Samsuddin Sheikh Vs.
State of Goa [2008] INSC 2023 (26 November 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising
out of SLP (Crl.) No. 5360 of 2008) Samsuddhin Sheikh ...Appellant State of Goa
...Respondent
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 short
the `IPC'). The appellant has faced trial alongwith 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') by stabbing him with a knife on his chest on 18.5.1998 in the
night.
2. Prosecution
version, in a nutshell, is as follows:
The appellant accused
and his colleague Ashish Culaco 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 Shashikant 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 presence of his wife, they provoked him to come out of his house by abusing
him but Shashikant Kawade was not permitted to go out of the house. 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', he heard
shouts of `chor chor' from the nearby huts on which Shashikant Kawade rushed
towards that direction followed by Rafik Gondi and when he reached in the
field, there was exchange of hot words in course of a quarrel and
appellantaccused and the co-accused assaulted him and the appellant accused
took out a knife and stabbed Shashikant Kawade on the chest because of which he
collapsed on the ground. The appellant accused and the co-accused tried to run
away from the scene of offence. But they were accosted and assaulted by the
public with rods and kicks. In the meantime the police 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 against the appellant accused and the co-accused was filed and the matter
was committed by the Judicial Magistrate, First Class, Margao to the Court of
Session.
Since accused abjured
guilt, trial was held. The trial Court relied on the evidence of the
prosecution witnesses and recorded the conviction and imposed sentence as
aforesaid.
In appeal, the
primary stand was 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.
3 The stand taken
before the High Court was re-iterated in the present appeal.
3.
Learned
counsel for the respondent-State on the other hand supported the judgment.
4.
For
the application of Exception 4 of Section 300 IPC, it has to be established
that the act was committed 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.
5.
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'.
6.
Where
the offender takes undue advantage or has acted in a 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 undueadvantage 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 be held that giving the blows with the knowledge that they
were likely to cause 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 the appellant is to be convicted under
Section 304 Part I, IPC. Custodial sentence of 10 years would meet the ends of
justice.
8.
The
appeal is allowed to the aforesaid extent.
....................................
.....J. (Dr. ARIJIT PASAYAT)
.........................................J
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