SHAIKH MAJID AND ANR. v. STATE OF MAHARASHTRA AND ORS

Citation: [2008] 1 S.C.R. 964

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, AFTAB ALAM

Case summary

SHAIKH MAJID AND ANR. v. STATE OF MAHARASHTRA AND ORS.pdf

Judgment text

[2008] 1 S. C. R. 964 SHAIKH MAJID AND ANR. -:rv. STATE OF MAHARASHTRA AND ORS. (Criminal Appeal No. 132 of 2008) JANUARY 21, 2008 [DR. ARIJIT PASAYAT AND AFTAB ALAM, JJ. ] ) Penal Code, 1860: -+ s. 300, Exception 4, 304 (Part-1) - Sudden fight resulting in death of one and serious injuries to others - Deceased, PW-4 and other villagers performing pooja in temple - Accused persons and large number of persons from mosque adjacent to the temple started pelting stones exhorting them to leave the place immediately as they had to offer namaz - Accused persons assaulted PW-4 and others with knives - Causing serious injuries to many and death of one - '_. Conviction by trial court under s. 302 r. w. s. 34 - Affirmed by High Court - On appeal, Held: Considering background facts and nature of weapon used i. e. small knife, the appropriate conviction would be under s. 304 Part I and not s. 302 - Accordingly conviction altered. s. 302 -Applicability of, when single blow given.

Criminal trial: ·-·- Non-explanation of injuries on accused - Effect on ' prosecution case. Words and phrases: "fight', 'sudden fight' and 'undue advantage' - Meaning of - In the context of s. 300, Exception 4 /PC. '"I-, The prosecution case was that the first informant PW- 4 and about 200 villagers were performing pooja in a temple on the event of Deshahra festival. After pooja, they ... , entered the gate of village and went to the Ram and Maruti .... temples for offering their prayers. At that time, about 250- 300 people from mosque, adjacent to Ram temple started pelting stones at them. While pelting stones they were exhorting that it was time for offering prayer and they should leave the place immediately. 32 accused persons· along with 200-250 persons assaulted them with sticks, stones, knives etc. The assault was on the people r belonging to Hindu religion. PW-4 was assaulted by • accused no. 1 and 26 with knives. Other persons also sustained serious injuries. One person died.

A case was registered against accused persons under ss. 307, 147, 148, 149 and 323 IPC. The trial court convicted appellants under s. 302 r. w. s. 34 IPC and also under s. 324 IPC, which was affirmed by the High Court. In appeal to this Court, appellants contended that 1 there were injuries on the accused which were not ~ explained by the prosecution and in alternate, s. 302 IPC would not attract to facts of the case and Exception 4 to s. 300 IPC would apply as there was only one blow and that too in the course of sudden quarrel. Partly allowing the appeal, the Court HELD: 1. 1 Non-explanation of the injuries on the accused by the prosecution may assume greater importance where the defence gives a version which /. competes in probability with that of the prosecution. But .

where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood, the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently, the whole case. Much ,.... ,. depends on the facts and circumstances of each case. [Para 9] [972-F-H; 973-A] 1. 2. Non-explanation of injuries by the prosecution will not affect the prosecution case where injuries MAHARASHTRA AND ORS. sustained by the accused are minor and superficial or r where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of the prosecution to explain the injuries. When the prosecution comes with a definite case that the offence has been committee!

by the accused and proves its case beyond any reasonable doubt, it does ' not become necessary for the prosecution to again ~ explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. [Para 1OJ [973-8, F-G] Ram/agan Singh v. State of Bihar (1973) 3 SCC 881; Hare Krishna Singh v. State of Bihar (1988) 2 SCC 98 - relied on. ¥ Mohar Rai v. State ofBiharAIR (1968) SC 1281; Lakshmi ... Singh v. State of Bihar (1976) 4 SCC 394; Vijayee Singh v. State of U. P (1990) 3 SCC 190 - referred to. 2. 1. Exception 4 to s. 300 IPC 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. [Para 14] [974-C-E] -r 2. 2. 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 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. [Para 14] [974-E-H; 975-A-B] 2. 3. The word "fight" occurring in Exception 4 to s. 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 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 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. ,: 14. The Fourth Exception to 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 . I 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 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 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 or mo re 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 that 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". 15. The above position is highlighted in Sandhya Jadhav v. State of Maharashtra (2006) 4 SCC 653). 16.

It cannot be said that whenever a single blow is given, that would not attract Section 302 IPC. 17. In the instant case considering the background facts ? f and the nature of the weapon used i. e. small knife the appropriate conviction would be under Section 304 Part I IPC and not Section 302 IPC. Accordingly the conviction is altered, custodial sentence of ten years would suffice. 18. The appeal is allowed to the aforesaid extent. .. ,.. D. G. Appeal partly allowed. '