/1 of two - Conviction 1tlss. 302, 307, 324 ·and I
sentenced to life imprisonment along with fine, by the courts below
/ - On appeal, held: Where, 011 a".sudden quarrel, a perso11 in the
heat of the mo111e11t picks up a weapo11 which is handy a11d causes
injuries, one of which proves fatal, he would be entitled to the benefit I I

E
of Exception -I provided he has not acted cruelly - On facts, attack
was not premeditated a11d it was because of the spur of the moment I
and without any i11te11tio11 to cause death - Weapon used by the
appellam-accused was a small Kirpa11 - It is clear from the materials
I
'
011 record that the incident was in a sudden fight and the appella11r-
accused had not taken any undue advantage or acted in a cruel
F ma11ner - It can1101. be said that the appellant-accused had any
imention of causing the death of the deceased when he committed
the act in question - lnfident took place out of grave and sudden
. provocation - All requirements ttls.300 Exception 4 satisfied, thus,
the accused entitled to the benefit of s. 300 Exception 4 - Accused \
to be convicted ttls. 30-1 Part II and sentenced to imprisonment for
G 10 years.
· s. JOO Exception 4 - Invocation of - Necessary ingredients -
I
Explained.
s. 304 Part I and Part II - Difference. between - Held: If
H there is iment and knowledge then the same would be a case of s.
824
. SURAIN SINGH v. THE STATE OF PUNJAB 825

304 Part I - If it is only a case of knowledge and not inteption to A
· cause murder and bodily injury then the sa11ie would fall u/s,., 304
Part IL
Disposing of the. app~al, the, Court ·
. HELD: 1.1 Exception 4 to Section 300 lPC applies in the
absence of any premeditation. This is very clear from the wordings B
of the Exception itself. The exception contemplates that the
sudden fight shall start upon the heat of passion on a .sudden
·quarrel. The fourth exception to Section 300 IPC covers·acts
done in a sudden fighL The .said Exception deals with a case of
prov~cation not covered by the first exception, after which its c
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 lthere 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 D
provocation in Exception 4 as in E~ception 1, but the_injury done
' is not the direct consequence of t.!iat 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, E
yet the subsequent 'coudui:t or both parties puts them in respect'
ofguilt up'on an 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 could in
. such cases the whole blame be placed on one side. For if it.were
so, the Exception niore appropriatety'applicable would be F
' 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 G
provocation and aggravation, and it is difficuit to apportion the
share of blame which attaches to each fighter. [Para 7) (831-H;
832-A-F) . '
'' '' 1.2 The help or Exception 4 i:an be io"vok~d if death ,is
c:aused (a) without premeditation, (b} in a sudden !ight, (c) without
H
826 SUPREME COURT REPORTS (2017] 2 S.C.R.

A the offenders having taken undue advantage or acted in a cruel
or unusual manner, and (tf) 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
B
requires that there must be no time for the passions to cool down
and in this case, the parties bad 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
c 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. J<'or the application of
Exception 4, it is not sufficient to show that there was a sudden
quar.rel and there was no premeditation. It must further be shown
that the offender bas not taken undue advantage or acted in a
D
cruel or unusual manner. The expression "undue advantage" as
used in the provision means "unfair advantage". [Para 7) [832-F-
H; 833-A-B)
1.3 The appellant-accused, at the relevant time, was wearing
Kirpan and he took out the same and gave 3 or 4 blows on the
E left side of the chest of BS. When the other side came io bis
rescue, the appellant-accused gave a blow on the back side of
the waist of MS. The appellant-accused was further found to have
given a blow on the backside of the left shoulder of the
complainant and also two blows each using Kirpan on the right
F flank of SS and HS. [Para 121 [836-D-E)
1.4 In the instant case, it is evident from the materials on
record that there was bitter hostility between the warring factions
to which the accused and the deceased belonged. Criminal
litigation was going on between these factions. It is also proved
from the material on record that the attack was not premeditated
G
and preplanned. Both the parties were present in the Court of
Executive Magistrate at the relevant time with regard to the
proceedings under Section 107/151 of the Code. When the
appellant-accused objected the presence of a member of the
opposite side, the scuffle started between the parties which.
H. resulted into death of two persons. The conduct of the ap1>ellant-
SURAIN SINGH v. THE STATE OF PUNJAB 827

accused that he at ouce took out his Kirpan aud started giving A
blows to the opposite party proves that the attack was not
premeditated and it was because of the spur of the moment and
without any intention to cause death. The occasion for sudden
fight must not only be sudden but the party assaulted must be on
an equal footing in point of defence, at least at the onset. [Para
B
14) [837-E-G)
1.5 The weapon used in the fight between the parties is
'Kirpan' which is used by 'Amritdbari Sikhs' as a spiritual tool.
In .the instant case, the Kirpan used by the appellant-accused
was a small Kirpan. In order to find out whether the instrument
or manner of retaliation was cruel and dangerous in its nature, it c
is clear from the deposition of the Doctor who conducted autopsy
on the body of the deceased that stab wounds were present on
· the right side of the chest and of the back of abdomen which
implies that in the spur of the moment, the appellant-accu~ed
inflicted injuries using Kirpan though not on the vital -organs of D
the body of the deceased but be stabbed the deceased which
proved fatal. The injury intended by the accused and actually
inflicted by him is sufficient in the ordinary course of nature to
cause death or not, must be determined in each case on the basis
of the facts and circumstances. In the instant case, the injuries
caused were the result of blow with. a small Kirpan and it cannot E
be presumed that the accused had intended to cause the inflicted
injuries. The number of wounds caused d.uring the occurrence is
not a decisive factor but what is important is that the occurrence
must have been sudden aud unpremeditated and the offender
must have acted in a fit of anger. Of course, the offender must F
not have taken any undue advantage or acted in a cruel manner.
It is clear from the materials on record that the incident was in a
sudden fight and the appellant-accused had not taken any undue
advantage·or acted in a cruel manner. Where, on a sudden quarrel,
a person in the heat of the moment picks up a weapon which is
handy ai!d causes injuries, one of which proves fatal, he would be G
entitled to the benefit of this Exception provided he has not acted
cruelly. [Para 15) [837-H; 838-A-E)
1.6 If there is intent and knowledge then the same. would
be a case of Section 304 Part I and if it is only a case of knowledge
H
828 ·SUPREME COURT REPORTS [2017] 2 S.C.R.

A and not intention to cause murder and bodily injury then the same
would fall under Section 304 Part II. In the facts and circumstances
of the instant case, it cannot be said that the appellant-accused
had any intention of causing the death of the deceased when he
committed the act in question. The incident took place out of
grave and sudden provocation and hence, the accused is entitled
B
to the benefit of Section 300 Exception 4 of the IPC. [Para 16)
[838-E-F) .
1.7 In entirety, considering the factual scenario of the case
on hand, the legal evidence on record and in the background of
legal pdnciples laid dowg by this Court, the inevitable conclusion
c is that the act ofthe appellant-accused was not a cruel act and the
accused did not take undue advantage of the deceased. The scuffle
took place in the heat of passion and all the req ulrements under
Section 300 Exception 4 IPC have been satisfied. Therefore, the
benefit of Exception 4 under Section 300 IPC is attracted to the
D fact situations and the appellant-accused is entitled to this benefit.
Thus, the inevitable conclusion is that the appropriate conviction
of the appellant-accused would be under Section 304 Part II IPC
· instead of Section 302 IPC. Hence, the sentence of imprisonment
for 10 years would meet the ends of justice. (Paras 17, 18) [838-
G-H; 839-A-B)
E
State of A.P. v. Raya~arapu Punnayya and Another
(1976) 4 SCC 382 : [1977) 1 SCR 601; Budhi Singh v.
State of Himachal Pradesh (2012) 13 SCC 663 : [2012)
11 SCR 848; Kikar Singh v. State of Rajasthan (1993)
4 SCC 238 : [1993) 3 SCR 696 - referred to.
F
Case Law Reference
(1977) 1 SCR 601 referred to Para8
[2012) 11 SCR 848 referred to Para 9 · ·· ·
[1993) 3 SCR 696 referred to Para 10
G
. CRIMINAL APPELLATE JURISDICTION:Triminal Appeal No.
2284 of2009.
From the Judgment and Order dated 02.09.2008 of the High Court
of Punjab and Haryana at Chandigarh in Crl. Appeal No. 209-DBA-
H IWS. .
SURAIN SINGH v. THE STATE OF PUNJAB 829

Amipam Lal Das; Raktim Gogoi, Manuj Nagrath, Kartikeya A
Singh,Anirudh Singh, Sahil Monga, Yadav Narender Singh, N. Gupta,
Tarun Gupta, Ms. S. Janani, S. Thanwar, Kuldip Singh, V. Madhukar,
0. K. Khullar, Rishi Malhotra, Advs. for the appearing parties.
The Judgment of the Court was delivered by
R. K. AGRAWAL, J. 1. This appeal has been filed against the B
judgment and order dated 02.09 .2008 passed by the High Court of Punjab
& Haryana at Chandigarh in Criminal Appeal No. 209-DB of 1998
whereby the Division Bench of the High Court confirmed the order
dated 26.03.1998 passed by the court of Additional Sessions Judge,
Faridkot in Sessions Case No. 33of 1995 wherein the appellant herein c
was convicted under Sections 302, 307 and 324 of the Indian Penal
Code, 1860 (in short 'the !PC') and sentenced to imprisonment for life
along with fine.
2. Brief facts:
(a) Prosecution story, in brief, is that there was dispute between D
one Shri Amrik Singh-the complainant and his relatives on one side and
accused persons on the other side regarding their turn of irrigating their
fields. On account of this, earlier also there had been incidents of
assau !ting each other. In the circumstances, both the parties were facing
proceedings under Sections 107/151 of the Code of Criminal Procedure, E
1973 (in short 'the Code') before the Executive Magistrate, Faridkot.
(b) On 17.02.1995, when both the parties had come to the court
of Executive Magistrate, Faridkot, the complainant (PW-I) along with
his family members, viz., Raj Singh (PW-3), Harbans Singh (since
deceased), Sukhchain Singh (PW-2), Mander Singh, Santa Singh (since
F
deceased), Gursewak Singh, Banta Singh and others.was present in the
court premises whereas from the side of accused Surain Singh (the
appellant-accused) along with Jhanda Singh, Jasmail Singh, Darshan Singh,
Pal Singh, Boota Singh had also come to the court in order to attend the
proceedings.
G
(c) At about 11 :00 a.ni., both the sides started quarrelling and had
a heated exchange of words as Surain Singh (the appellant-accused)
objected to the presence of Bhajan Singh, who was relative of Amrik
Singh and not a party to the proceedings. Surain Singh-the appellant-
accused, took out his Kirpan and gave a blow to Bhajan Singh. When
the complainant party tried to stop the appellant-accused, he gave a H
830 SUPREME COURT REPORTS [2017] 2 S.C.R.

A Kirpan blow to Mander Singh. He also assaulted Harbans Singh (since
deceased) with Kirpan. Darshan Singh also took out his Kirpan and
started giving blows to Santa Singh (since deceased). The injured were
taken to Guru Gobind Singh Medical Hospital Faridkot, where Santa
Singh and Harbans Singh succumbed to their injuries.
(d)AFirst Information Report(FIR) being No. 14 dated 17.02.1995
was registered at Police Station, Faridkot by the complainant under
Sections 302, 307, 324, 326, 148, 149 of the !PC and the case was
committed to the Court of Sessions as Sessions Case No. 33 of J 995.
(e) Learned Additional Sessions Judge, vide order dated 26.03 .1998,
c convicted the appellant-accused under Sections 302, 307 and 324 of the
IPC and sentenced him to undergo rigorous imprisonment (RI) for life
along with fine for the murder ofHarbans Singh and Santa Singh. The
appellant herein was further sentenced to rigorous imprisonment (RI)
for I (one) year for the offence under Section 324 of the IPC with the
direction that all the sentences shall run concurrently. Since we are not
D concerned with the conviction and sentence passed against the other
accused in the present case, we refrain from referring to the same.
f) Being aggrieved by the order dated 26.03.1998, the appellant
herein preferred an appeal being Criminal Appeal No. 209-DB of 1998
before the High Court. The Division Bench of the High Court, vi de
E order dated 02.09.2008, partly allowed the appeal of the appellant-accused
while maintaining the conviction and sentence with regard to murder of
Harbans Singh under Section 302 of the !PC, infliction of injury to
Sukhchain Singh under Section 307 of the IPC and infliction of injuries
on the personofBhajan Singh and Mander Singh under Section 324 of
F the !PC and acquitted him of the charge under Section 302 of the !PC
forthe commission of murder of Santa Singh.
g) Aggrieved by the order dated 02.09 .2008, the appellant-accused
has filed this appeal by way of special leave before this Court.
3. Heard learned counsel for the parties and perused the material
G on record.
4. The only point for consideration before this Court is whether
the appellant-accused has made out a case for conviction under Section
304 Part II instead of Section 302 of the IPC?
5. Since the point for consideration is very limited in the instant
H
SURA!N SINGH v. THE STATE OF PUNJAB 831
[R. K. AGRAWAL, J.] .

case, there is no need to traverse all the factual details rather those A
having· a bearing on the present appeal.
6. Before proceeding further, it is relevant to produce Section 300
which is as under:-
"300.Murder-.Except in the case hereinafter excepted, culpable
homicide is murder, ifthe act by which the death is caused is done B
with the intention of causing death, or-
Secondly- If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused, or-
c
Thirdly- If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death, or-
Fourthly-lf the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death
D
or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or
such injury as aforesaid.
Exception !.-When culpable homicide is not murder.-
Culpable homicide is not murder ifthe offender, whilst deprived
E
·of the power of self-control by grave .and sudden provocation,
causes the death of the person who gave the provocation or causes
the death of any other person by mistake or accident.
...... x ..... xx ..... xx ..... x ......... .
...... x ..... xx ..... xx ..... x ......... . F
. .. . . . x .....xx ..... xx ..... x ......... .
Exception 4-Culpable homicide is not murder ifit is committed
without premeditation in a -sudden fight in the heat of passion
upon a sudden quarrel and without the offender having taken undue
advantage or acted in a cruet or unusual manner. G
Explanation- It is immaterial in such cases which party offers the
provocation or commits the first assault.
,,
7. Exception 4 to Section 300 of the !PC atpplies in the absence of
H
832 SUPREME COURT· REPORTS (2017] 2 S.C.R.

A any premeditation. This is very clear from the wordings of the Exception
itself. The exception contemplates that the sudden fight shall start upon
the heat of passion on a sudden quarrel. The fourth exception to Section
300 !PC covers acts done in a sudden fight. The said Exception deals
with a case of provocation not covered by the first exception, after which
its place would have been more appropriate. The Exception is founded
B
upon the. same principle, for in both there is absence of premeditation.
But, while in the case of Exception I 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,
c 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 an
equal footing. A "sudden fight" implies mutual provocation and blows on
D
each side. The homicide committed is then clearly not traceable to
unilateral provocation, nor could in such cases the whole blame be placed
on one side. For ifit 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
E Jess to be blamed. It may be that one of them starts it, but ifthe 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 offenders
F
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 !PC
is not defined in !PC. It takes two to make a fight. Heat of passion
G requires that there must be no time for the passions to cool down and in
this case, the parties had 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
H
SURAIN SINGH v. THE STATE OF PUNJAB 833
[R. K. AGRAWAL, J.]

must necessarily depend upon the proved facts of each case. For the A
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 a cruel or
unusual manner. The expression "undue advantage" as used in the
provision means "unfair advantage" ..
B
8. ln Slllte ofA.P. vs. Rayavarapu Pu111wyya andAnotfter (1976)
4 SCC 382, this Court while drawing a distinction between Section 302
and Section 304 held as under:-
"12. In the scheme of the Penal Code, "culpable homicide" is
genus and "murder" its specie. All "murder" is "culpable homicide" c
but not vice-versa. Speaking generally, "culpable homicide" sans
"special characteristics of murder", is "culpable homicide not
amounting to murder". For the purpose of fixing punishment,
proportionate to the gravity of this generic offence, the Code
practically recognises three degrees of culpable homicide. The
first is, what may be called, "culpable homicide of the first degree". D
This is the greatest form of culpable homicide, which is defined in
Section 300. as "murder". The second may be termed as "culpable
homicide of the second degree". This is punishable under the first
part of Section 304. Then, there is "culpable homicide of the third
degree". This is the lowest type of culpable homicide and the E
punishment provided for it is, also, the lowest among the
punishments provided for the three grades. Culpable homicide of
this degree is punishable under the second part of Section 304.
21. From the above conspectus, it emerges that whenever a court
is confronted with the question whether the offence is "murder" F
or "culpabfe homicid~ not amounting to murder", on the facts of a
case, it will be convenient for it to approach the problem in three
stages. The question .to be considered at the first stage would be,
whether the accused has done an act by doing which he has caused
the death of another. Proof of such causal connection between
the act of the accused and the death, leads to the second stage G
for considering whether that act of the accused amounts to
"culpable homicide" as defined in Section 299. If the answer to
this question is prima facie found in the affirmative, the stage for
considering the operation of Section 300 of the Penal Code, is
reached. This is the stage at which the court should determine H
834 SUPREME COURT REPORT$ [2017] 2 S.C.R.

A whether the facts proved by the prosecution bring the case within
the ambit of any of the four clauses of the definition of"murder"
contained in Section 300. If the answer to this question is in the
negative the offence would be "culpable homicide not amounting
to murder", punishable under the first or the second part of Section
304, depending, respectively, on whether the second or the third
B
clause of Section 299 is applicable. If this question is found in the
positive, but the case comes within any of the exceptions
enumerated in Section 300, the offence would still be "culpable
homicide not amounting to murder", punishable under the first
part of Section 304, of the Penal Code."
c · 9. In Bud/1i Singh vs. State of Hinutclutl Pradesh (2012) 13
SCC 663 this Court has held as under:-
18. The doctrine of sudden and grave provocation is incapable of
rigid construction leading to or stating any principle of universal
application. This will always have to depend on the facts of a
D given case. While applying this principle, the primary obligation of
the court is to examine from the point of view of a person of
r.easonable prudence if there was such grave and sudden
provocation so as to reasonably conclude that it was possible to
commit the offence of culpable homicide, and as per the facts,
E was not a culpable homicide amounting to murder. An offence
resulting from grave and sudden provocation would normally mean
that a person placed in such circumstances could lose self-control
but only temporarily and that too, in proximity to the time of
provocation. The provocation could be an act or series of acts
done by the deceased to the accused resulting in inflicting of injury.
F
19. Another test that is applied more often than not is that the
behaviour of the assailant was that of a reasonable person. A fine
distinction has to be kept in mind between sudden and grave
provocation resulting in sudden and temporary loss of self-control
and the one which inspires· an actual intention to kill. Such act
G should have been done during the continuation of the state of
mind and the time for such person to kill and reasons to regain the
dominion over the mind. Once there is premeditated act with the
intention to kill, it will obviously fall beyond the scope ofculpable
homicide not amounting to murder ....."
H
SURAIN SINGH v. THE STATE OF PUNJAB 835
[R. K. AGRAWAL, J.]

I 0. In Kikar Sillgit vs. State of Rajastlwn ( 1993) 4 SCC 23 8, A
this Court held as under:-
"8. The counsel attempted to bring the case within Exception 4.
For its application all the conditions enumerated therein must be
satisfied. The act must be committed without premeditation in a
sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) B
without the offender's having taken undue advantage; ( 4) and the
accused had not acted in a cruel or unusual manner. Therefore,
there must be a mutual combat or exchanging blows on each
other. And however slight the first blow, or provocation, every
fresh blow becomes a fresh provocation. The blood is already
heated or warms up at every subsequent stroke. The voice of
c
reason is heard on neither side in the heat of passion. Therefore,
it is difficult to apportion between them respective degrees of
blame with reference to the state of things at the commencement
of the fray but it must occur as a consequence of a sudden fight
i.e. mutual combat and not one side track. It matters not what the D
cause of the quarrel is, whether real or imaginary, or who draws
or strikes first. The strike of the blow must be without any intention
to kill or seriously injure the other. If two men start fighting and
one of them 'is unarmed while the other uses a deadly weapon,
the one who uses such weapon must be held to have taken an
E
undue advantage denying him the entitlement to Exception 4. True
the number of wounds is not the criterion, but the position of the
accused and the deceased with regard to their arms used, the
manner of combat must be kept in mind when applying Exception
4. When the deceased was not armed but the accused was and
caused it!juries to the deceased with fatal results, the Exception 4 F
engrafted to Section 300 is excepted and the offences committed
would be one of murder.
9. The occasion for sudden quarrel must not only be sudden but
the party assaulted must be on an equal footing in point of defence,
at least at the onset. This is specially so where the attack is made G
with dangerous weapons. Where the deceased was unarmed and
did not cause any i1tjury to the accused even following a sudden
quarrel if the accused has inflicted fatal blows on the deceased,
Exception 4 is not attracted and commission must be one of murder
punishable under Section 302. Equally for attracting Exception 4
H
836 SUPREME COURT REPORTS [2017] 2 S.C.R.

A it is necessary that blows should be exchanged even if they do not
all find their target Even if the fight is unpremeditated and sudden,
yet if the instrument or manner of retaliation be greatly
disproportionate to the offence given, and cruel and dangerous in
its nature, the accused cannot be protected under Exception 4 ...."
B 11. Now, we have to consider the facts of th is case on the
touchstone of Section 300 Exception 4 in order to find out whether the
case falls under the same or not. During the course of hearing, learned
counsel for the appellant-accused strenuously contended before this Court
that the High Court recorded a categorical finding that "an inescapable
conclusion that can be drawn is that it was a case of sudden fight where
c the attack was without pre-meditation." He further contended that despite
holding so, the High Court erroneously convicted the appellant-accused
under Section 302 of the IPC instead of Section 304 Part II on the
ground that the appellant-accused had acted in cruel manner and had
caused injuries to six persons and a·death.
12. The appellant-accused, at the relevant time, was wearing
Kirpan and he took out the same and gave 3 or 4 blows on the left side
of the chest ofBhajan Singh. When the other side came to his rescue,·
the appellant-accused gave a blow on the back side of the waist of
Mander Singh. The appellant-accused was further found to have given
E a blow on the backside ofthe left shoulder ofAmrik Singh-the complainant
and also two blows each using Kirpan on the right flank of Sukhchain
Singh and Harbans Singh.
13. ln view of the above, it is relevant to quote the statement of
Dr. Sarabjit Singh Sandhu (PW-4), who conducted the autopsy on the
F body ofHarbans Singh, which is as under:-
"On the same day, at 4.50 p.m. I also conducted the post mortem
examination on the dead bodyofHarbans Singh S/o Mandir Singh
Rio Pakhi Khurd 27 years age, male brought by AS! Sukhdev
Singh and HC Parson Singh No. 1432 of P.S. City Faridkot. Body
was identified by Bohar Singh S/o Ajmer Singh and Tej Singh S/o
G
Kartar Singh. Length of the body was 5'9". It was dead body of
moderately built and moderately nourished young man wearing
Sweater, Shirt, Jarsi, Paint, Kachha, Turban, Short Kirpan with
black thread, White metallic kara in right forearm. P.M. staining
as present series of marked patches at the back of trunk and
H
- SURAIN SINGH v. THE STATE OF PUNJAB 837
[R. K. AGRAWAL, J.]

lower limbs. Rigor mortis was present in the neck.muscles and A
upper limbs. Absent in lower limbs (developing stage) clothes
were blood stained and corresponding holes were present with
clothes. I found the following injuries on his person:-
!. An onlique stab wound 3 x 0.5 cm was present on the lateral
side of right side of chest in mid Axiliary line 22 cm below the B
Axillary apax. C.RP. it was bone deep.
2. A transverse stab wound 2.0 x 5 cm was presentation the right ·
side back of abdomen, 8 ems below and lateral of injury no. 1
on exploring, it was going medially and in words cutting
subcutaneous tissue, muscles, right kidney. Peritoneum and c
large intestine. Peritoneum cavity contained above 1000 C.C.
of fluid and clotted blood. Stomach contained about 150 C.C.
of semi digested food. All other organs were healthy.
All the injuries were anti mortem in nature. The cause of death in
this case in my opinion was due to right kidney (hemorrhage and D
shock)-and large intestine, as a result of injury no. 2 which was
sufficient to cause death in ordinary course.of nature."
14. In the instant case, it is evident from the materials on record
that there was bitter hostility between the warring factions to which the
accused and the deceased belonged. Criminal litigation was going on E
between these factions. It is also proved from the material on record
that the attack was not premeditated and preplanned. Both the parties
were present in the Court of Executive Magistrate, Faridkot atthe relevant
time with regard to the proceedings unde~ Section I 07 /151 of the Code.
When the appellant-accused objected the presence of a member of the
opposite side, the scuffle started between the parties which resulted into F
death of two persons. The conduct of the appellant-accused that he at
once took out his Kirpan and started giving blows to the opposite party
proves that the attack was not premeditated and it was because of the
spur of the moment and without any intention to cause death. The
occasion for sudden fight must not only be sudden but the party assaulted G
must be on an equal footing in point of defence, at least at the onset.
15. The weapon used in the fight between the parties is 'Kirpan'
which is used by 'Amritdhari Sikhs' as a spiritual tool. In the present
case, the Kirpan used by the appellant-accused was a small Kirpan. In
order to find out whether the instrument or manner of retaliation was
H
838' SUPREME COURT REPORTS (2017] 2 S.C.R.

A cruel and dangerous in its nature, it is clear from the deposition of the
Doctor who conducted autopsy on the body of the deceased that stab
wounds were present on the right side of the chest and of the back of
abdomen which implies that in the spur of the moment, the appellant-
accused inflicted injuries using Kirpan though not on the vital organs of
~he body of the deceased but he stabbed the deceased which proved
B
fatal. The injury intended by the accused and actually inflicted by him is
sufficient in the ordinary course ofnature to cause death or not, must be
detennined in each case on the basis of the facts and circumstances. In
the instant case, the injuries caused were the result of blow with a small
Kirpan and it cannot be presumed that the accused had intended to
c cause the inflicted injuries. The number of wounds caused during the
·occurrence is not a decisive factor but what is important is that the
occurrence must have been sudden and unpremeditated and the offender
must have acted in a fit of anger. Of course, the offender must not have
taken any undue advantage or acted in a cruel manner. It is clear from
the materials on record that the incident was in a sudden fight and we
D
are of.the opinion that the appellant-accused had not taken any undue
advantage or acted in a cruel manner. Where, on a sudden quarrel, a
person in the heat of the moment picks up a weapon which is handy and
causes injuries, one of which proves fatal, he would be entitled to the
benefit of this Exception provided he has not acted cruelly.
E 16. Thus, if there is intent and knowledge then the same would be
a case of Section 304 Part I and if it is only a case of knowledge and not
intention to cause murder and bodily injury then the same would fall
under Section 304 Part II. We are inclined to the view that in the facts
and circumstances of the present case, it cannot be said that the appellant-
F accused had any intention of causing the death of the deceased when he
committed the act in question. The incident took place out of grave and
sudden provocation and hence the accused is entitled to the benefit of
Section 300 Exception 4 of the !PC. ·
17. Thus, in entirety, considering the factual scenario of the case
G on hand, the legal evidence on record and in the background of legal
principles laid down by this Court in the cases referred to supra, the
inevitable conclusion is that the act of the appellant-accused was not a
cruel act and the accused did not take undue advantage of the deceased.
The scuffle took place in the heat of passion and all the requirements
under Section 300 Exception 4 of the !PC have been satisfied. Therefore,
H
SURAIN SINGH v. THE STATE OF PUNJAB 839
[R. K:
AGRAWAL, J.]

the benefit of Exception 4 under Section 300 IPC is attracted to the fact A
situations and the appellant-accused is entitled to this benefit.
18. Thus, considering the factual background and the legal position
set out above, the inevitable conclusion is that the appropriate conviction
of the appellant-accused would be under Section 304Part11 IPC instead
of Section 302 IPC. Hence, the sentence of imprisonment for Hi years B
would meet the ends of justice.
19. The appeal is disposed of in the abovesaid terms.

Nidhi Jain Appeal disposed of.
c