Holding

The offence is murder under Section 300 IPC; Exception 4 does not apply.

Summary

The appellant and his co‑accused, members of a joint family, attacked the deceased and a complainant while they were standing on their own plot watching the planting of an almond tree. The victims retreated, fell into a gutter and were assaulted with a knife, pick‑axe and other weapons; the deceased sustained multiple fatal injuries and died. The trial court convicted the appellant under Section 302 IPC and the High Court affirmed. On appeal, the Supreme Court examined whether the killing fell within Exception 4 to Section 300 IPC, which would reduce murder to culpable homicide not amounting to murder. The Court held that the incident was not a sudden fight, involved pre‑meditation, undue advantage and multiple intentional injuries sufficient in the ordinary course of nature to cause death, and there was no provocation. Consequently, Exception 4 did not apply and the conviction for murder under Section 302 IPC was upheld. The appeal was dismissed.

Issues considered

Whether the killing of the deceased by the appellant falls within Exception 4 to Section 300 of the Indian Penal Code.
Whether the facts satisfy the ingredients of a sudden fight, absence of pre‑meditation, and lack of undue advantage or cruelty required for Exception 4.
Whether the injuries inflicted constitute murder under Section 300 IPC.

Legislation cited

Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 299, s. 300, s. 302, s. 323, s. 324

Subjects

murderSection 300 IPCException 4culpable homicidejoint family disputeproperty disputeintentional injuryprovocation

Judgment

A SUBHASHSHAMRAOPACHUNDE
v.
STATE OF MAHARASHTRA
....
DECEMBER 8, 2005 r
l

B [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

Penal Code, 1860:
r
Section 300 Exception 4-Applicability of-Murder--Accused persons
c and the deceased were member of a joint family and the relationship between
them were straine~n the fateful day, an almond tree was being planted
in their side of open plot by the accused persons-The complainant and the
deceased were standing in third portion of the open plot to which the
accused persons asked them as to what they had been seeing-They replied
D that they were standing on their own plot whereupon the accused persons
rushed towards them with weapons-Seeing the accused persons advancing
towards them the complainant and the deceased started retreating and fell
into a gutter-Accused persons inflicted knife blows on the deceased, one on
the chest and the other on the side near his armpit and on his stomach by
using pickaxe-The incident was witnessed by the friends ofthe complainant-
~
E Trial court convicted the accused under S. 302-High Court affirmed the
conviction-Correctness of-Held: By watching plantation of an almond tree
the complainants and the deceased could not be said to have caused any
annoyance or provocation to the accused-Moreover, the manner in which
the deceased and the complainant were assaulted showed that the accused
.__
took undue advantage of the situation as they fell into a gutter and were
F
helpless-The blows on the body of the deceased evidently were infected with
an intention to cause bodily injuries to him and such injuries were sufficient
in the ordinary course of nature to cause death-Hence, the offence would
come within the purview of culpable homicide amounting to murder as
envisaged under S. 300 /PC-Under the circumstances, Exception 4 to S. 300
G /PC not attracted-Conviction upheld
.,,
The accused persons and the deceased were members of a family and
the relationship between them were strained due to inequitable division of the " .~"
"\
I
joint family properties. Their residential houses were side by side. On the
~

~!:-
H 594
SUBHASH SHAMRAO PACHUNDE v. STATE OF MAHARASHTRA 595
day of occurrence an almond tree was being plated in their side of open plot A
by the accused persons. The complainant and the deceased were standing in
their portion of the open plot to which accused Nos. 2 and 3 asked them as to
what they had been watching. They replied that they were standing on their
own plot belonging to their father whereupon the accused persons rushed
towards them with weapons. Seeing the accused per"ons advancing towards
them the complainant and the deceased started retreating and fell into a gutter. B
Accused 'S' and 'T' allegedly assaulted the complainant whereas the deceased
was assaulted by the appellant and accused 'G' with the weapons in their hands.
The appellant was said to have inflicted knife blows on the deceased, one on
the chest below the left nipple and the other on the side near the armpit
whereas 'G' was said to gave inflicted blows on his stomach by using a pickaxe. C
The said incident was witnessed by PWs 9 and 10 who were friends of the
complainant.

The appellant was found guilt under Section 302 of the Penal Code,
1860. The High Court affirmed the conviction. Hence the appeal.
D
The following question arose before the Court :-

Whether the offence of causing the death of the deceased at the hands
of the appellant would come within the purview of the fourth Exception to

-
Section 300 IPC or not?
E
Dismissing the appeal, the Court

HELD: 1. The genesis of the occurrence is not in dispute. The
complainant and the deceased were watching plantation of an almond tree in
their premises by the accused from their own land. They cannot be said to
have caused any annoyance to them. It is the appellant and his brother who F
started exchange of words by asking as to what they had been seeing. The
answer by the complainant to the effect that they had been standing on their
own land cannot be said to be a cause for the accused being greatly provoked
so as to cause bodily injuries on the deceased and the complainant. The
appellant and his companions who were armed with weapons assaulted the G
deceased and the complainant who were unarmed and must have been taken
by surprise. Conceivably appellant Nos. 1, 3 and 4 were carrying iron rod,
pick-axe and shovel respectively for the purpose of the plantation of the tree,
but the knife, which was the weapon of offence and was being carried by the
appellant, was not required for the said purpose. Why he was carrying such
a big knife remains unexplained. [600-H; 601-A, B, q H
596 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A 2. Accused Nos. 1 and 4 as well as the appellant advanced towards the
deceased and the complainant as a result whereof they went neat the gutter
which was just by the side of the land of the accused. It may or may not be that
both the deceased and the complainant were tripped into the gutter by the
mischievous acts on the part of the appellant and his brother, but the fact
B remains th'\t they fell therein. The trial court found that while retreating~
they fell into the gutter themselves. The complainant and the deceased were
assaulted in the gutter itself. They were not carrying any weapons whereas
the accused were carrying deadly weapons. The effect of assault with deadly
weapons on the vital part of the body of the deceased by the appellant must be
considered in the aforementioned factual background. The trial court and
C consequently the High Court arrived at a finding of fact that the complainant
and the deceased fell into the gutter. [601-D, E, F]

3.1. The injury inflicted by the appellant went right up to the right lung.
The appellant did not restrain himself afler inflicting one injury. He inflicted
other and further injury also. The injuries admittedly were more than one.
I) 1603-F)

3.2. It is, thus, not a case where only one injury was inflicted by the
accused on sudden provocation. 1603-G)

4. In this case Exception 2 to Section 300 IPC has no application as .the
E appellant cannot be said to have committed the offence whilst deprived with
the power of self-control by grave and sudden provocation; and that in the facts
and circumstances of the case the deceased and the complai_nant cannot be
said to have caused any provocation to the appellant. [604-G, HJ

5. The distinction between the offences of culpable homicide and murder .,.
F is the presence of special mens rea which consists of four mental attitudes in
the presence of any of which the lesser offence becomes greater. These
attitudes are stated in Section 300 IPC as distinguishing murder from
culpable homicide not amounting to murder. 1605-A)

6. The ingredients of Exception 4 to Section 300 IPC are (i) there must
Q be a sudden fight; (ii) there was no premeditation; (iii) the act was committed
in a heat of passion and (iv) the assailant had not taken any undue advantage
or acted in a cruel manner. [605-B)

7. In the event the said ingredients are present, the cause of quarrel
would not be material as to who offered the provocation or started assault.
H Indisputably, however, the occurrence must be sudden and not premeditated
SUBHASH SHAMRAO PACHUNDE v. STATE OF MAHARASHTRA 597
and the offender must have acted in a fit of anger. (605-q A
Rajendra Singh v. State of Bihar, (2000] 4 SCC 298, relied on.

8. Even if it be assumed that the responses to the questions put to the
deceased or the complainant caused provocation, the same evidently was
because of the preexisting malice and the bias which the appellant and against B
them. Moreover, the manner in which the deceased and the complainant were
assaulted, show that the assailants took undue advantage of the situation as
they fell into the gutter and were, thus, in a helpless condition. (606-B)

Prabhu v. State ofMP., [1991] Supp. 2 SCC 725 and Thangaiyav. State
ofT.N., (2005] 9 SCC 650, relied on. C
Virsa Singh v. State of Punjab, (1958) SeR 1495, referred to.

Khanjan Pal v. State of U.P., (1990] 4 sec 53 and Bhojappa
Hanumanthappa Choudannavar v. State of Karnataka, (2004) 2 sec eri.
1783, distinguished. D
8. In this case, there was no provocation from the side of the deceased.
He did not make even any casual remark which could provoke him nor the
parties entered in altercations which culminated in the incident. (607-E)

9. The reported blows on the body of the deceased evidently were done E
with an intention to cause bodily injuries to him and such injuries were
sufficient in the ordinary course of nature to cause death, the offence would
come within the purview of culpable homicide amounting to murder as
envisaged under Section 300 IPC. [608-B, q

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 541 of p
1999.

From the Judgment and Order dated 22.12.98 of the Bombay High Court
in Crl.A. No. 761of1989.

V.A. Mohta, J.V. Patil, Manish Pitale, Nilakanta Nayak and Chander G
Shekhar Ashri for the Appellant.

Ravindra Keshavrao Adsure for the Respondent.

The Judgment of the Court was delivered by
H
598 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A S.B. SINHA, J. The sole appellant herein was prosecuted for commission
of offences with five others under Sections 147, 148, 302 read with Section
149 323, 324 and 149 of the Indian Penal Code.

Shamrao, father of the Appellant, was accused no. l. The accused nos.
3 and 4 Ganpati and Tanaji were his brothers whereas accused no. 5 Vijay
B Dattatray Salunke was his nephew. The accused no. 6 Vijay Gangaram Patel
was a close family friend.

By reason of its judgment dated 08.11.1989 the learned trial Judge while
convicting the Appellant under Section 302 of the lPC and sentencing him
C to undergo imprisonment for life and pay a fine of Rs. I 0,000/- or in default
thereof to undergo rigorous imprisonment for three years, and the accused
nos. 1and4 under Section 324 of the IPC; acquitted the others of all charges.
The High Court in the appeals preferred by the appellant therein affirmed the
judgment passed by the learned trial Court but modified the sentence in
respect of accused nos. l and 4 to the period already undergone.
D
This appeal was admitted on a limited question, i.e., as regard nature of
offence.

Before adverting to the contentions raised in the appeal we may notice
the fact of the matter in brief. The parties were members of a joint family.
E Shamrao, accused no. 1 and Prahlad were two brothers. Whereas accused
Nos. 2 to 5 belong to the branch of Shamrao; the deceased and the complainant
were sons of Prahlad. A partition took place between the said brothers in
1984; whereby the northern portion of the open plot by the side of Haripur
Road was allotted to the share of Prahlad and the southern one to Shamrao.
The northern and southern portion of the plot is divided by a 15 ft. wide road.
F Indisputably the relationships between the parties were strained. .

All accused except accused no. 6 and the deceased as also the
complainant, sons of Prahlad, are thus closely related. It is not in dispute that
the complainant and his brothers had been bearing grudge against Shamrao
G and his sons inter a/ia on the ground of inequitable division of the joint
family properties. Their residential houses of both parties were side by side.

On the day of occurrence an almond tree was being planted in their side
of open plot by the accused. Rajendra, PW8 and his brother Nandkumar,
deceased were standing in their portion of the open plot allegedly waiting for
H their friends for going to participate in a game of Kahaddi to which accused •
SUBHASH SHAMRAO PACHUNDE v. STATE OF MAHARASHTRA [SINHA,J.] 599

nos. 2 and 3 asked them as to what they had been watching. They replied A
that they were standing on their own plot belonging to their father. The
accused on that rushed towards them with weapons accused no;.. l had an
iron-rod, accused no. 2 had a knife, accused no. 3 was carrying a Pick-axe and
accused no. 4 a shovel in their hand. Seeing accused persons advancing
towards them the complainant and the deceased started retreading southwards, B
i.e., towards plot of the accused. They fell in a gutter. Shamrao and Tanaji
allegedly assaulted Rajendra whereas Nandkumar was assaulted by the
appellant and Ganpati, accused no. 4 with the weapons in their hands. Rajendra
tried to evade the assault on him by Shamrao with iron-rod as a result whereof
he received injury on his back. A spade blow was given by Tanaji on his right
I
foot. The appellant is said to have inflicted knife blows on Nandkumar, one C
on the chest below the left nipple and the other on the side near the arm-pit;
whereas Ganpati is said to have inflicted blow on his stomach on the left side
above! hip bone by using pick-axe. The said incident is said to have been
witnessed by Raju, P.W. 9 and Shrirang Jadhav, P.W. 10 who are friends of
Rajendra and who were coming back from a temple. The accused thereafter D
ran away.

Whereas the deceased was shifted to hospital in a Rickshaw, the
complainant went to the Police Station alone in another Rickshaw It is not in
dispute that Baburao Thorat P. W. 16, the P.S.O. received a phone cail from

- Dr. Aphale informing that Nandkumar had been admitted to the hospital by
his brother Arvind.

The first information report lodged by Rajendra was recorded at 8.15
E

p.m. by Shri Thorat against the accused for commission of offences under
Section 307 read with Section 34 of the I.P.C. Shri Thorat again received a call
soon thereafter from Dr. Aphale informing him that Nandkumar had died in F
the meanwhile.

The learned Sessions Judge did not believe a part of the prosecution
story, viz., that the complainant and the deceased fell into the gutter because
of the mischievous acts of tripping of their legs by the appellant and Ganpati.
He was also of the opinion that the accused nos. 5 and 6 had no role to play G
in the incident. He furthermore held that the incident having taken place at
the spur of moment, no case of formation of common object or common
intention had been made out and consequently held that they were guilty of
commission of offences having regard to their individual acts.

H
600 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A Mr. V.A. Mohta, learned senior counsel appearing for the appellant
despite limited leave having been granted sought to argue the appeal on merit
which was not permitted. The learned counsel took us through the judgments
of both the courts below as also the evidence of P. W. 8 Rajendra, P.W. 9 Raju
and P.W. IO Shrirrang. It was contended that the findings of the Courts below
holding the appellant guilty of commission of an offence under Section 302
...
B I.P.C. must be considered by us in the context that the prosecution story was
partly disbelieved. It was urged that admittedly the incident occurred on the
plot owned by his father and in that view of the· matter it cannot be said to
be a case where the appellant had any intention or motive to cause the death
of the deceased and the accused nos. I and 4 to cause injuries on P. W. 8.
\
c Learned Counsel further urged that Exhibit 31, the knife, having not been
found to be blood-stained, the purported recovery thereof was irrelevant. It
was further submitted that as both the Courts below have concurrently found
that the· incident occurred at the spur of the moment without there being
premeditation and meeting of mind, the appellant at best can bci said to have
committed an offence under Part II of Sec. 304 of the Indian Penal Code. Our
D attention was also drawn to the fact that weapons held by all the accused
were available at the spot having been carried by them for planting the
almond tree. Mr. Mohta further submitted that in a case of this nature the
fourth Exception appended to Section 300 of the l.P.C. would be attracted.
Reliance in this behalf has been placed in the case of Khanjan Pal v. State
E of U.P., [ 1990] 4 SCC 53 and Bhojappa Hanumanthappa Choudannavar and
Ors. v. State of Karnataka, [2004] 2 SCC(Cri.) 1783.

Mr. Adsure, learned counsel appearing on behalf of the State, on the
other hand, submitted that the prosecution case has not only been supported
by the complainant but also by the independent eyewitnesses and having
F regard to the fact that the appellant herein has inflicted two knife injuries on
the vital part of the body of the deceased, it is .not a case where fourth
Exception to Section 300 of the I.P.C. shall apply.

Having regard to. the fact that limited leave was granted in the matter,
namely, ·on the question of nature of offence, we are only called upon to
G detennine the question as to whether the offence of causing the death of
Nandkumar at the hands of the Appellant would come within the purview of
the fourth Exception to Section 300 1.P.C. or not.

The genesis of the occurrence is not in dispute. The complainant and
the deceased were watching plantation of an almond tree in their premises by
H
'-
SUBHASH SHAMRAO PACHUNDE v. STATE OF MAHARASHTRA [SINHA, J.] 601
the accused from their own land. They cannot be said to have caused any A
annoyance to them. It is the appellant and his brother who started exchange
of words by asking as to what they had been seeing. The answer by the
complainant to the effect that they had been standing on their own land
cannot be said to be a cause for the accused being greatly provoked so as
to cause bodily injuries on the deceased and the complainant. The appellant B,
and his companions who were armed with weapons assaulted the deceased
and the complainant who were unanned and must have been taken by surprise.
Conceivably appellant nos. I, 3 and 4 were carrying iron rod, pick-axe and
shovel respectively for the purpose of the plantation of the tree, but the knife,
which was the weapon of offence and was being carried by the appellant
herein, was not required for the said purpose. Why he was carrying such a C
big knife remains unexplained.

Accused no. I and 4 as well as the. appellant advanced towards the
deceased and the complainant as a result whereof they went near the gutter
which was just by the side of the !and of the accused. It may or may not be
that both the deceased and the complainant were tripped into the gutter by D
the mischievous acts on the part of the appellant and his brother Ganpati, but
the fact remains that they fell therein. The learned trial Judge in his judgment
found that while retreading, they fell into the gutter themselves. The
complainant and the deceased were assaulted in the gutter itself. They were
not carrying any weapon whereas the accused were carrying deadly weapons. E
The effect of assault with deadly weapons on the vital part of the body of
the deceased by the appellant must be considered in the aforementioned
factual background. The learned trial judge and consequently the High Court
arrived at a finding of fact that the complainant and the deceased fell into the
gutter. The garments put on by the deceased and the complainant as also the
appellant were seized. The learned trial Judge held that: F
" .. .It is also not in dispute that the none of the accused has sustained
any injury and, therefore, the fact that arrest panchanama is not
prepared, does not show that there is manipulation on the part of the
I.O. clothes, of these accused are attached under panchanama Ex 44.
This panchanama is duly proved by P.W. 6 Chandrakant Babar. G
Panchanama shows that Dhoti and Shirt of Shamrao were stained with
blood. There were blood stains on the waist-band and parit of accused
No. 2 Subhash, and the Bandi and under-pant of accused No. 3
Ganpati were soiled with silt. There were blood stains on the pant of
Tanaji. l have seen these garments at the time of arguments. lt is H
)

602 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A found that silt was on the sleeve of shirt near the cuff, of accused No.
2 Subhash. These stains are not mentioned in the panchanama. There
was silt on all the garments of accused No. 3 Ganapati. There were
mud stains on the pant, art. No. 22, of accused No. 4 Tanaji. It is
pertinent to note here that according to accused No. 3 he had also
fallen in the gutter and, therefore, the fact that all his clothes are
B covered with silt, is explained. These facts establish beyond doubt
credibility of testimony of complainant and eye-witnesses, P. W. 9 Raju
Bavadekar and P.W. 10 Shrirang@ Ranga Jadhav that the complainant
and his brother Nandkumar had fallen in the gutter and they were
assaulted in the gutter."
c The deceased and the complainant thus having fallen into the gutter
were not in a position to defend themselves.

At this juncture, we may notice the ante mortem injuries found on the
body of the deceased Nandkumar. The doctor who examined the deceased
D stated:

"When I examined the patient, I found that the patient was
conscious. His general condition was poor. There was severe pallor.
Pulse 110 per minute. Respiratory rate 40 per minute. B.P. 80 to 60 Hg.
Patient gave history of assault at 7 p.m. with knife."
E
The post mortem was also conducted by him. The doctor further opined:

" ... At the time of post-mortem, I observed that the clothes of the
deceased were wet with dirty water. I have described external injuries
in column No. 17. I have also observed at the time of post-mortem that
F there was mark of blood over chest, abdomen, legs hands mixed with
dirty water stains. These observations are mentioned in column No.
14 of post-mortem notes."

He further stated that :

" ... Contents of the post-mortem notes are correct. Post mortem
G
notes are marked as Exh. 67. All these injuries were ante-mortem.
Injury No. 1 in col. No. 17 corresporids to finding fo .col. No. 29(e) i.e.
injury to left lung. Injury No. 4 is surgical. Injury No. 2 corresponds
to internal injury described in col. No. 21 showing that large intestine
was punctured. The blood seen in the peritoneam might on account
H of injury No.3 described in column No. 17. Standing of pleura with
SUBHASH SHAMRAO PACHUNDE v. STATE OF MAHARASHTRA [SINHA, J.] 603
blood is on account injury No. I. lnj. Nos. I to 3 and 5 can be caused A
by hard and sharp weapon. Art. No. 31-knife shown to witness. Injury
No. 1, 2 and 5 can be caused by this knife. Injury No. 5 can be caused
while making efforts to ward off the blow. Pick-axe (Art. No. 5) shown
to witness. Injury No. 3 can be caused by pointed end of the pick-
axe."
B
In his opinion, the injury No. 1 by itself was sufficient in the ordinary
course of nature to cause death. Injury No. 2 and 3 can also cause death but
in that case the death will not be immediate. Those injuries however would
not be sufficient in the ordinary course of nature to cause death as there
could be chances of survival as well as of death. It was explained by him that C
in his injury report he opined that injury no. 2 was muscle deep; at that time
he did not probe the injury. In his cross-examination, the doctor further stated
that:

"The direction of injury No. 1 is medial upto the thylum of lung
(root of lung). Direction of injury no. 2 is downwards. Direction of D
injury no. 3 is medial. It is correct to say that would cause by pick-
axe (Article No. 5) will have lacerations on the edges of the wound.
I have not noted these lacerations while describing injury No.3. It is
correct to say that the weapon must enter upto intestine for 6 inches
for causing a puncture The depth of this injury no. 3 is about 6
inches. Now says, I cannot definitely say that inj. No. 3 can be caused E
by Article No. 5. Considering the fact that the weapons pierced the
body of 6 inches. It is a fact that I have described inj. No. 2 in M.L.C.
register as muscle deep. This is so because at that time I did not probe
the injury."

The injury no. l therefore went right upto the right of the lung. The F
appellant herein did not restrain himself after inflicting one injury. He inflicted
other and further injury also. The injuries, in view of the post mortem report,
admittedly were more than one.

It is, thus, not a case whtre only one injury was inflicted by the accused G
on sudden provocation.

Section 299 l.P.C. reads as under:

"299. Culpable homicide. Whoever causes death by doing an act
with the intention of causing death, or with the intention of causing
H
604 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A such bodily injury as is likely to cause death, or with the knowledge
that he is likely by such act to cause death, commits the offence of
culpable homicide"

Section 300 l.P.C. reads as under:

B "300. Murder. Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is done
with the intention of causing death, or-

Secondly,- If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the
C person to whom the hann is caused, or-

Thirdly ,- If it is done with the intention of causing bodily injury
to any person and the bodily injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death, or-

Fourthly,- If the person committing the act knows that it is so
D imminently dangerous that it must, in all probability, cause death or
such bodily injury as is likely to cause death, and commits such act
without any excuse for incurring the risk of causing death or such
injury as aforesaid."

E Exception 2 to the said Rule postulates that "when culpable homicide
is not murder if the offender, whilst deprived of the power of self-control by
grave and sudden provocation, causes the death of the persons who gave
the provocation or causes the death of any other person by mistake or
accident."

F Exception 4 to the said Rule reads thus:

"Exception 4. Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion upon
a sudden quarrel and without the offender having taken undue
advantage or acted in a cruel or unusual manner."
G
In this case Exception 2 has no application as the Appellant cannot be
said to have committed offence whilst deprived with the power of self-control
by grave and sudden provocation, as has been noticed hereinbefore, that in
the facts and circumstances of the case the deceased and the complainant
cannot be said to have caused any provocation to the Appellant.
H
SUBHASH SHAMRAO PACHUNDh STATE OF MAHARASHTRA [SINHA,J .] 605
The distinction between the offences of culpable homicide and murder A
is the presence of special mens rea which consists of four mental attitudes
in the presence of any of which the lesser offence becomes greater. These
attitudes are stated in Section 300 IPC as distinguishing murder from culpable
homicide not amounting to murder.

The ingredients of the said Exception 4 are (i) there must be a sudden B
fight; (ii) there was no pre-meditation; (iii) the act was committed in a heat
of passion and (iv) the assailant had not taken any undue advantage or acted
in a cruel manner.

In the event the said ingredients are present, the cause of quarrel would C
not be material as to who offered the provocation or started assault.
Indisputably, however, the occurrence must be sudden and not pre-meditated
and the offender must have acted in a fits of anger.

In Rajendra Singh & Ors. v. State of Bihar, [2000] 4 SCC 298 at p. 307
this Court held:
D
"So far as the third contention of Mr. Mishra is concerned, the
question for consideration would be as to whether the ingredients of
Exception 4 to Section 300 of the Indian Penal Code can be said to
have been satisfied. The necessary ingredients of Exception 4 to
Section 300 are: E
(a) a sudden fight;
(b) absence of premeditation;
(c) no undue advantage or cruelty.

but the occasion must be sudden and not as a cloak for pre-existing F
malice. It is only an unpremeditated assault committed in the heat of
passion upon a sudden quarrel which would come within Exception
4 and it is necessary that all the three ingredients must be found. From
the evidence on record it is established that while the prosecution
party was on their land it is the accused who protested and prevented G
them from continuing with ploughing but when they did not stop the
accused persons rushed to the nearby plot which is their land and got
weapons in their hands and assaulted the prosecution party ultimately
injuring several members of the prosecution party and causing the
deatll of one of tllem while they were fully unanned. In this view of
the matter on scrutinizing the evidence of the four eyewitnesses PWs H
606 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A 2, 4, 7 and 8 who have depicted the entire scenario it is not possible
for us to agree with the submission of Mr. Mishra, learned Senior
Counsel appearing for the appellants that the case is one where
Exception 4 to Section 300 would be applicable. We, therefore, reject
the said submission of the learned counsel."

B Even if it be assumed that responses to the questions put to the
deceased or the complainant caused provocation, the same evidently was
because of the pre-existing malice and the bias which the Appellant had
against them. Moreover, the manner in which the deceased and the complainant
were assaulted show that the assailants took undue advantage of the situation
C as they fell into the gutter and were, thus, in a helpless condition.

In Prabhu and Ors. v. State of M.P., [1991] Suppl. 2 SCC 725 a three
Judge Bench of this Court rejected a similar contention in a case where the
accused inflicted more than one injury stating :

" ... The e-vidence of PW 4, Dr. C.K. Dafal, however, shows that the
D deceased was belaboured mercilessly. There were innumerable
contusions on the entire body of the deceased from head to toe. The
wrist, humerus, etc. were fractured and the whole body was full of rod
marks. There were several contused lacerated wounds on the entire
face and the left eye was bleeding. 1.:he totality of the injuries caused
E to the victim clearly supports the finding of both the courts below
that the appellants went on belabouring_ the deceased till he died on
the spot.

In Thangaiya v. State ofT.N, [2005] 9 SCC 650, relying upon a celebrated
decision of this Court in Virsa Singh v. State of Punjab, [ 1958] SCR 1495, the
F Division Bench observed:

"17. These observations of Vivian Bose, J. have become locus classicus.
The test laid down by Virsa Singh case for the applicability of clause
"thirdly" is now ingrained in our legal system and has become part
of the rule of law. Under clause "thirdly" of Section 300 IPC, culpable
G homicide is murder, if both the following conditions are satisfied: i.e.
(a) that the act which causes death is done with the intention of
causing death or is done with the intention of causing a bodily injury;
and (b) that the injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death. It must be proved that there
was an intention to inflict that particular bodily injury which, in the
H
SUBHASH SHAMRAO PACHUNDE v. STATE OF MAHARASHTRA [SINHA, J.] 607

ordinary course of nature, was sufficient to cause death viz. that the A
injury found to be present was the injury that was intended to be
inflicted.

18. Thus, according to the rule laid down in Virsa Singh case even
if the intention of the accused was limited to the infliction of a bodily
injury sufficient to cause death in the ordinary course of nature, and B
did not extend to the intention of causing death, the offence would
be murder. Illustration (c) appended to Section 300 clearly brings out
this point."

Therein it was held that there is no fixed rule that whenever a single
blow is inflicted Section 302 would not be attracted. C
No hard and fast rule, however, can be laid down as different situations
may arise having regard to the factual matrix involved therein.

Khanjan Pal v. State of UP., [1990] 4 SCC 53 relied upon by Mr. Mohta
is distinguishable. In that case altercations between the deceased and the D
accused was admitted. A scuffle took place in course whereof the deceased
received injuries. Evidence brought on records clearly established that the
whole incident took place as a result of sudden development. The appellant
therein was found to have acted at the spur of the moment and without any
premeditation. E
In this case, there was no provocation from the side of the deceased.
He did not make even any causal remark which could provoke him nor the
parties entered in altercations which culminated in the incident.

In Bhojappa Hanumanthappa, (supra) whereupon again Mr. Mohta F
placed reliance the fact of the matter was entirely different as would appear
from the following:

"A commotion took place in front of the house of Bhimappa
(PWl) during the night of 10-9-1984. The appellant and his co-accused
were involved in assaulting Bhimappa and his brothers-in-law. While G
the brawl was in full swing PW l's daughter Renu Kavva, a twelve
year old little girl, rushed to the scene presumably to rescue her father
whom she would have thought to be in a dangerous situation. The
appellant herein then swished a wooden hammer he was then
possessed with, which hit on the head of Renu Kavva, which
unfortunately turned out to be fatal. Therefore, the High Court, on the H
608 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A appeal against acquittal, found that the appellant did not intend to
inflict the injury which caused her death. We are in agreement with
the finding of the High Court that the offence is only under Section
304 Part II IPC."

In the afore-mentioned situation, this Court opined that the appellant
B _therein had no ire against the little girl either before or during the occurrence.
It was an act done in a rash mood with no intention to cause even grievous
hurt to her.

The case at hand stands absolutely on a different footing. The reported
blows on the body of the deceased evidently were done with an intention to
C cause bodily injuries to him and such injuries were sufficient in the ordinary
course of nature to cause death, the offence would come within the purview
of culpable homicide amounting to murder as envisaged under Section 300 of
the 1.P.C.

D Having regard to the facts and circumstances of the present case and
for the reasons stated hereinbefore, we are of the opinion that it is not a fit
case where a different opinion from that of the trial court as also the High
Court can be arrived at. Both the courts, in our considered view had rightly
convicted the appellant herein for commission of an offence under Section
302 of the l.P.C. The appeal being devoid of any merit is dismissed.
E
v.s.s. Appeal dismissed.