REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1312  OF 2007

Baban Bandu Patil     ..Appellant

Versus

State of Maharashtra  ..Respondent

J U D G M E N T

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

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 three accused persons were found guilty of the

aforesaid 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 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 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 Bandu,

caught hold of it and brought it back to his thrashing floor. At that time his

uncle  Bandu,  Accused  No.  1  Baban  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 along with the

calf.

After  some time,  his  uncle  Bandu  and Accused  no.2  Navnath  and

Accused  no.1  Baban  came to  their  thrashing  floor  and  hurled  abuses  at

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them. A-1 assaulted his  father with an axe. The stroke was given on the

head of Vithoba.  His uncle Bandu assaulted Krishnaji and his father with a

stick. Accused No. 2 Navnath also assaulted him and his father with a stick.

The assailants after 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 Bhandane - 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) 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,  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.  

On 06.07.2001 PSI Hiralal  (PW 11) was on duty at  Dhule Taluka

Police station. Krushnaji's report was registered by 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

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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,  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 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 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 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

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

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witness  and Police Officers  were led by Accused No. 4 and the weapon

alleged  to  have  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 instance of accused No.2 from his house.  

According  to  API  Deepak  (PW 12)  Accused  No.1  Baban  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 instance of  Accused no.  1, said axe was

discovered by API Deepak (PW 12). This panchanama is at Exhibit 83. This

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 (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 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

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caused  the  examination  of  accused  and  collected  blood  samples.  He,

thereafter handed over investigation to API Satish Jadhav.

API Satish (PW 13) recorded statements of two witnesses. He arrested

Accused No. 8 Kamlabai on 03.08.2001.

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

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  primarily  rested  on  the  ocular

evidence of PWs 1, 5 and 9. Placing reliance on their evidence the trial

Court found the 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  appellant  that  a  case  relatable  to

Section 302 IPC is not made out as single blow was given.  

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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 blow was given.

4. Learned counsel for the respondent-State on the other hand supported

the judgment of the High Court.  

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 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 importance.  According to him while he was

returning  to  his  house  he  saw quarrel  and  the  manner  of  assault  by the

appellant.  

6. For 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  sudden  quarrel  without  the  offender

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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  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

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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 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

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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’. These 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  Hawa Singh and Anr. v.  State of Haryana (SLP

(Crl.) No.1515/2008 disposed of on 15.1.2009).  

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.  

9. The appeal is allowed to the aforesaid extent.         

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (LOKESHWAR SINGH PANTA)

………………………………….J.

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(P. SATHASIVAM) New Delhi, April 15, 2009

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