http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (crl.)  12 of 2008

PETITIONER: Ramesh Krishna Madhusudan Nayar

RESPONDENT: State of Maharashtra     

DATE OF JUDGMENT: 07/01/2008

BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.4630 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.    Challenge in this appeal is to the judgment of Bombay  High Court, Aurangabad Bench, dismissing the appeal of the  appellant who faced trial for alleged commission of offence  punishable under Section 302 of the Indian Penal Code, 1860  (in short \021IPC\022)  and was sentenced to imprisonment for life by  learned Additional Sessions Judge, Ahmednagar.  

3.      Background facts in a nutshell are as follows:

       The complainant Sajay Vithal was serving as a Waiter in  Sanjog Hotel for 2-1/2 months prior to the incident.  Pradip  Panjabi is the owner of the said hotel.  Business in the hotel is  conducted from 5 p.m. to 11 p.m.  After closure of the hotel,  complainant Sanjay alongwith 5 workers of the hotel used to  reside in a staff room.  Hotel was closed on 3.11.1999 at 11.30  p.m.  Pradip Panjabi and other staff members went out at  about 1 a.m. Thereafter on 4.11.1999 around 1.30 a.m. in the  night, altercations took place between Ramesh Nayar and  Anna Devraj (hereinafter referred to as the \021deceased\022) on the  point of switching off the lights. Both used to reside in the staff  room.  At that time, complainant, Kundlik Chavhan and  Chhotu intervened.  Thereafter complainant and Anna Devraj  slept in the staff room. At about 8.30 a.m. complainant heard  loud noise relating to a quarrel and got up.  He saw the  accused and the deceased quarrelling and accused inflicting  two blows by a wooden log on the head of Anna Devraj.   Ramesh Nayar threatened the complainant that if he disclosed  anything to anybody, he will teach him a lesson. Hence  complainant went out of the room.  He disclosed the incident  to the persons in the hotel working as gardeners in the  morning.  At that time, Anna Devraj was not speaking  anything. He was lying unconscious and moaning. Thereafter  owner of the hotel was informed on phone.  He came and the   deceased was shifted to Civil Hospital for treatment.  His right  ear was bleeding.  Thereafter, the complainant and hotel  owner went to Tophkhana Police Station and reported the  matter to police as per Exh.26.  A.S.I. Puri registered the  offence as Crime No.227/99 under Sections 307, 506 of IPC  and handed over investigation to PW.7. P.S.I. Jyoti Madhav  Karandikar.  After completion of investigation, charge sheet  was placed and accused-appellant faced trial as he denied the  occurrence and pleaded false implication.  The trial Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

placed reliance on the evidence of Sanjay Diwate (PW-5).  It is  to be noted that certain other persons i.e. Dhirendera  Suryavanshi (PW-2), Ashok Palve (PW-3) and Datta Pingale  (PW-6) were claimed to be eye-witnesses, but they made  departure from the statements given during investigation.  The  trial Court found the evidence of PW-5 to be credible and  cogent and recorded his conviction and imposed the sentence  of imprisonment for life.

4.      The conviction and sentence were challenged before the  High Court, which as noted above, dismissed the appeal.

5.      In support of the appeal, leaned counsel for the appellant  submitted that the conviction could not have been recorded  solely on the testimony of one alleged eye-witness PW-5.   Alternatively, it is submitted that Section 302 IPC has no  application to the facts of the case in view of the factual  scenario highlighted. According to him in course of a sudden  quarrel the incident happened.  In other words, according to  him Exception 4 to Section 300 IPC applies.   

6.      Learned counsel for the respondent-State on the other  hand supported the judgment of conviction and sentence.

7.      Coming to the question whether on the basis of a solitary  evidence conviction can be maintained, a bare reference to  Section 134 of the Evidence Act, 1872 (in short \023the Evidence  Act\024) would suffice. The provision clearly states that no  particular number of witnesses is required to establish the  case. Conviction can be based on the testimony of a single  witness if he is wholly reliable. Corroboration may be  necessary when he is only partially reliable. If the evidence is  unblemished and beyond all possible criticism and the court is  satisfied that the witness was speaking the truth then on his  evidence alone conviction can be maintained.  

8.      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 sudden quarrel without the offender having taken  undue advantage and not having acted in a cruel or unusual  manner.          9.      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\022s 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 \021sudden  fight\022 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

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\022s  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 \021fight\022  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 \021undue advantage\022 as used in the provision means  \021unfair advantage\022.     10.     The aforesaid aspects have been highlighted in Sridhar  Bhuyan v. State of Orissa (JT 2004 (6) SC 299), Prakash  Chand v. State of H.P. (JT 2004 (6) SC 302), Sachchey Lal  Tiwari v. State of Uttar Pradesh (JT 2004 (8) SC 534), Sandhya  Jadhav v. State of Maharashtra [2006(4) SCC 653] and  Lachman Singh v. State of Haryana [2006 (10) SCC 524].       11.     Considering the factual background the inevitable  conclusion is that the appropriate conviction would be under  Section 304 Part I, IPC and not Section 302 IPC.  Custodial  sentence of 10 years would meet the ends of justice.   

12.     The appeal is allowed to the aforesaid extent.