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CASE NO.: Appeal (crl.)  1428 of 2007

PETITIONER: Gopal

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 12/10/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  (Arising out of SLP (Crl.) No.6738 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment of the  Division Bench of the Bombay High Court, Aurangabad  Bench, upholding the conviction of the appellant for offences  punishable under Section 302 of the Indian Penal Code, 1860  (in short the \021IPC\022).

3.      Background facts in a nutshell are as follows:

    Paridharinath Vaidya (P.W.7), P. S. I. attached to  M.1.D.C. Police Station, Jalgaon, recorded the complaint of  Sumanbai (P.W. 1) on l5th June, 2002. On the basis of the  said complaint, an offence vide crime No.136 of 2002, under  Section 302 of Indian Penal Code, 1860 (in short \021IPC\022), was  registered. Inquest Panchanama came to be drawn in the  presence of Sunanda (P.W.2) of the dead body of Devkabai  (hereinafter referred to as \021deceased\022). The dead body was  thereafter referred for post-mortem examination and post- mortem was conducted by Dr. Chaudhari (P.W.6). According  to Dr. Chaudhari, the cause of death was shock due to head  injury.  P. S. 1. Pandharinath Vaidya, thereafter, drew the  scene of the offence Panchanama in the presence of Sanjay  (P.W.3) and seized from the scene of the offence a wooden log,  control soil and blood mixed soil. He thereafter, recorded the  statements of the two minor sons of deceased Devkabai viz.  Rahul (P.W.4) and Sunil (P.W.5). Clothes of deceased Devkabai  came to be seized by Panchanama. The Appellant was arrested  and arrest Panchanama was drawn. The clothes, which were  on the person of the appellant, also came to be seized and the  same are Article Nos.5 and 6. The seized property was referred  to the Chemical Analyzer at Aurangabad vide requisition.  Further to the completion of investigation, a charge sheet  against the appellant, came to be filed.

4.      Prosecution version was as follows:

       Rahul (P.W.4) son of the appellant and deceased  Devkabai, stated that the appellant was unemployed and was  addicted to liquor and would pick up quarrels with deceased  Devkabai often.  On the day of the incident Rahul (P.W.1) was  sleeping on a clot alongwith his younger brother Sunil (P.W.5).   They were awakened on hearing the noise of quarrel between  the appellant and Devkabai.  According to him, at that time,

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his mother was cooking and was preparing bread.  The  appellant dealt a blow of wooden log on her head, as a result  she sustained bleeding injuries. He accordingly went running  to call his maternal aunt Sumanbai (P.W.1).  He narrated the  incident to her and along with her immediately rushed back to  the house.  On seeing Sumanbai (P.W.1), the appellant fled  from the house.  Near to the scene of the offence the wooden  log Article-3 was lying.  He noticed two bleeding injuries on  the head of his mother Devkabai.  Devkabai was shifted to the  hospital by Sumanbai (P.W.1) and Sunanda (P.W.2).  Devkabai  succumbed to her injuries in the hospital.          5.      On the case being committed to the Court of Sessions,  trial Judge framed a charge against the Appellant for offence  punishable under Section 302 of Indian Penal Code. The  Appellant denied the guilt and claimed to be tried.   Prosecution, in its effort to substantiate the charge, examined  eight witnesses.  The trial Judge accepted the evidence of the  eye witnesses viz. Rahul (P.W. 4) and Sunil (P.W. 5) and  convicted and sentenced the accused as afore stated.

6.      Before the High Court the accused appellant contented  that the evidence of PWs. 4 & 5, who were the child witnesses,  could not be accepted.  In any event offence is not covered  under Section 302 IPC.  This plea was resisted by the State by  supporting the judgment of conviction as recorded by the trial  court. As noted above, the appeal was dismissed.

7.      The stands taken before the High Court were reiterated.   According to the appellant prosecution version, accepted in  toto, goes to show that the assault was made in course of  sudden quarrel and by a piece of wood blow was given and,  therefore, the Section 302 IPC has no application, and  Exception 4 to Section 300 IPC applies.

8.      Learned counsel for the State supported the judgment of  the High Court.

9.      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.

10.     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

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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\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 or 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. These aspects have been highlighted in  Dhirajbhai Gorakhbhai Nayak v. State  of Gujrat [2003 (5)  Supreme 223].  When the factual scenario is considered in the  legal principles indicated above, the inevitable conclusion is  that Exception 4 to Section 300 IPC has application to the  facts of the case.  11.     In the light of the principles set out above the conviction  is to be made under Section 304 Part I IPC and not Section  302 IPC.  The conviction is accordingly altered. Custodial  sentence of ten years would meet the ends of justice. The  appeal stands partly allowed.