Sahib Singh vs The State
2009 Latest Caselaw 4038 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                           Date of decision: 07.10.2009


+                           CRL. A. No.183 of 1997


SAHIB SINGH                                         ...APPELLANT
                            Through:   Mr.R.C.Tiwari,
                                       Mr.N.S.Bhat,
                                       Mr.Subhash Chand and
                                       Mr.Vikram Singh, Advocates.


                                   Versus


THE STATE                                            ...RESPONDENT

                            Through:   Mr. Pawan Sharma, Advocate.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?            No

2.        To be referred to Reporter or not?             No

3.        Whether the judgment should be                 No
          reported in the Digest?

SANJAY KISHAN KAUL, J. (Oral)

1. The appellant and deceased Mukesh both belong to the

same Village of Khera Khurd, Delhi.

2. It is the case of the prosecution that the appellant was a

member of a band group and used to play band at

marriages. On 27.07.1988 at 8 PM a quarrel broke out

between the appellant and the deceased Mukesh and the

appellant is alleged to have given three knife blows to

the deceased whereafter he ran away. Anil Kumar/PW7,

brother of the deceased, is the eye witness and the

complainant in the present case. The deceased was

rushed to St.Stephen Hospital where he was declared as

brought dead. FIR No.124/1988 was registered at PS

Narela on the basis of the complaint of Anil Kumar/PW7

and the matter was investigated. Challan was filed and

the charges were framed against the appellant under

Section 302/34 of IPC. The appellant pleaded innocence

and claimed trial. In terms of the impugned judgment

dated 29.11.1996, the learned ASJ held the appellant

guilty for the offence punishable under Section 302 of IPC

and in terms of the order on sentence dated 30.11.1996,

convicted the appellant to undergo imprisonment for life

and to pay a fine of Rs.300/- and in default of payment of

fine to further undergo RI for one month.

3. The appellant aggrieved by the judgment and order on

sentence preferred the present appeal.

4. The appellant was enlarged on bail on 25.08.1999 as by

that time he had already undergone sentence for a

period of nine years.

5. The appeal was taken up for hearing and the appellant is

present in the Court. Learned counsel for the appellant,

on instructions, from the appellant does not want to

press the grounds of appeal on merits and admits his

guilt. The only plea advanced is that the present case is

not one under Section 302 of IPC, but one under Section

304(I) of IPC.

6. We have heard the submissions advanced on behalf of

learned counsel for the respondent/State who has

contended that the plea of learned counsel for the

appellant is misconceived.

7. We find from the testimony of PW6 Dharam Singh that he

saw three persons quarrelling and indulging in abuses

who were pacified at that stage of time. It appears that

the fight once again broke out. Anil Kumar/PW7 referred

to the appellant accosting the deceased and making a

comment 'Jyada Ghamandi Hai, Mai Tera Kaam Aaj

Tamam Kar Doon Ga'. The appellant took out a knife and

gave three blows on the chest, abdomen and hand of the

deceased.

8. A reading of the testimony of the witnesses shows that

an impromptu fight broke out albeit over minor

skirmishes between the parties. There is nothing on

record to suggest that the occurrence was premeditated

and from the testimony of Anil Kumar/PW7 it is apparent

that he and the deceased met the appellant by chance.

From the above evidence, it transpires that the incident

was not premeditated and it was a result of a sudden

fight in a heat of passion on account of sudden quarrel

which broke out at the site. The appellant did not take

any undue advantage or act in cruel or unusual manner.

The knife blow having been inflicted upon the deceased,

the deceased fell down and the appellant ran away while

the deceased was being attended to by his relations.

9. The law in respect of 4th exception to Section 300 of IPC

is elucidated in Ravindra Shalik Naik & Ors. Vs. State

of Maharashtra; 2009 (2) SCALE 354 in para 6 as

under:-

"6. 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 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 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 acting 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'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat, (2003) (5) Supreme 223, Parkash Chand v. State of H.P. (2004) (11) SCC 381,; Byvarapu Raju

v. State of A.P. and Anr., (2007) (11) SCC 218 and Buddu Khan v. State of Uttarakhand SLP (Crl.) No. 6109/08 disposed of on 12.1.2009"

10. The legal principles enunciated aforesaid, in our view,

would apply to the facts of the present case wherein also

fatal stab wounds were inflicted by the appellant on the

deceased on account of a sudden fight in a heat of

passion without any premeditation. Thus, the 4 th

exception to Section 300 of IPC comes into play and the

appellant is liable to be convicted under Section 304(I) of

IPC and not under Section 302 of IPC.

11. We, therefore, accept the appeal and convert the

conviction of the appellant from under Section 302 of IPC

to Section 304(I) of IPC and modify the sentence of the

appellant to rigorous imprisonment for nine years. Since

the appellant has already suffered incarceration for the

said period of time, giving benefit under Section 482 of

IPC, he is released forthwith.

12. The result is that the appeal is partially allowed and the

impugned judgment of conviction and the order on

sentence are modified accordingly

13. Bail-cum-surety bonds of the appellant are cancelled

and discharged.

SANJAY KISHAN KAUL, J.

October 07, 2009                                                  AJIT BHARIHOKE, J.
dm