Introduction

Sudden fight is one of four partial defences to murder in the Indian Penal Code. It was a
late addition which lacks the qualifying provisos and illustrations that constrain
applications of the partial defences of provocation and excessive force in private
defence. A survey of recent decisions of the Indian Supreme Court suggests that
sudden fight has the potential to subvert the principled limits that constrain the other
partial defences. Sudden fight has no equivalent in other Commonwealth jurisdictions. It
can be argued that it is an anachronism that should be eliminated from the law of
murder. This essay argues in favour of its retention. The partial defences of provocation,
excessive defence, sudden fight and consent are unified by an underlying principle of
comparative responsibility that extenuates murder when the offender was seriously
wronged by the victim or acted with the consent of the victim to die or engage in an
activity that was likely to result in death. A set of provisos and illustrations is proposed
that will constrain applications of the partial defence of sudden fight in conformity with
the principle of comparative responsibility.
In jurisdictions which adopted the Indian Penal Code, the partial defence of sudden fight
reduces murder to the lesser offence of culpable homicide.1 Sudden fight is the direct
descendant of mutual combat, a common law defence which reduced murder to
manslaughter when death resulted from an injury inflicted in anger during a sudden,
unpremeditated fight on equal terms with no unfair advantage taken. Mutual combat has
not survived in common law or in the statute law of other Commonwealth jurisdictions.2
It was absorbed by the partial defence of provocation as courts extended the
applications of that defence during the latter part of the 19th and the 20th centuries. In
his monograph on criminal defences in the IPC,
Professor Stanley Yeo canvassed the suggestion that the partial defence of sudden
fight should be abolished.3 He concluded, without enthusiasm, that it should be retained
because people who kill in the course of a sudden fight are less morally culpable than,
say, those who coolly plan and carry out a murder.4 Sudden fight is an enigma that
encompasses many unanswered questions. The first and most obvious is why a partial
defence that has been absorbed by provocation elsewhere should be retained as an
independent ground for extenuation in IPC jurisdictions. Stanley Yeo makes the point
that sudden fight has applications that go beyond the reach of provocation. These will
be identified in the discussion that follows. That does not, of course, justify retention. If
sudden fight cannot be brought within the exculpatory limits of provocation or the other
partial defences, one must ask what independent grounds of principle there are for
sudden fight to extenuate murder. ProfessorYeos passing suggestion that it should be

retained because there is a difference in moral culpability between killing in a sudden

fight and premeditated killing is not sufficient to justify retention. Premeditation is not a
defensible criterion when moral or legal culpability for homicide is in issue, for brutal
malignity may be spontaneous and sympathetic instances of euthanasia are invariably
premeditated.
The need for principled justification is apparent from a consideration of the apparent
anomalies of the defence. Murder is extenuated though the offender did not kill with the
intention of defending person or property, in circumstances where there was nothing
that could be described as grave and sudden provocation and though the offender,
albeit moved by anger, retained their self-control. Something more than a rough
equivalence of weaponry and absence of premeditation is required if there is to be
principled justification for this additional partial defence.

Meaning
This exception applies to cases where in death is caused by sudden fight without
premeditation in th heat of passion upon a sudden quarrel so long as the fight is
unpremeditated and sudden the accused ,irrespective of his conduct before the quarrel,
earnes the mitigation providided for in exception 4 to section 300 I.P., subject to the
condition that he did not in the course of the fight take undue advantage or acted in a
cruel or unusual manner.

This exception applies to instances which are covered by the 1 exception . however
under exception1 . the provocation should not only be sudden and grave , but it should
also couse deprivation of self control .
However inder exception 4 offender loses his power of reasoning due to heat of
passion aroused suddenly .

Essential ingredients
To invoke the benefit of this clause , death must be caused
1. in a sudden fight
2. in the heat of passion without premeditation arising out of sudden quarrel
3. without the offenders having taken undue advantage
4. the offender should not act in a cruel or unusual manner
5. the fight must have been with the person killed

Without premeditation

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 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 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
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). When the
factual scenario is considered in the legal principles indicated above, the inevitable
conclusion is that Exception 4 to Section 300 IPC has no application to the facts of the
case. The appeal filed by Sachchey Lal is without merit. Now comes appeal filed by the
State

Suraj Mal vs State Of Punjab on 25 October, 1991

The appellant Suraj Mal who stands convicted under Section 302 IPC and sentenced to
imprisonment for life has preferred this criminal appeal challenging the correctness and
legality of the judgment rendered by the High Court of Punjab and Haryana in Criminal
Appeal No. 1120 of 1977. According to the prosecution the deceased Rajbir was found
lying in an injured condition at about 11.45 p.m. on 28.4.77 on the Sangrur-Dhuri Road
by PW-5 and PW-6 employees of the above said milk center. PW 6 stayed there and
PW-3 proceeded to the city to inform the police but on the way he met two constables
near the civil hospital and brought them to the scene spot. As the condition of the
injured was very serious, the injured was removed to the civil hospital, Sangrur. In the
opinion of the Medical Officer, the injured was in a fit condition to make his statement.
The Assistant Sub-Inspector of Police who had already been informed about this
incident came to the hospital and recorded the statement of the injured Rajbir under
Ex.PL at about 11.25 a.m. in the presence of the Medical Officer. The injured has stated
in his statement which serves as a dying declaration in this case that it was his brother
Suraj Mal, namely, the appellant herein stabbed him because of a land dispute between
them. On the basis of the first information report a case was registered and the
investigation proceeded.
The totality of the evidence in our considered opinion, leads to an irresistible conclusion
that the offence that the appellant had committed is one punishable under Section 304
Part I, IPC but not under Section 302 IPC (simplicitor), since Exception 4 is attracted to

the facts of this case. In the result, we set aside the conviction under Section 302 IPC
(simplicitor) and the sentence of imprisonment for life imposed therefor, instead convict
the appellant under Section 304 Part I IPC and sentence him to undergo rigorous
imprisonment for a period of seven years. The appeal is disposed of subject to the
modification of the conviction and the sentence as indicated above.

Restating the Limits of the Sudden Fight Defence

A survey of recent appellate decisions of the Indian Supreme Court in which the
appellant succeeded in overturning a conviction for murder, suggests that the defence
of sudden fight has lost contact with its doctrinal moorings: see Appendix. In the
proposals for reform that will follow, I will address that particular concern. Before doing
so, however, it is necessary to outline the critical distinctions between sudden fight and
provocation.

Exception 4 to section 300 IPC does not apply in case of an unarmed person who
makes no threatening gesture supreme court -1956
Narayanan Nair Raghavan Nair vs The State Of Travancore-Cochin on 26
September, 1955

( 1. ) THE appellant Raghavan has been convicted under S. 302, Indian Penal Code,
for murdering one Ayyappan and has been sentenced to death. His younger brother
Bhaskaran was also charged but was convicted under S. 324, Indian Penal Code, and
sentenced to two years. We are not concerned with him here.
( 2. ) THERE are six eye-witnesses to the murder, all of whom have been believed by
both the Courts. We decline to go behind this evidence and so will proceed at once to
assess the case on the basis of the facts found. They are as follows : Litigation was in
progress between the appellant and his grandmother Parvathi Amma. The latter sued
the appellant and his brother for partition and separate possession of her share in her
son's estate, the son being the father of the appellant and his two brothers (one of
whom does not figure in this case). During the course of proceedings the grandmother
Parvathi Amma assigned her interest to her daughter Parvathy Lakshmi Amma
(Prosecution Witness 10). This Parvathi (Prosecution Witness 10) is the widow of the

deceased Ayyappan. After notice to the parties, Balkrishna Pillai (Prosecution Witness
5) and Thomas Kuriyan (Prosecution Witness 6), the Commissioners appointed to effect
the partition, proceeded to the spot, carried out a survey and made certain
measurements. While this was in progress, the two accused came on the scene and
started pelting Velayudhan Nair (Prosecution Witness 1) with stones and abusing him.
This Velayudhan Nair is the son-in-law of the deceased Ayyappan. Some of the stones
hit the witness and there are injuries on his person to bear this out. Both Courts have
accepted this evidence. The only thing they have not been able to determine is which of
the several stones that were thrown actually hit the witness. But the fact that the
appellant and his brother started the assault by pelting Velayudhan (Prosecution
Witness 1) with stones and abusing him is accepted.Velayudhan (Prosecution Witness
1) retaliated by slapping the appellant across the cheek. This resulted in a minor scuffle
between the two Krishnan Nair (Prosecution Witness 14) and the deceased came upto
them, and the former (Krishnan Nair) tried to separate them, while the deceased, who
was Velayundhan's (P.W. 1's) father-in-law, said to his son-in-law -"Velayudhan! You
should not quarrel. I shall find a solution for this." The appellant thereupon took a
penknife from his waist and hit out at the deceased. The deceased tried to ward off the
below and was hit on the back of his left forearm. The appellant struck again and this
time the blow landed on the chest and caused the injury which eventually killed the
man. In the meanwhile the second accused came up and inflicted a stab wound on the
deceased's back with another knife. This could not have caused death though the
doctor says it probably aggravated the shock from the fatal wound. Each accused has
been held individually liable for the separate injuries caused by him. S. 34 of the Indian
Penal Code was not called into play.
.

Exception 4 applicable injury inflicted in sudden fight with the knife supreme
court 1976

Amrithlinga nadir v state of tamil nadu

1. The appellant and four other accused were tried by the Sessions Judge, Tirunelveli
on various offences on the allegation that they formed an unlawful assembly with the
common object of causing the death of Sudalaikannu Nadar (hereinafter referred as the
deceased) and in pursuance of this common object, the appellant committed the murder
of the deceased by inflicting a blow with a short spear M.O. 1, commonly used for killing
rats. The learned Sessions Judge acquitted the appellant as well as the four accused,
but, on appeal by the State, their acquittal was reversed and the appellant was
convicted for the offence under Section 302 and sentenced to suffer imprisonment for
life, while, out of the other four accused, accused No. 2 was convicted of the offence
under Section 147 and sentenced to pay a fine of Rs. 100/-, or in default of payment of
fine, to suffer simple imprisonment for one month and accused Nos. 3 to 5 were
convicted of the offence under Section 148 and each of them were sentenced to pay a
fine of Rs. 150/- or in default to suffer simple imprisonment for six weeks. Since the
acquittal of the appellant was reversed and he was convicted and sentenced to suffer
imprisonment for life, he was entitled to prefer an appeal to this Court under Section
2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970
and he accordingly preferred the present appeal to this Court.

2. The incident out of which the present appeal arises took place on 18th September,
1969 in a village Alagiavilai. There was a festival in this village during a period of two or
three days immediately prior to the date of the incident in the temple of
Muthumariamman and for celebrating this festival a subscription of Rs. 35/- per family
was collected from the residents of the village. It appears that PW3, a younger brother
of the deceased, was unable to pay the amount of the subscription due from him and
he, therefore, pledged a brass vessel in favour of the organisers of the festival. The
festival was celebrated by arranging various performances and amongst those who
were called for giving the performances were one piper and one troupe called Villupattu
troupe. The festival being over, some of the organisers gathered together under a
tamarind tree at about 3.30 p.m. on 18th September, 1969 for the purpose of disbursing
monies to the various performing artistes and finalising the accounts. Those present
included the appellant and the four accused, one Pauldurai, one Swarnalingam, one
Sivalinga Nadar, P.W. 3 and P.W. 8. The piper was paid Rs. 5/- more than the stipulated
charge while the Villupattu troupe was paid Rs. 5/- less than what was agreed with

them. P.W. 3 protested against this iniquitous differentiation and insisted that Villupattu
troupe should be paid the stipulated charge. The second accused at once taunted PW 3
by saying: "You are a man who has no means to pay the subscription. What right have
you to enter a protest?" This remark angered PW 3 and he beat the second accused.
The second accused, Pauldurai and Swarnalingam retaliated by beating PW 3, on
which PW 3 raised an alarm. The deceased was at that time taking food in his house
which was on the eastern side of the pathway leading to the house of PW 1 and on
hearing the alarm of his brother, PW 3, he rushed to his rescue with a knife M.O. 3 in
his hand. Pauldurai and Swarnalingam caught hold of the deceased, but the deceased
gave knife blows and both Pauldurai and Swarnalingam sustained injuries on their
hands. So far there was no dispute between the prosecution and the defence and both
parties accepted that this is in fact what happened. But from this point onwards there
was divergence between them.

.
We, accordingly, convert the conviction of the appellant from one under Section 302,
I.P.C. to that under Section 304, Part I, I.P.C. So far as concerns the sentence to be
imposed on the appellant for this offence, it may be pointed out that the appellant has
already been in Jail for more than five years and hence we think it would meet the ends
of justice if we reduce the sentence to that already undergone by him.

Exception applicable death caused in sudden quarrel does not indicate act by
taking undue advantage supreme court 1989

Ghapoo Yadav and Ors. v. State of M.P. (2003) 3 SCC 528, where in court held:
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'.

Sukbhir Singh v. State of Haryana (2002) 3 SCC 327, the Court observed:
All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes
of not availing the benefit of Exception 4 of Section 300 IPC. After the injuries were
inflicted and the injured had fallen down, the appellant is not shown to have inflicted any
other injury upon his person when he was in a helpless position. It is proved that in the
heat of passion upon a sudden quarrel followed by a fight, the accused who was armed
with Bhala caused injuries at random and thus did not act in a cruel or unusual manner.

Chamru Budhwa v. State of Madhya Pradesh AIR 1954 SC 652 in which case also
the exchange of abuses had led both the parties to use lathis in a fight that ensued in
which the deceased was hit on the head by one of the lathi blows causing a fracture of
the skull and his ultimate death. The accused was convicted for the offence of culpable
homicide not amounting to murder under Section 304, Part II of the IPC.

Conclusion

Sudden fight was a late addition to the IPC and it was never
integrated, by provisos and illustration in the code provisions on
murder. The cases suggest that there is an unprincipled drift in
the applications of the partial defense
An explicit statement of provisos and illustrations to constrain the
application of sudden fight has been proposed
Intentional killing is extenuated when it is a response to a serious
wrong by the victim or the conduct of te victim evinces their
consent to die or engage in mutual combat in the knowledge that
death is likely or certain