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CASE NO.: Appeal (crl.)  368 of 2006

PETITIONER: Smt. Sandhya Jadhav

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 31/03/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.6361 of 2005)

ARIJIT PASAYAT, J.  

       Leave granted.

Appellant calls in question legality of the judgment  rendered by a Division Bench of the Bombay High Court  Nagpur Bench disposing of two appeals; one filed by the  appellant and the other by two co-accused person.  Challenge  was to the conviction recorded and sentence imposed by the  6th Additional Sessions Judge, Nagpur. Appellant was  convicted for offence punishable under Section 302 of the  Indian Penal Code, 1860 (in short the ’IPC’) and was sentenced  to suffer imprisonment for life and to pay a fine of Rs.1,000/-  with default stipulation.  Appellant was also convicted for  offence punishable under Section 325 read with Section 34  IPC along with the other co-accused  Kawadu and Arun and  all of them were sentenced to suffer RI for 5 years and to pay a  fine of Rs.300/- with default stipulation.  Co-accused persons  were convicted for commission of  offence punishable under  Section 323 read with Section 34 IPC and sentenced to suffer  RI of one year and to pay a fine of Rs.200/- with default  stipulation. Appeal filed by the appellant was dismissed.  Prosecution version which led to trial of the accused  persons in brief is as follows: Appellant and co-accused persons were residing as  tenants in the house of Govindrao Ghoradkar (PW-2).  On 6th  June, 1990 at about 8.00 a.m. Govindrao Ghoradkar (PW-2)  went to the accused persons for demanding house rent.  The  accused persons in collusion with one another and in  furtherance of their common intention assaulted Govindrao  Ghoradkar (PW-2) and when his nephew Anand Ghoradkar  (hereinafter referred to as the ’deceased’) intervened in the  matter to separate them, appellant Sandhya delivered a knife  blow on the back of the deceased Anand and committed his  murder. On the complaint lodged by Govindrao Ghoradkar  (PW-2) and Gajanan Ghoradkar, brother of deceased, police  registered two separate reports, i.e. (Exh.22) and report  (Exh.20) respectively.  Investigation was conducted and the  accused persons were charge-sheeted for having committed  offences punishable u/s 302 read with Section 34 of IPC and  u/s 324 read with Section 34 of IPC and so far as accused  nos. 2 and 3 are concerned, they were also charged for having  committed offence punishable u/s 323 read with Section 34 of  IPC.

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In reply to the charge, all the accused persons pleaded  not guilty and took a common plea that on the day of the  incident Govindrao Ghoradkar (PW-2) came along with 5-6  persons and beat them.  On conclusion of the trial, the trial  Court found the accused persons guilty of the charges,  convicted and sentenced them which were matter of challenge  in the two appeals before the High Court.   In the appeals primary stand was that the case was not  covered under Section 302 IPC so far as the appellant is  concerned.  The occurrence took place in the course of sudden  quarrel where the so-called eye-witness and the deceased were  the aggressors;  the right of private defence was available to  her and in any event the occurrence took place in case of  sudden quarrel and, therefore, Section 302 IPC have no  application.  It was also pointed out that there was no  intention to kill as a single blow was allegedly given and,  therefore, also Section 302 IPC had no application.  The High  Court did not accept the contentions and upheld the  conviction as recorded by the Trial Court.    Learned counsel for the appellant submitted that even if  the accusations of the prosecution are accepted in toto a case  under Section 302 IPC is not made out, in view of the  categorical findings recorded by the Trial Court and the High  Court that the assaults were made in course of a quarrel and  conviction should not have been done in terms of Section 302  IPC.  According to him Exception 4 to Section 300 IPC is  applicable.

In reply, learned counsel for the State submitted that  looking at the factual scenario as projected by the prosecution  witnesses, and the nature of the injury inflicted, the Trial  Court was justified in recording conviction under Section 302  IPC and the High Court has rightly dismissed the appeal.

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.

       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

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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 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’.       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), and Sachchey Lal  Tiwari v. State of Uttar Pradesh (JT 2004 (8) SC 534).   The residual plea is that only a single blow was given.   Though it cannot be laid down as a rule of universal  application that whenever death occurs on account of a single  blow, Section 302 IPC is ruled out, the fact situation has to be  considered in each case.   If the factual background is considered in the legal  position as set out above, the inevitable conclusion is that  Exception 4 to Section 300 IPC has full application. The  conviction is to be altered to Section 304 Part II IPC instead of  Section 302 IPC as done by the Trial Court and affirmed by the  High Court.  Custodial sentence of 7 years would meet the  ends of justice. Appeal is allowed to the aforesaid extent.