# SHAIKH AZIM @VAKIL@ KUKU v. STATE OF

- **Citation:** [2008] 10 S.C.R. 916
- **Court:** Supreme Court of India
- **Decided:** 2008-07-14
- **Case number:** Criminal Appeal No.868 of 2007
- **Bench:** Dr. Arijit Pasayat, P. Sathasivam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shaikh-azim-vakil-kuku-v-state-of-23392
- **Pages:** 8

## Headnote

Penal Code, 1860:
s. 304 (Part /) - Relations between family of deceased
C and that of Appellant strained - Hot exchange of words between parties - Appellant assaulted deceased - Gave stick
blow on head - Bleeding injury leading to death -
Conviction
by Courts below u/s.302 - On appeal, held: In the facts and
circumstances of the case, appropriate conviction would be u/
D s. 304 Part I - Custodial sentence of 10 years.
s. 300, Exception IV - App/lcability of - Held: For 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 did not take undue advanE tage or acted in cruel or unusual manner - Expression "undue advantage" as used in the provision means "unfair advantage".
Words and Phrases - "sudden fight" and "undue advanF tage" - Meaning of - In context to Exception IV to s. 300, /PC.
The house of the deceased was adjacent to the
house of the accused-Appellant. The relations between
the family of the deceased and that of the Appellant were
strained. According to the prosecution, on the incident
G date, pursuant to a hot exchange of words between the
parties, Appellant and his two brothers attacked and beat
the deceased with sticks and iron rod. Appellant allegedly
gave a stick blow on the head of the deceased due to
which he received bleeding injury and subsequently died
H
916
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SHAIKH AZIM @VAKIL@ KUKU v. STATE OF
917
MAHARASHTRA
as a result thereof. PW4, the doctor, who conducted the A
post-mortem examination opined that the injury on the
head of the deceased was sufficient in the ordinary course
of nature to cause death and also opined that the said
injury was possible by stick. The Trial Court convicted
Appellant under s.302 IPC and one of his brothers under B
s.325 IPC, but acquitted the other brothers. High Court
upheld the conviction of appellant. Hence the present
appeal.
Allowing the appeal, the Court
HELD:1. PWs. 1 and 3 were witnesses of the occurrence. PW6 stated about the hot exchange of words which
were going on. All the witnesses stated that Appellant had
assaulted the deceased. Their evidence does not suffer
from any infirmity. [Para 6] [921 F - G]
c
D
2.1. For bringing in operation of Exception 4 to s.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 hav- ·
ing taken undue advantage and not having acted in a cruel E
or unusual manner. [Paras 7,8] [921 H - 922 -A]
2.2. The Fourth Exception to s.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.
F
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 G
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 H
918
SUPREME COURT REPORTS
[2008] 10 S.C.R.
?
A
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 9] [922 A-D]
B
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
would be Exception 1. There is no previous deliberation
c or determination to fight. A fight sudden

## Text

A
B
[2008] 10 S.C.R. 916
SHAIKH AZIM @ VAKIL @ KUKU
II.
STATE OF MAHARASHTRA
(Criminal Appeal No.868 of 2007)
JULY 14, 2008
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
Penal Code, 1860:
s. 304 (Part /) - Relations between family of deceased
C and that of Appellant strained - Hot exchange of words between parties - Appellant assaulted deceased - Gave stick
blow on head - Bleeding injury leading to death -
Conviction
by Courts below u/s.302 - On appeal, held: In the facts and
circumstances of the case, appropriate conviction would be u/
D s. 304 Part I - Custodial sentence of 10 years.
s. 300, Exception IV - App/lcability of - Held: For 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 did not take undue advanE tage or acted in cruel or unusual manner - Expression "undue advantage" as used in the provision means "unfair advantage".
Words and Phrases - "sudden fight" and "undue advanF tage" - Meaning of - In context to Exception IV to s. 300, /PC.
The house of the deceased was adjacent to the
house of the accused-Appellant. The relations between
the family of the deceased and that of the Appellant were
strained. According to the prosecution, on the incident
G date, pursuant to a hot exchange of words between the
parties, Appellant and his two brothers attacked and beat
the deceased with sticks and iron rod. Appellant allegedly
gave a stick blow on the head of the deceased due to
which he received bleeding injury and subsequently died
H
916
•,
~
""
lo.-
1,.
~
' •
SHAIKH AZIM @VAKIL@ KUKU v. STATE OF
917
MAHARASHTRA
as a result thereof. PW4, the doctor, who conducted the A
post-mortem examination opined that the injury on the
head of the deceased was sufficient in the ordinary course
of nature to cause death and also opined that the said
injury was possible by stick. The Trial Court convicted
Appellant under s.302 IPC and one of his brothers under B
s.325 IPC, but acquitted the other brothers. High Court
upheld the conviction of appellant. Hence the present
appeal.
Allowing the appeal, the Court
HELD:1. PWs. 1 and 3 were witnesses of the occurrence. PW6 stated about the hot exchange of words which
were going on. All the witnesses stated that Appellant had
assaulted the deceased. Their evidence does not suffer
from any infirmity. [Para 6] [921 F - G]
c
D
2.1. For bringing in operation of Exception 4 to s.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 hav- ·
ing taken undue advantage and not having acted in a cruel E
or unusual manner. [Paras 7,8] [921 H - 922 -A]
2.2. The Fourth Exception to s.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.
F
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 G
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 H
918
SUPREME COURT REPORTS
[2008] 10 S.C.R.
?
A
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 9] [922 A-D]
B
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
would be Exception 1. There is no previous deliberation
c 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
r '
D 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
E or unusual manner; and ( d ) the fight must have been
with the person killed. [Para 9] [922 D-H]
2.4 To bring a case within Exception 4, all the ingredients mentioned in it must be found. It is to be noted that
F
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
G 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. For
H the application of Exception 4, it is not sufficient to show
SHAIKH AZIM @VAKIL@ KUKU v. STATE OF
919
MAHARASHTRA [DR ARIJIT PASAYAT, J.]
that there was a sudden quarrel and that there was no A
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" a$
used in the provision means "unfair advantage". [Para 9]
[922 H- 923 D]
B
Sandhya Jadhav v. State of Maharashtra (2006) 4 SCC
653 - relied on.
3. When the factual scenario is considered in the
background of legal principles set out above, the inevi- c
table conclusion is that the appropriate conviction would
be under s.304 Part I IPC. Custodial sentence of 10 years
should meet the ends of justice. [Para 11] [923 D-E]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 868 of 2007
D
From the Judgment and Order dated 25.11.2002 of the
High Court of Judicature at Bombay, Nagpur Bench, Nagpur in
Criminal Appeal No. 183/1990
Kishore Lambat, Devan Lambat and R.S. Lambat for the
Appellant.
E
Ravindra Keshavrao Adsure for the Respondent.
The Judgment of the Court was delivered by
f,
Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the judgment of the Division Bench of the Bombay High Court,
F
Nagpur Bench, upholding conviction of the appellant for offence
punishable under Sections 302 of the Indian Penal Code, 1860
(in short the 'IPC') as was awarded by the 9th Additional Sessions Judge, Nagpur. Three persons faced trial. They are Sk.
Rahim(A-1), Sk. Azim (A-2) and Sk Ibrahim (A-3). A-1 was acG
-,;
quitted and A-3 was convicted for offence punishable under
Section 325 IPC.
2. Background facts in a nutshell are as follows:
The house of Abdul Jabbar Qureshi (hereinafter referred
H
920
SUPREME COURT REPORTS ·
· [2008] 10 S.C.R.
A
to as the 'deceased') was adjacent to the house of the appellant/accused in Nava Nakasha, Lashkaribagh, Nagpur. At the
relevant time, the appellant along with his two brother i.e. Sk.
Rahim.and Sk. Ibrahim as well as his parents and grand father
were residing in the same house. According to the prosecution,
B about four months prior to the incident in question, the relations
between the family of the deceased and the accused were
strained, since the family members of the deceased allegedly
threw filth from their side of the house into the courtyard of the·
house of the accused. The family members of the deceased
c questioned the conduct of the family members of the accused.
However .. the appellant and his family members did not pay heed
to this aspect.
The incident ir:i question took place on 8.8.1986 at about
12.00 noon. The deceased and his son Abdul Khaliq were
D present in their house along with other family members. At that
time they noticed that some filth has been thrown by somebody
in the backyard of their house from the side of the house of the
accused. The deceased and his family members, therefore, got
angJy1i:md expressed their displeasure in loud and strong words.
E The family members of the accused heard the words used by
the family members of the deceased and, therefore, the lady
members of the family of the accused started abusing the deceased and his family members in filthy language. Then the deceased and his son Abdul Kha liq came out of their house. The
F
accused persons along with their grand father Shaikh Ahmed
also came out of their house. Accused Sk. Azim (appellant) was
holding a Stick, accused Sk. Ibrahim was holding an iron rod
and accused Sk. Rahim was also holding a stick in his hand.
Accused Azim gave a stick blow on the head of the deceased
G due to which he received bleeding injury. Abdul Khaliq, son of
the deceased, rushed to rescue his father. All the accused attacked him and beat him with iron rod and stick on his head
and abdomen. Abdul Khaliq received injuries on his person.
The persons from the locality gathered and rescued them from
the accused. The deceased had become unconscious because
H
SHAIKH AZIM @VAKIL@ KUKU v. STATE OF
921
MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
of the blow which was given by accused no.2, the appellant on
A
the head of the deceased. His condition was serious. Therefore, he was sent to Mayo hospital. The deceased succumbed
to the injuries on the next day i.e. on 9.3.1986 at about 3.30
p.m.
The dead body of the deceased was referred to the docB
tor for post mortem examination. Dr. Deuskar (PW4) conducted
the post mortem examination and opined that the injury on the
head of the deceased was sufficient in the ordinary course of
nature to cause death and also opined that the said injury is
possible by the weapon like stick (lathi).
C
3. The conviction was challenged before the High Court,
which as noted above, dismissed the same. The present appeal has been filed by A2.
4. Learned counsel for the appellant in support of the apD
peal submitted that the prosecution version is not cogent. The
evidence of PWs. 3 and 6 should not have been relied upon
1
though they claim to have witnessed the incident. In any event,
it is submitted that the offence is not covered by Section 302
IPC. The occurrence took place during the course of a sudden
E
quarrel.
5. Learned counsel for the respondent-State supported the
judgment of the courts below.
6. So far as evidence of eye witnesses is concerned, PWs.
1 F
1 and 3 were the witnesses of the occurrence. So far as PW6
is concerned, he has stated about the hot exchange of words
which were going on. All the witnesses have stated that A-2
had assaulted the deceased. Their evidence does not suffer
from any infirmity.
7. In essence the stand of learned counsel for the appellant is that Exception IV to Section 300 IPC would apply to the
facts of the case.
G
8. For bringing in operation of Exception 4 to Section 300
H
922
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
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 witho.ut the offender having taken undue advantage and not having acted in a cruel or unusual manner.
9. The Fourth Exception to Section 300 IPC covers acts
8
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
C 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
D 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
E 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 deF termination 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
G 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 perH son killed., To bring a case within Exception 4 all the ingredients
~
I
•..
SHAIKH AZIM @VAKIL@ KUKU v. STATE OF
MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
923
mentioned in it must be found. It is to be noted that the "fight"
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 account of the verbal altercation in the beginning. A fight is a com- s
bat 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. For the application of C
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".
10. The above position is highlighted in Sandhya Jadhav
v. State of Maharashtra (2006) 4 SCC 653).
D
11. When the factual scenario is considered in the background of legal principles set out above, the inevitable conclusion is that the appropriate conviction would be under Section
E ,
304 Part I IPC. Custodial sentence of 10 years should meet the
ends of justice.
12. Appeal is allowed to the aforesaid extent.
B.B.B.
Appeal allowed .