RAVINDRA SHALIK NAIK AND ORS.versusST ATE OF MAHARASHTRA

                         [2009) 1 S.C.R. 1080


A              RAVINDRA SHALIK NAIK AND ORS.
                                   v.
                   STATE OF MAHARASHTRA
              (Criminal Appeal No. 245-246 of 2009)

                         FEBRUARY 9, 2009
B
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]

        PENAL CODE, 1860:
c
        s. 300, Exception 4 and ss. 302134 and 324 - Sudden
  fight - Accused inflicting injuries on victims with axe, knife and
  'gupti' - Resulting in death of one of the victims - Conviction
  by trial court u/s 302134 and s.324 - Upheld by High Court-
  HELD: Conviction altered from s.302134 to s. 304(part I) -
D
  Sentence of 10 years rigorous imprisonment imposed.

       The appellants (A-1 to A-3) were prosecuted for
  commission of offence punishable uls 302134 IPC. The
  prosecution case was that on a trivial issue, an altercation
E took place between PW-3, the husband of PW-1, and A-
  2. A-1 and A-3 also joined A-2. 'K' the father-in-law of PW-
  1 tried to intervene and pacify all of them. A-1 to A-3 went
  inside their house, which was close by, and returned with
  axe, knife and 'gupti'. All the three inflicted injuries on the
F head and abdomen of 'K'. A-1 and A-2 also inflicted
  injuries on PW-3. 'K' was taken to the hospital where he
  was declared dead. The trial court convicted all the                 ..
  accused and sentenced them to imprisonment for life ul
  s 302134 IPC. A-1 was also convicted and sentenced uls
G 324 IPC. The accused having remained unsuccessful
  before the High Court, filed the instant appeals.

        Allowing the appeals in part, the Court                        -
                                                                       ~
        HELD:1. So far as the reliability of the evidence of
H                            1080
                  RAVINDRA SHALIK NAIK AND ORS. v. STATE OF          1081
                               MAHARASHTRA

               PWs 1 and 3 is concerned their evidence is clear and         A
               cogent; and though they were subjected to incisive cross
               examination, nothing material could be elicited to discard
               their evidence. (Para 3] (1083-G]

                    2. As regards appellants' plea that the case is B
               covered under Exception 4 to s.300 IPC, for bringing in
               operation of the Exception, it has to be established that
 .. t          the act was committed without premeditation, in a
               sudden fight 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
                                                                           c
               manner. 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. Considering the
               background facts, the appropriate conviction would be D
    -"         under Section 304 (Part-I) IPC. The custodial sentence of
               10 years would meet the ends of justice. [Para 6 and 7]
               [1084-B; 1085-G-B-C]

                    Dhirajbhai Gorakhbhai Nayak v. State of Gujarat 2003 E
           .   (5) Supreme 223; Parka sh Chand v. State of H.P. 2004 (11) .
               SCC 381; Byvarapu Raju v. State of A.P. and Anr. 2007 (11)
               SCC 218 and Buddu Khan v. State of Uttarakhand (2009) 1
               SCR 178, referred to.
       ~
                                                                            F

-                                 Case Law Reference:
                    2003 (5) Supreme 223
                    2004 (11) sec 381
                                             referred to
                                             referred to
                                                                para 6
                                                                para 6
                    2001 (11) sec 218        referred to        para 6      G
                    (2009) 1 SCR 178         referred to        para 6
....:Ii\
                   CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
               No. 245-246 of 2009.
                                                                            H
    1082       SUPREME COURT REPORTS              [2009] 1 S.C.R.


A        From the final Judgment and Order dated 28.3.2007 of the
    High Court of Judicature at Bombay, Nagpur Bench, Nagpur
    in Crl. Appeal Nos. 193 and 251 of 2002.

       C.N. Sree Kumar, P.R. Nayak and Dushyant Parashar for
B the Appellants.

        Ravindra Keshavrao Adsure for the Respondent.

        The Judgment of the Court was delivered by                  t    •


        DR. ARIJIT PASAYAT, J. 1. Leave granted.
c
       2. Challenge in these appeals is to the common judgment
  of a Division Bench of the Bombay High Court, Nagpur Bench,
  dismissing the appeals filed by the present appellants. The
  appellants were found guilty of offence punishable under
D Sections 302 read with 34 of the Indian Penal Code, 1860 (in
  short the 'IPC'). The appellant Ravindra was also convicted for
  offence punishable under Section 324 IPC. Appellants
  Ravindra, Naresh and Shalikrao are hereinafter referred to as
  A-1, A-2 and A-3. The learned Adhoc Additional Sessions
E Judge, Yuvatmal had found the appellants guilty as aforenoted.

        3. Background facts in a nutshell are as follows:

       Appellant Shalik is father of appellants Ravindra and
  Naresh. On 13.11.1999, at about 7 p. m. appellant Naresh was
F going to his house and was carrying bundle of cotton/grass. The
  road to his house was adjacent to the house of complainant
  Vandana (PW1). On the way, the cotton bundle hit the roof of
  the complainant's house and, therefore, husband of the
                                                                         -
  complainant, Dewanand (PW 3) accosted appellant Naresh
G and told him that he should have been more careful while
  carrying the bundle of cotton and ought to have seen that no
  damage was done to the roof of the house of complainant.
  Quarrel ensued between appellant Naresh and Dewanand
  (PW-3) and there was exchange of words between them.
                                                                    "'   -
H Appellants Shalik and Ravindra also came to the spot of
               RAVINDRA SHALIK NAIK AND ORS. v. STATE OF                 1083
                  MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

    ~       incident and started quarrelling with the husband of the             A
           complainant- Dewanand (PW3). The father-in-law of the
           complainant, Kisan Gedam (hereinafter referred to as
           'deceased') intervened to pacify the quarrel between appellants
           and his son Dewanand. Appellants Shalik, Ravindra and
           Naresh went inside their house, which was close to the spot of        B
           incident and all of them returned to the spot armed with axe,
           knife and gupti. All the three appellants inflicted injuries on the
... 1'
           head and abdomen of deceased Kisan by means of those
           weapons. Appellants Ravindra and Naresh inflicted injuries on
           the hand of husband of complainant-Dewanand (PW3) with                c
           those weapons with intention to cause his death. Deceased
           Kisan was taken to the Hospital at Ner where he was declared
           dead.

                 After completion of investigation charge sheet was filed
    _,     and since the accused persons pleaded innocence trial was             D
           held.

               Placing reliance on the evidence of complainant Vandana
           (PW-1) and Dewan and (PW-3) the trial Court held the accused
           persons guilty as aforenoted.                                         E
                In appeal, the primary stand was that PWs 1 and 3 should
           not have been relied upon and in any event the provisions of
           Section 302 IPC are not attracted to the facts of the case. The
     /,,
           High Court did not find any substance in the plea and upheld
           the conviction and sentence as afore noted.                           F
)


                The stands taken before the High Court were re-iterated
           in the present appeals.

                So far as the reliability of the evidence of PWs 1 and 3 G
           are concerned their evidence is clear and cogent and though
- Ji\      they were subjected to incisive cross examination, nothing
           material could be elicited to discard their evidence.
                4. The main plank of the appellants' arguments relates to
           applicability of section 302 IPC. It has been contended that there    H
    1084         SUPREME COURT REPORTS               [2009] 1 S.C.R.


A is no pre-meditation involved and in course of sudden quarrel          '1'
  the incident took place.

       5. For bringing in operation of 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
8
  sudden quarrel without the offender having taken undue
  advantage and not having acted in a cruel or unusual manner.

        6. The Fourth Exception of Section 300, IPC covers acts
  done in a sudden fight. The said exception deals with a case
C 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 !leprivation of self-control, in case of Exception 4, there is
D 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
E 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
F 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
G 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           ,4 -
  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
H
                      RAVINDRA SHALIK NAIK AND ORS. v. STATE OF             1085
                         MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
     .."1.      invoked if death is caused (a) without premeditation, (b) in a A
                sudden fight; (c) without the offender's having taken undue
ii
                advantage or acting 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 B
                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 c
               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 D
               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
                                                                                   E
               aspects have been highlighted in Dhirajbhai Gorakhbhai
               Nayak v. State of Gujrat (2003 (5) Supreme 223], Parkash
               Chand v. State of H.P. (2004 (11) SCC 381), Byvarapu Raju
               v. State of A.P. and Anr. (2007 (11) SCC 218) and Buddu Khan
               v. State of Uttarakhand (SLP (Crl.) No. 6109/08 disposed of

-              on 12.1.2009)


                    7. Considering the background facts in our considered
                                                                                   F



               opinion the appropriate conviction would be under Section 304
               Part I IPC. The custodial sentence of 10 years would meet the       G
               ends of justice.
         i.,
                      8. The appeals are allowed to the aforesaid extent.
               R.P.                                    Appeals partly allowed.
                                                                                   H