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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1999-2000  OF  2010

SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS.      APPELLANT(S)

:VERSUS:

STATE OF GUJARAT      RESPONDENT(S)

JUDGMENT

Pinaki Chandra Ghose, J.

1. These appeals by special leave, have been directed against the

judgment and order dated 24.10.2008 passed by the High Court

of  Gujarat  at  Ahmedabad in Criminal Appeal Nos. 117 of 2007

and  2274  of  2006  respectively,  whereby  the  High  Court

dismissed the  criminal  appeals  filed  by  the  appellants  herein

and confirmed their conviction and sentence for various offences

punishable under Section 302 read with Sections 143, 147, 148,

323 of the Indian Penal Code, 1860 [hereinafter referred to as

“IPC”].

2. The brief facts necessary to dispose of these appeals are that on

04.03.2005  at  about  8:00  p.m.,  one  Rajubhai  Jesingbhai

Vasava(PW1), along with Rajubhai Ramubhai Vasava (deceased),

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Rakeshkumar  Manharbhai  Patel  (PW2)  and  Prajeshkumar

Ishwarbhai  Patel  (PW3),  four  persons,  had  gone  to  Amboli

Cross-road, on two motorcycles, from the house of Rakeshbhai

Tailor at Kholwad, for eating Biryani and after reaching at the

Lari  of  Saddik  @  Lalbhai  Gulam  Hussain  Shaikh  of  Village

Kathor (Accused No.1), they ordered four plates of Biriyani. But

they  were  served  only  three  plates  of  Biriyani  with  chicken

pieces and one plate of Biriyani without chicken pieces. When

Accused No.1 insisted on payment for  four plates of  Biriyani,

there was a hot altercation between Rajubhai Ramubhai Vasava

and other prosecution witnesses, on the one hand and Accused

No.1 i.e. Saddikbhai @ Lalbhai Gulam Hussain Shaikh, on the

other.  Thereafter,  they  had  to  pay  money  for  four  plates  of

Biriyani and all this while Accused No.1 was abusing PW1 and

other  prosecution witnesses and had also  drawn out  a knife.

However,  PW3  intervened  and  separated  PW1  and  other

prosecution witnesses and Accused No.1.

3.  Thereafter,  when PW1 and other  prosecution witnesses were

travelling to Village Kholwad on two motorcycles, they met one

Kishorbhai  Kantibhai  Dholia  (PW5)  who  happened  to  be  the

uncle of PW1 and narrated the whole incident before him who

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assured  that  he  would  settle  the  dispute  since  he  was

well-acquainted with Accused No.1. Thereafter, while PW5 had

gone to fill petrol in his motorcycle, the accused persons came in

auto rickshaws to the spot where PW1 and other prosecution

witnesses were waiting for the return of PW5 and according to

the statement of the complainant (PW1) in the FIR, Accused Nos.

1,  2  and  3  caused  knife  injuries  to  the  deceased  Rajubhai

Ramubhai Vasava while other accused persons started beating

the complainant and other prosecution witnesses with sticks.  

4. Thereafter, the complainant, PW2 and PW3 had to flee to save

themselves and when they arrived at  the house of  PW1, they

recounted  the  entire  incident  to  his  father  Jesingbhai

Chhaganbhai  Vasava  (PW14)  who  immediately  rushed  to  the

scene of occurrence in the car of one Shri Aminbhai and carried

the severely injured Rajubhai to Dinbandhu Hospital wherefrom

he was shifted to Mahavir Hospital where he expired.

5. The  law  was  set  into  motion  upon  lodging  of  FIR  by  PW1

(complainant)  on  04.03.2005 at  11.55  p.m.,  at  Kamrej  Police

Station.  The FIR was registered as C.R.No.  I-30 of  2005. The

postmortem  of  the  deceased  was  performed  by  Dr.  Pranav

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Vinodchandra  Prajapati  (PW15).  Looking  to  the  postmortem

note, marked Exh. 67, there were injuries on chest, stomach and

intestine by knives.  

6. Upon completion of investigation, charge sheet under Sections

143, 147, 148, 149, 302, 323 and 504 of the IPC and Sections

3(1)(10)  and  3(2)(5)  of  the  Scheduled  Castes  and  Scheduled

Tribes  (Prevention  of  Atrocities)  Act,  1989,  was  filed  on

26.04.2005   in  the  Court  of  Judicial  Magistrate,  First  Class,

Kathor. However, the case being exclusively triable by the Court

of  Sessions,  Surat,  the  same  was  committed  to  the  Hon’ble

Sessions Court under Section 209 of the Cr.P.C. Accordingly, a

Special Atrocity Case No.6 of 2005 was registered against the

accused.  Thereafter,  upon  the  case  being  transferred  to  the

Court of Additional Sessions Judge, 2nd Fast Track Court, Surat

City, Surat, charges were framed against the accused persons

vide Exh.8, for the offences punishable under Sections 143, 147,

148, 149, 302, 323, 504 of IPC and under Sections 3(1)(10) and

3(2)(5)  of  the  Scheduled  Castes  and  Scheduled  Tribes

(Prevention of Atrocities) Act, 1989. After they denied the said

charges, the evidence of prosecution witnesses was recorded.

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7. Upon recording the evidence of the prosecution witnesses and

after considering all the relevant facts, the Trial court vide its

judgment  and  order  dated  16.11.2006  convicted  the  accused

persons, mainly for the offence punishable under Section 302

read with Sections 143, 147, 148, 323 of the IPC and sentenced

them to rigorous imprisonment for life and to pay a fine of Rs.

1,000/-  and  in  case  of  default,  to  undergo  further  simple

imprisonment  for  six  months.  The  accused  persons  were

acquitted of the offences punishable under section 504 of IPC

and Sections 3(1)(10) and 3(2)(5) of the Scheduled Castes and

Scheduled  Tribes  (Prevention  of  Atrocities)  Act,  1989.  Being

aggrieved by the aforesaid judgment and order of the Trial Court,

the accused persons filed appeals before the High Court. While

Accused  No.  5  preferred  Criminal  Appeal  No.  2000  of  2010,

Criminal  Appeal  No.  1999  of  2010  was  preferred  by  original

Accused Nos. 1 to 4, 6 and 7.  

8. The High Court vide its judgment and order dated 24.10.2008,

dismissed the  aforesaid  appeals  filed  by  the  accused persons

and confirmed the judgment of conviction passed by the Trial

court. Aggrieved by the aforesaid judgment and order passed by

the High Court, the accused persons have sought to challenge

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the same before us in these appeals.  

9. We have heard the learned counsel appearing for the accused

appellants  as  also  the  learned  counsel  appearing  for  the

respondents  and  have  perused  the  oral  and  documentary

evidence on record.

10.  The  principles  for  the  exercise  of  jurisdiction  in  a  petition

under  Article  136  of  the  Constitution  of  India  have  been

succinctly summarized by a two-judge Bench of this Court in

Ganga Kumar Srivastava Vs. The State of Bihar, (2005) 6

SCC 211, in the following terms:   

i.  “The  powers  of  this  Court  under Article  136 of  the

Constitution  are  very  wide  but  in  criminal  appeals  this

Court does not interfere with the concurrent findings of the

fact save in exceptional circumstances.

ii. It is open to this Court to interfere with the findings of

fact given by the High Court if  the High Court has acted

perversely or otherwise improperly.

iii. It is open to this Court to invoke the power under Article

136 only in very exceptional circumstances as and when a

question of  law of  general  public  importance  arises  or  a

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decision shocks the conscience of the Court.

iv. When the evidence adduced by the prosecution fell short

of the test of reliability and acceptability and as such it is

highly unsafe to act upon it.  

v.  The appreciation of evidence and finding is vitiated by

any  error  of  law  of  procedure  or  found  contrary  to  the

principles  of  natural  justice,  errors  of  record  and

misreading of the evidence, or where the conclusions of the

High Court are manifestly perverse and unsupportable from

the evidence on record.”   

11.  Keeping in mind the above position of law as enunciated and

settled  by  a  series  of  decisions  of  this  Court,  we  shall  now

examine the evidence adduced by the parties and the materials

on record and see that in view of the nature of offence alleged to

have been committed by the appellants, whether the concurrent

findings  of  fact  call  for  interference  in  the  facts  and

circumstances of the case.

12.  In the present case, there have been concurrent findings as to

the guilt of the accused persons by both the courts below. In

upholding  the  judgment  and  order  of  conviction  of  the  Trial

Court, the High Court had primarily relied upon the evidence of

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eye-witnesses, namely, PW1, PW2 and PW3, who were found to

be trustworthy  and their  statements corroborated each other.

The High Court held that the accused were sharing the common

object of causing injuries to the deceased and the prosecution

witnesses.  

13.  Further, looking to the evidence given by PW15 (Exh. 63), who

had performed the post-mortem of the deceased, the High Court

found that there were three stab injuries on the chest, stomach

and intestine  which were  sufficient  in  the  ordinary  course  of

nature,  to  cause  death  of  the  deceased,  thereby  attracting

clause, “thirdly” of Section 300 read with Section 149 of the IPC.

14.  The High Court  relied  upon the  judgment  of  this  Court  in

State of U.P. Vs. Virendra Prasad, AIR 2004 SC 1517= 2004

(9) SCC 37, in support of the aforesaid conclusion, wherein it

was held that the intention to cause death is not an essential

requirement of  clause (2),  but  intention of  causing the bodily

injury coupled with the offender’s knowledge of the likelihood of

such  injury  causing  the  death  of  the  particular  victim,  is

sufficient to bring the killing within the ambit of this clause of

section 300. It has also been held by this Court in the aforesaid

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case that as per clause Thirdly of Section 300 of the IPC, if the

act  is  done with the intention of  causing bodily  injury which

injury is sufficient in ordinary course of nature to cause death

and if the accused persons have common object to cause such

injury,  then also  it  will  fall  under  Section 300 of  IPC.  Thus,

intention to cause death is nothing decisive, but, as per clause

Thirdly of  Section 300 of the IPC, if  the accused were having

common object of causing only bodily injury, which were found

sufficient in the ordinary course of nature, to cause death, such

killing will fall within the ambit of this clause Third of Section

300 of IPC. Thus, looking to the deposition of the prosecution

witnesses, the offence of murder of Rajubhai Ramubhai Vasava

has been proved beyond reasonable doubt against the accused.

15.  Learned  counsel  for  the  appellants  has  tried  to  assail  the

findings of the Courts below on more than one grounds. It has

been contended that except Accused No.1,  the involvement of

other accused persons, even on looking to the injuries caused to

the deceased and the complainant, does not seem to be probable

and the prosecution has roped in accused persons as many as

possible  in  the  commission of  the  offence.  In  support  of  this

contention,  the  counsel  for  the  appellants  has  sought  to  rely

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upon the following decisions of this Court:  

State of Maharashtra Vs. Kashi Rao & Ors.,  (2003) 10 SCC

434;  Akbar Sheikh & Ors. Vs. State of West Bengal, (2009)

7 SCC 415; Rachamreddi Cheena Reddy Vs. State of A.P.,

(1999) 3 SCC 97; Fatta & Ors. Vs. State of U.P., (1980) Supp

SCC 159; and Zahoor & Ors. Vs. State of U.P., (1991) Supp(1)

SCC 372.  

All  these decisions are to the effect that mere presence in an

unlawful  assembly without sharing the common object  of  the

same,  will  not  render  a  person  liable  for  an  offence  under

Section 149 of the IPC and also as to what constitutes ‘common

object’ in terms of Section 149 IPC.

16.  Per contra, the learned counsel for the State has submitted

that  every  member  of  the  unlawful  assembly  who had joined

Accused No. 1 has to be punished under Section 302 read with

section  149  ingredients  whereof  have  been  squarely  met.  In

support of this submission, the learned counsel for the State has

placed reliance on the judgment of this Court in  Lalji & Ors.

Vs. State of U.P., (1989) 1 SCC 437, particularly paragraphs 8,

9 and 10, which have been reproduced below:

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“8.  Thus, whenever so many as five or more persons meet  together  to  support  each  other,  even  against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their  common object,  the  mere  fact  of  their  having thus met will constitute an offence. . . .  

9.  Once  the  case  of  a  person  falls  within  the ingredients  of  the  section  the  question  that  he  did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his  own  hands  commit  the  offence  committed  in prosecution  of  the  common  object  of  the  unlawful assembly  or  such  as  the  members  of  the  assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the  persons forming an unlawful  assembly must  do some overt act. When the accused persons assembled together,  armed with lathis,  and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by  which  of  the  accused.  This  section  makes  a member  of  the  unlawful  assembly  responsible  as  a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act  and  active  participation  may  indicate  common intention  of  the  person  perpetrating  the  crime,  the mere presence in the unlawful assembly may fasten vicariously  criminal  liability  under section  149.  It must be noted that the basis of the constructive guilt under section 149 is mere membership of the unlawful

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assembly,  with  the  requisite  common  object  or knowledge.

10.  Thus,  once the Court hold that  certain accused persons formed in unlawful assembly and an offence is  committed  by  any  member  of  that  assembly  in prosecution of the common object of that assembly, or such  as  the  members  of  the  assembly  knew  to  be likely to be committed in prosecution of that object, every person who at  the  time of  committing of  that offence was a member of the same assembly is to be held  guilty  of  that  offence.  After  such  a  finding  it would  not  be  open  to the  Court  to  see  as  to  who actually  did  the  offensive  act  or  require  the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it.”

17.  In this regard, the observations made by the High Court in the

present case on this point are worth reproducing:

“It  is vehemently contended by learned counsel  for the  appellants  that  accused  Nos.2  to  7  were  not sharing  common  object,  which  is  described  under Section 141 of the Indian Penal Code and they ought not to have been punished for an offence punishable under Sections 143 and 147, 302 read with Section 149 of the Indian Penal Code. This contention is not accepted by this Court mainly for the reasons that

(a)Looking to the evidence, it  appears that initially there was  hot  altercation  between  the  deceased  and P.W.Nos.1, 2 and 3 with accused No.1 at lari of accused No.1 for payment of four plates of biriyani. Accused No.1 pointed a knife to the deceased.  

(b)Accused  No.1  thereafter  had  gone  and  called  his brothers and friends.  

(c) They all came in two rickshaws with knives and sticks.

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(d)Thus,  all  the  accused  were  going  for  a  particular purpose, they were going with knives and sticks, their object was common.  

(e) The common object is also revealed by their assault. No sooner did, they saw the deceased, P.W.Nos.1, 2 and 3, they alighted from the rickshaws, assaulted them with knives and sticks.  

(f) Rajubhai Vasava sustained three stab injuries,  as per medical  evidence  and  postmortem  note,  which corroborate  the  evidence  given by  injured  eye-witness P.W.No.1  and  evidence  given  by  other  eye-witnesses P.W.no.2 and 3.

(g) P.W.No.1 has also sustained two injuries by sticks, who is examined by Doctor i.e.  P.W.No.12, who has stated that P.W.No.1 was brought with police yadi (Exh- 62), who  has  examined  P.W.No.1  and  issued  Injury Certificate  at  Exh-63.  Looking  to  his  deposition  and cross-examination, injuries by sticks were fresh. Thus, both knives as well as sticks were used.”

18.  In Gangadhar Behera and Ors. Vs. State of Orissa, (2002)

8 SCC 381, this Court has held:

“Even  if  the  offence  committed  is  not  in  direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the  offence  was  such  as  the  members  knew  was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members  is  the  same,  the  knowledge  that  is  the object which is being pursued is shared by all  the members  and they  are in general  agreement  as to how it is to be achieved and that is now the common object of  the assembly.  An object is  entertained in the  human  mind,  and  it  being  merely  a  mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act

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which the person commits and the result therefrom. Though  no  hard  and  fast  rule  can  be  laid  down under  the  circumstances  from which  the  common object  can  be  called  out,  it  may  reasonably  be collected from the nature of  the assembly,  arms it carries and behaviour at or before or after the scene of incident.”

 19.  Further, once it is established that the unlawful assembly had

a common object, it is not necessary that all the persons forming

the unlawful assembly must be shown to have committed some

overt act. For the purpose of incurring vicarious liability under

the  provision,  the  liability  of  other  members  of  the  unlawful

assembly for the offence committed during the continuance of

the occurrence, rests upon the fact whether the other members

knew before hand that the offence actually committed was likely

to  be  committed  in  prosecution  of  the  common  object.  [See:

Daya  Kishan  Vs.  State  of  Haryana, (2010)  5  SCC

81; Sikandar Singh Vs.  State of  Bihar, (2010) 7 SCC 477,

State  of  U.P.  Vs.  Krishanpal  &  Ors., (2008)  16  SCC  73,

Debashis  Daw  Vs.  State  of  W.B.,  (2010)  9  SCC  111, and

Ramachandran & Ors  Vs.  State  Of  Kerala, (2011)  9  SCC

257].

20.  In the light of the above discussion, we are of the opinion that

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none of the cases cited above help the cause of Accused Nos. 2

to 7 to warrant acquittal under Section 149 IPC. Thus, we find

no reason to differ with the findings of the High Court on this

point and we do not accept the contention of the learned counsel

for the appellants that a case under Section 149 is not made out

against Accused Nos. 2 to 7.

21.  The contention of the counsel for the appellants that there was

no reason for Accused No.1 to commit assault on the deceased,

is liable to be dismissed as unsustainable in view of the evidence

of the eye-witnesses, namely, PW1, PW2 and PW3.  

22.  It is settled legal position that even if the absence of motive, as

alleged, is accepted, that is of  no consequence and pales into

insignificance  when  direct  evidence  establishes  the  crime.

Therefore,  in  case  there  is  direct  trustworthy  evidence  of

witnesses as to commission of an offence, the motive part loses

its  significance.  Therefore,  if  the  genesis  of  the  motive  of  the

occurrence is not proved, the ocular testimony of the witnesses

as to the occurrence cannot be discarded only on the ground of

absence of motive, if otherwise the evidence is worthy of reliance.

[See: Hari Shankar Vs. State of U.P., (1996) 9 SCC 40; Bikau

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Pandey & Ors. Vs. State of Bihar,  (2003) 12 SCC 616; Abu

Thakir & Ors. Vs. State of Tamil Nadu, (2010) 5 SCC 91;

State of U.P. Vs. Kishanpal & Ors.,  (2008) 16 SCC 73; and

Bipin Kumar Mondal Vs.  State of  West Bengal, (2010)  12

SCC 91].

23.  It has also been contended by the counsel for the appellants

that the evidence is silent and vague as to who inflicted the stick

injuries upon PW1. Moreover, the injuries were only on the back

and thigh of PW1 while there was no evidence of any injury upon

PW2 and PW 3. It was further submitted that though appellant

Nos.2 and 3 were armed with knives,  the evidence on record

shows that appellant Nos.2 and 3 did not inflict any injury upon

anyone with their knives. Further, since the original quarrel did

not involve appellant Nos. 2 to 7 and the same was confined to

the  deceased and the  prosecution witnesses  on one side  and

Appellant No. 1 on the other, Appellants nos. 2 to 7 did not have

any motive/intention to murder the deceased.

24.  These  contentions  made  by   the  learned  counsel  for  the

appellants  are  not  liable  to  be  accepted  in  light  of  the

observations of  this  Court  in  Masalti  Vs.  State of U.P., AIR

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1965 SC 202= 1964(8) SCR 133, wherein it was held:

“Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of  the common object of  the unlawful  assembly,  it  is  often  not  possible  for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of  persons  armed  with  weapons  assaults  the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present  case,  for  instance,  several  weapons  were carried  by  different  members  of  the  unlawful assembly,  but it  appears that  the  guns were used and that  was enough to  kill  5  persons.  In such a case,  it  would  be  unreasonable  to  contend  that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their  best  in  dealing  with such cases  and it  is their  duty to sift  the evidence carefully and decide which part of it is true and which is not.”

25.  It  has been next  contended by the learned counsel  for  the

appellants, as an alternative submission, that Accused Nos.2 to

7 are liable to be sentenced under Section 304 (Part-II) of the IPC

since they did not have any intention of committing the murder

of the deceased. We are not inclined to agree with the learned

counsel  for  the  appellants  in  the  light  of  the  findings  of  fact

recorded by the High Court as well as the judgment of this Court

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in State of U.P. Vs. Virendra Prasad (supra).  

26.  Moreover, the locus classicus on the interpretation of Sections

299 and 300 of the IPC is the often quoted decision of this Court

in Virsa Singh Vs. State of Punjab, AIR 1958 SC 465 = 1958

SCR  1495, where  Vivian  Bose,  J.  speaking  for  the  Court,

explained the ingredients that must be satisfied for a culpable

homicide  to  amount  to  murder.  Dealing  with  clause  ‘Thirdly’

under Section 300 of the IPC, the Court explained the essentials

of that clause in the following words:  

“12. To put it shortly, the prosecution must prove the following  facts  before  it  can  bring  a  case under Section 300 ‘thirdly’;

First, it must establish, quite objectively, that a bodily injury is present.

Secondly,  the  nature of  the injury  must  be  proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that  it  was not  accidental  or  unintentional,  or  that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be

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proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in  the  ordinary  course  of  nature.  This part of the enquiry is purely objective and inferential and  has  nothing  to  do  with  the  intention  of  the offender.”

27. This Court then went on to explain the third ingredient referred

to the above passage and made the following observations:

“The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended  to  inflict  the  injury  that  is  proved  to  be present.  If  he  can show that  he  did  not,  or  if  the totality  of  the  circumstances  justify  such  an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the  only  possible  inference  is  that  he  intended  to inflict  it.  Whether  he  knew  of  its  seriousness,  or intended serious consequences, is neither here nor there.  The  question,  so  far  as  the  intention  is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but  whether  he  intended  to  inflict  the  injury  in question;  and  once  the  existence  of  the  injury  is proved  the  intention  to  cause  it  will  be  presumed unless the evidence or the circumstances warrant an opposite conclusion.”

28.  Applying  the  above  tests  to  the  case  at  hand,  we have  no

difficulty  in  holding  that,  keeping  in  view  the  nature  of  the

injury, the vital part of the body on which the same was inflicted

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and the weapon used by the Accused No. 1, and the medical

evidence, the said injury was sufficient in the ordinary course to

cause death.

29.  Finally, it has been argued by the counsel for the appellants

that there was no prior enmity between Accused No.1 and the

deceased and the prosecution witnesses and that he committed

the crime in the heat  of  passion upon a sudden quarrel  and

therefore, his case, is covered under Exception 4 of Section 300

IPC and therefore, he may at best be convicted under Section

304 Part II of the IPC.  

30.  On the other hand, it has been submitted by the counsel for

the State that the incident did not happen in the middle of any

heated  exchange  between  parties  but  as  a  result  of  a  cold

blooded plan to murder the deceased. Had the incident occurred

in the heat of the moment during violent altercations, then it

would have happened in Accused No.1’s Biriyani stall. The very

fact that Accused No.1 had arrived at the scene of the crime with

nine armed men in two auto rickshaws goes to show that he had

the  fullest  intent  to  commit  the  murder  of  the  deceased

Rajubhai. Thus, Accused No.1 was liable to be punished only

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under  Section 302 of  IPC and not  under  Part  I  or  Part  II  of

Section 304, he urged.  

31.  The law relating to appropriate invocation of Exception 4 to

Section 300 of  the IPC, has been laid down by this Court in

Surinder Kumar Vs. Union Territory, Chandigarh, (1989) 2

SCC 217, in the following words:

“To  invoke  this  Exception  four  requirements  must  be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. 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. 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.”

32.  Applying these tests to the case at hand, we find that they do

not help the cause of Accused No.1. In the present case, Accused

No.1 had arrived at the scene of  occurrence with nine armed

men out of which three were equipped with knives and the rest

were  equipped  with  sticks.  Sufficient  amount  of  time  had

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elapsed  between  the  initial  altercation  at  the  restaurant  of

Accused No.1 and the subsequent arrival of the accused persons

at the spot of the crime. Moreover, it was also established from

the  evidence  on record that  Accused No.1  had inflicted  knife

injury of such a nature, upon the unarmed deceased, that was

sufficient  in  the  ordinary  course  of  nature  to  cause  death.

Hence, we are not inclined to grant the benefit of this Exception

clause to Accused No.1 in the present case.

33.  Thus, in the light of the above discussion, we are of the view

that the present appeals are devoid of merits, and we find no

ground to interfere with the judgment passed by the High Court.

The appeals are, accordingly, dismissed.

….....….……………………J (Pinaki Chandra  Ghose)

….....…..…………………..J (Amitava Roy)

New Delhi; October 03, 2016.