http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (crl.)  21 of 2007

PETITIONER: Ramkishan s/o Madhav Shelke                             ...Appellant

RESPONDENT: The State of Maharashtra                                        ...Respondent

DATE OF JUDGMENT: 08/01/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

(Arising Out of S.L.P. (Crl.) No.2581 of 2006)  

Dr. ARIJIT PASAYAT, J.

       Leave granted.

       Appellant along with two others faced trial for alleged   commission of offence punishable under Section 302 read with  Section 34 of the Indian Penal Code, 1860 (in short the ’IPC’).   The trial court found each of the accused persons guilty and  convicted each to undergo rigorous imprisonment for life and  to pay a fine of Rs.500/- each with default stipulation.  The  conviction and the sentence were challenged by the three  accused persons in appeal before the Bombay High Court,  Aurangabad Bench.  By the impugned judgment the High  Court set aside the conviction of the co-accused i.e. accused  no.2 and accused no.3 before the trial court. However, the  appeal filed by the appellant was dismissed.

       Background facts in a nutshell are as follows:

The incident in question was alleged to have taken place  on 22.01.2002. It was reported to Police Station, Newasa by  Narsingh Mohan Gavane (PW-5) by his complaint (Exh-21). On  this complaint, ASI Laxman Pawar (PW-10) registered an  offence punishable under section 302 IPC vide CR No.17/02.  Further investigation was conducted by Police Inspector  Pandharinath Kedare (PW-11).

On 22.01.2002 between 2.30 to 3.00 pm near the field of  accused no.1-appellant on the bank of Godavari river within  the jurisdiction of village Galnimb, Mohan Gavane (hereinafter  referred to as the ’deceased’) along with his family members  including his sons Narsing (PW-5), Devising (PW-6) and his  wife Chandrabhaga (PW-9) was staying on the bank of river by  erecting a hut. Accused persons whose land is also on the side  of bank of river, had their farm house in their field. Deceased  was mainly doing a business of fishing. The deceased and his  family members used to plant watermelons in the alluvial  land. The accused claiming to be the owners of the said land  used to take objection to the deceased and his family members  and were giving threat to kill in case they cultivate that alluvial  land. On the day of incident, Narsing (PW-5) had gone to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

river to catch fish. His brother  Devising (PW-6) had gone in  the village on a cycle to fetch fertiliser. Their mother  Chandrabhaga (PW-9) along with her daughter-in-law was  looking after their watermelon crop and were busy in cutting  grass. Deceased Mohan was taking his cattle towards the well.  While he was proceeding from the field of accused persons,  accused-appellant Ramkishan rushed towards him having an  axe. His sons Sadashiv and Kakasaheb also rushed towards  deceased while uttering abuses. That time, they were having  swords in their hand. Deceased was caught hold by accused  nos.2 and 3, who threw him down on the ground.  Thereafter,  accused no.1 inflicted a blow by axe on the head of the  deceased. This incident was witnessed by Narsing (PW-5) as  well as Chandrabhaga (PW-9) who were at some distance.  They immediately rushed to the spot. Before their arrival,  accused had left the spot and ran away. Devising (PW-6) who  was coming towards the field had seen the accused who were  running away from the spot. Deceased was unconscious. With  the help of one Shivaji Mule, Narsing (PW-5) took deceased  Mohan to the village and from the village, he carried him to a  doctor at Salbatpur. However, on the way, deceased Mohan  succumbed to the injuries and Dr. Praihad Nagargoje (PW7)  declared him dead. Thereafter, complaint (Exh-21) was lodged  and offence was registered.  

On completion of investigation, the charge sheet was  placed. In trial, each of the accused persons was found guilty,  convicted and sentenced as aforesaid.   

Before the High Court the stand taken by the accused  was that the evidence of the so called eye witnesses clearly  show that they are exaggerated, full of holes and do not depict  a correct position of the factual scenario. The role of accused  Nos. 2 and 3 was not established. In any event, the occurrence  took place because of the fact that the deceased had  encroached on the land of the accused-appellant and in spite  of being told not to encroach upon his land, he repeatedly  came upon the land and created disturbances. Further, a  single blow was given and Section 302 IPC was ruled out. The  High Court had found substance in the stand taken by the  accused persons so far as the A2 and A3 are concerned, but  found the evidence to be adequate so far as A1 is concerned.   Accordingly, the appeal filed by the present appellant was  dismissed.

The stand taken before the High Court was reiterated by  learned counsel for the appellant before this Court.   Additionally, it was submitted that a single blow was given,  and there was no pre-meditation. In fact, when the accused  found that the deceased was encroaching upon his land, who  did not stop in spite of being told repeatedly not to do so, and  did not pay any heed,  and thereafter the blow was allegedly  given.  Since the High Court accepted that A2 and A3 had  been falsely implicated, in essence, evidence which was  discarded being exaggerated and untrustworthy, so far as the  other accused persons are concerned, has been relied upon to  convict the accused.

The assault undisputedly was given on the course of the  sudden quarrel, without pre-mutation and without the  accused taking any undue advantage.

Learned counsel for the respondent-State supported the  judgment of the High Court.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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 reason 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.    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’.     

       Where the offender takes undue advantage or has acted  in a cruel or unusual manner, the benefit of Exception 4  cannot be given to him.  If the weapon used or the manner of  attack by the assailant is out of all proportion, that  circumstance must be taken into consideration to decide  whether undue advantage has been taken.  In Kikar Singh v.  State of Rajasthan  (AIR 1993 SC 2426) it was held that if the  accused used deadly weapons against the unarmed man and  struck a blow on the head it must be held that using the blows  with the knowledge that they were likely to cause death, he  had taken undue advantage.   

       The above position was highlighted by this Court in  Babulal Bhagwan Khandare and Anr. v. State of Maharashtra  [2005 (10) SCC 404].

When the background facts are considered on the  touchstone of a legal principle as set out above, the inevitable  conclusion is that the conviction needs to be altered to be one

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

under Section 304 Part I IPC instead of 302 IPC as was held  by the trial court and the High Court. Custodial sentence of 10  years would suffice. The appeal is allowed to the aforesaid  extent.