Supreme Court of India
BABAN BANDU PATILversusSTATE OF MAHARASHTRA
- Citation
- 2009 INSC 499
- Decided
- 15 April 2009
- Disposal
- Case Partly allowed
- Bench
- ARIJIT PASAYAT
Holding
The appellant is liable for culpable homicide not amounting to murder under Section 304 Part I of the IPC.
Summary
The appellant Saban Bandu Patil and six co‑accused were tried for the death of Vithoba and injuries to others arising from a family dispute that escalated into a violent altercation. The trial court convicted three of the accused under Sections 302 and 324 read with Section 34 IPC, while acquitting four. The High Court upheld the appellant’s conviction under the same provisions. On appeal, the appellant contended that the incident was a sudden quarrel and should not attract murder liability. The Supreme Court examined the applicability of Exception 4 to Section 300 IPC, clarifying that a "sudden fight" requires mutual provocation, no pre‑meditation, no undue advantage, and the fight must be with the person killed. Finding these elements absent, the Court held that the appropriate charge is culpable homicide not amounting to murder under Section 304 Part I IPC, imposing a ten‑year sentence. The appeal was partly allowed, modifying the conviction.
Issues considered
- The correct offence under the IPC: murder (s.302) versus culpable homicide not amounting to murder (s.304 Part I).
- Whether Exception 4 to s.300 IPC applies to the facts, thereby reducing liability.
- The interpretation of "sudden fight" and "undue advantage" under Exception 4.
- The sufficiency of the prosecution evidence to sustain a conviction under s.302.
Legislation cited
- Indian Evidence Act, 1872s. 27
- Indian Penal Code, 1860s. 300, s. 302, s. 304(Part I), s. 324, s. 34
Subjects
IPCmurderculpable homicideSection 302Section 304Exception 4sudden fightcriminal appealSupreme Court of India
Judgment
(2009] 6 S.C.R. 172
•
A SABAN BANDU PATIL
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 1312 of 2007)
APRIL 15, 2009
B
[DR. ARIJIT PASAYAT, LOKESHWAR SINGH PANTA
AND P. SATHASIVAM, JJ]
Penal Code, 1860 :
c ·-
s. 304 (Part /) - Prosecution ulss. 302 and 324 rlw s. 34
- Of the accused alongwith six co-accused - conviction of
accused by courts below - co-accused acquitted - On appeal,
Held: On facts, appropriate convictions would be u/s 304 (Part-
/).
D
s.300 Exception 1 and 4 -Applicability of and distinction
between - Discussed.
Words and Phrases - "Sudden fight" - Meaning of, in
E the context of /PC.
Seven accused, including the appellant, were
prosecuted for causing death of one and for causing
injuries to others. Trial Court convicted three of' the
accused u/s. 302 and 324 r/w s.34 IPC, placing reliance
F on the ocular evidence of PWs 1, 5 and 9, while acquitted
four of the accused. In appeal, High Court confirmed the
conviction of the appellant-accused while acquitting the
two accused.
G In appeal to this Court, appP•lant contl?nded that in
view of the factual scenario that ti" _dispute arose over "
petty matter and the blow was given in the course of
sudden quarrel, the case is not relatable to s.302 IPC.
H 172
BABAN BANDU PATIL v. STATE OF MAHARASHTRA 173
'
Partly allowing the· appeal, the Court A
HELD:1.1. Considering the background facts it
would be appropriate to convict the appellant for offence
punishable under Section 304 (Part I) IPC. [Para 8]
1.2. PW 1, PW 5 and PW 9 had stated about the B
assaults made. All the three witnesses did not speak
about the assaults on the deceased by the accused. P.W-
5 did not witness the assault on the deceased as well as
PW-1's evidence is relevant so far as assault on himself
is concerned. PW-S's evidence is of considerable c
importance. According to him while he was returning to
his house he saw quarrel and the manner of assault by
the appellant. [Para 5] [179-0-F]
2.1. For bringing in operation Exception 4 to Section D
300 IPC it has to be established that the act was
committed without premediation, 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. [Para 6] [179-F-G] E
2.2. 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 F
principle, for in both there is absence of premediation.
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 G
"
• otherwise do. There is provocation in Exception 4 as in
Excepti()n 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
'H
174 SUPREME COURT REPORTS [2009] 6 S.C.R.
A 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 7] [179-G-H; 180-A-C]
B
2.3. The help of Exception 4 can be invoked if death
is caused (a) without premediation, (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
C within Exception 4 all the ingredients mentioned in it must
be found. 'Fight' occurring in Exception 4 to Section 300
IPC is not defined in the IPC. 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
D whether a quarrel is sudden or not must necessarily
depend upon the proved facts of each case. [Para 7] [180-
E-G; 181-A]
2.4. A 'sudden fight' implies mutual provocation and
E 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
F or determination to fight. [Para 7] [180-C-D]
Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, 2003
(5)SCC 223; Parkash Chand v. State of H.P., 2004(11) SCC
381; yvarapu Raju v. State of A.P. and Anr., 2007 (11) SCC
218 and Hawa Singh and Anr. v. State of Haryana, 2009(1)
G SCR 324, relied on.
Case Law Reference:
2003 (5) sec 223 relied on Para 7
H
BABAN BANDU PATIL v. STATE OF MAHARASHTRA 175
• 2004 (11) sec 381 relied on Para 7 A
2001 (11) sec 218 relied on Para 7
2009 (1) SCR 324 relied on Para 7
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal B
No. 1312 of 2007.
From the Judgment & Order dated 06.12.2006 of the High
Court of Judicature at Bombay, Bench at Aurangabad in
Criminal Appeal No. 759 of 2004.
c
Sudhanshu S. Chaudhary and Naresh Kumar for the
Appellant.
Ravindra Keshavrao Adsure for the Respondents.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
to the judgment of a Division Bench of the Bombay High Court,
Aurangabad Bench, upholding the conviction of the appellant
for offence punishable under Sections 302 and 324 read with E
Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'),
while directing acquittal of two co-accused persons who had
faced trial for the alleged commission of offences punishable
under Sections 302 and 324 read with Section 34 IPC. All the
Y three accused persons were found guilty of the aforesaid F
charges by learned II Additional Sessions Judge, Dhule.
2. Background facts in a nutshell are as follows:
First Information Report was lodged by one Krishnaji at
Dhule Police Station on 7.7.2001 at 0030 hrs. It was alleged G
by him in the report that on 06.07.2001 he was with his father
in the thrashing floor. One Bandu Rambhau Patil is his uncle ..
Partition between his father and uncle Bandu took place prior
' to the lodging of the report. Despite partition, the agricultural
H
176 SUPREME COURT REPORTS [2009] 6 S.C.R.
A lands were standing in the name of his father Vithoba. In the •
evening of 06.07.2001, at about 7.00 p.m. a calf which was tied
in his thrashing floor, untied itself and went to the thrashing floor
of his uncle Bandu. Krishnaji followed the calf to the thrashing
floor of his uncle Sandu, caught hold of it and brought it back
S to his thrashing floor. At that time his uncle Sandu, Accused No.
1 Saban and Accused No. 2 Navnath were present. They
scolded him on account of the calf entering their thrashing floor.
He explained that calf had un-tied itself and that it was not a
deliberate act on his part. He returned to his thrashing floor
c along with thE! calf.
After some time, his uncle Sandu and Accused no.2
Navnath and Accused no.1 Saban came to their thrashing floor
and hurled abuses at them. A-1 assaulted his father with an axe.
The stroke was given on the head of Vithoba. His uncle Sandu
D assaulted Krishnaji and his father with a stick. Accused No. 2
Navnath also assaulted him and his father with a stick. The
assailants aftE!r noticing the injuries, left for their house. He along
with his father Vithoba returned to his house. On the way to their
house, they were also accompanied by one Prakash Shandane
E - husband of his aunt.
At about 7.15 p.m. his mother Sindhubai was also abused
by Accused Nos. 1 and 2 and other co-Accused, who are
acquitted by the trial Court. At that time Prakash (PW 5)
F requested them not to scold Sindhubai. Accused no.2, Accused
no.1 and other Accused persons assaulted his mother
Sindhubai as well as Prakash (PW 5). At that time Accused
no.1 assaulted Prakash (PW 5) with sword, at his neck.
Sindhubai was also beaten by other lady accused persons by
fists and blows. This beating was witnessed by Meerabai,
G
Nadarbai, Sadashiv etc. and these witnesses have rescued
Sindhubai and Prakash (PW 5). Thereafter, Krushnaji, in an
•
auto-rickshaw went to Dhule for lodging the report and for
treatment.
H On 06.07.2001 PSI Hiralal (PW 11) was on duty at Dhule
BABAN BANDU PATIL v. STATE OF MAHARASHTRA 177
[DR. ARIJIT PASAYAT, J.]
l/ Taluka Police station. Krushnaji's report was registered by A
Police Station Officer at Cr. No. 169 of 2001, under Sections
147, 148, 149, 307, 324, 504, 506 of IPC. Investigation was
taken over by PW 11 Hiralal. He registered the offence on
07.07.2001 at 00.30 hrs. At about 1.30 a.m. on 07.07.2001,
he arrested Accused Nos.1 to 6. In the morning of 07.07.2001, B
he drew panchanama of the scene of offence (Exhibit 80) with
the assistance of PW 8 Shantilal, a panch witness. At the time
of drawing spot panchanama ordinary soil as well as soil mixed .
with the blood was seized, kept in a packet and packet was
c
-
sealed. Along with Shantilal (PW 8), one more panch witness
Gopichand was present. Hiralal (PW 11 ), thereafter,
' · interrogated some witnesses and recorded their statements.
Thereafter, he handed over the investigation to API Deepak
Gotmare (PW 12).
API Deepak (PW-12) held inquest over the dead body of D
Vithoba in the presence of two panchas and recorded a
panchanama to that effect, which is at Exhibit 47. He also
recorded statements of Sindhubai, mother of PW 1 Krishnaji.
On 10. 7 .2001 Accused No. 4 showed readiness and 'E
willingness to disclose certain informations. API Deepak (PW-
12) called two panchas, namely; Ravindra and Aba. Information
given by Accused No. 4 Bandu was recorded in the presence
of panch witnesses under Section 27 of the Indian Evidence
" Act, 1872 (in short the 'Evidence Act'). This memorandum of F
panchanama is at Exhibit 93, which led with the discovery of
weapon is proved in the evidence of PW 3 Aba as well as in
the evidence of API Deepak (PW 12). In pursuance of the
information disclosed, the panch witness and Police Officers
were led by Accused No. 4 and the weapon alleged to have G
been used in the commission of crime i.e. stick was
• discovered at the instance of Accused no. 4. Said weapon was
attached and seized under panchanama Exhibit 94. API
Deepak (PW 12) also seized a steel bucket at the instance of
Accused No.2 from his house. He also seized the stick at the H
178 SUPREME COURT REPORTS [2009] 6 S.C.R.
A instance of accused No.2 from his house. •
According to API Deepak (PW 12) Accused No.1 Saban
made a disclosure statement regarding an axe. Said statement
was recorded under panchanama in the presence of panch
witnesses. According to the information received and at the
8
instance of Accused no. 1, said axe was discovered by API
Deepak (PW 12). This panchanama is at Exhibit 83. Thi~
panchanama is proved in the evidence of API Deepak (PW 12).
Under this panchanama Exhibit 83, two weapons had been
discovered at the instance of Accused No. 1, namely; axe
C (Article 17) and blade of harrow (Article 18). To prove this
panchanama, Exhibit 83, prosecution relied upon the evidence
of Aba (PW 3) as well as Deepak (PW 12).
API Deepak (PW 12) also clarified in his evidence that
D xerox copy of the panchanama is placed on record since the
original copy of page No. 2 of the panchanama was found
missing at the time of the trial. This xerox copy was exhibited
in the evidence of API Deepak (PW 12). This witness also
caused the examination of accused and collected blood
E samples. He, thereafter handed over investigation to API Satish
Jadhav.
API Satish (PW 13) recorded statements of two witnesses.
He arrested Accused No. 8 Kam'abai on 03.08.2001.
F Clothes of the deceased were seized, after the post
mortem under seizure panchanama. Investigation was
undertaken. API Satish PW-13 filed charge sheet against the
accused persons. On committal of the case of the Court of
Sessions, charge was framed by the learned Additional
G Sessions Judge, Dhule.
It is to be noted that in all seven accused persons faced
trail and out of them four persons were acquitted by the trial
Court. The trial Court noticed that the case of prosecution
H primarily rested on the ocular evidence of PWs 1, 5 and 9.
SABAN BANDU PATIL v. STATE OF MAHARASHTRA 179
[DR. ARIJIT PASAYAT, J.]
.,. · Placing reliance on their evidence the trial Court found the A
-., accused persons guilty while directing acquittal of four of the
accused persons before it. The matter was carried in appeal
before the High Court which as noted above confirmed the
conviction of the appellant while allowing the appeal filed by the
co-accused persons. It did not accept the plea of accused B
appellant that a case relatable to Section 302 IPC is not made
out as single blow was given.
3. In support of the appeal learned counsel for the appellant
submitted that the factual scenario clearly shows that over petty
matter the dispute arose and in course of sudden quarrel the
c
blow was given.
4. Learned counsel for the respondent-State on the other
hand supported the judgment of the High Court.
D
5. It is to be noted that Krishnaji (PW 1), Prakash (PW-5)
and Swaroopchand (PW9) had stated about the assaults made.
Though their evidence was attempted to be shown as tainted
because of their apparent relationship with the deceased we
find no substance in such plea. Further, all the three witnesses
E
did not speak about the assaults on the deceased by the
accused. PW-5 did not witness the assault on the deceased
,
as well as PW-1's evidence is relevant so far as assault on
himself is concerned. PW-9's evidence is of considerable
j importance. According to him while he was returning to his
... F
house he saw quarrel and the manner of assault by the
appellant.
6. Fcir bringing in operation Exception 4 to 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 G
sudden quarrel without the offender having taken undue
advantage and not having acted in a cruel or unusual manner.
7. The Fourth Exception of Section 300, IPC covers acts
done in a sudden fight. The said exception deals with a case
H
180 SUPREME COURT REPORTS [2009] 6 S.C.R.
A 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
B 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
c 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,
0
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
E 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
F 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
G 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
H altercation in the beginning. A fight is a combat between two
SABAN BANDU PATIL v. STATE OF MAHARASHTRA 181
(DR. ARIJIT PASAYAT, J.]
and more persons whether with or without weapons. It is not A
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 B
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 c
Nayak v. State of Gujrat (2003 (5) Supreme 223], Parkash
Chand v. State of H.P. (2004 (11) SCC 381), Byvarapu Raju
v. Stq.te of A.P. and Anr. (2007 (11) SCC 218) and Hawa Singh
and Anr. v. State of Haryana (SLP (Crl.) No.1515/2008
disposed of on 15.1.2009).
D
8. Considering the background facts it would be
appropriate to convict the appellant for offence punishable
under Section 304 Part I IPC. Custodial sentence of 10 years
would meet the ends of justice.
E
9. The appeal is allowed to the aforesaid extent.
K.K.T. Appeal partly allowed.
)
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