IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.                    OF 2009 (Arising out of SLP (Crl.) Nos. 1669-1670 of 2008)

Ravindra Shalik Naik and Ors.   ..Appellants    

Versus

State of Maharashtra ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1. Leave granted.  

2. Challenge in these appeals is to the common judgment of a Division

Bench of the Bombay High Court, Nagpur Bench, dismissing the appeals

filed by the present appellants. The appellants were found guilty of offence

punishable under Sections 302 read with 34 of the Indian Penal Code, 1860

(in short the ‘IPC’). The appellant Ravindra was also convicted for offence

punishable  under  Section  324  IPC.  Appellants  Ravindra,  Naresh  and

Shalikrao  are  hereinafter  referred  to  as  A-1,  A-2  and  A-3.  The  learned

Adhoc  Additional  Sessions  Judge,  Yuvatmal   had  found  the  appellants

guilty as aforenoted.  

3. Background facts in a nutshell are as follows:

Appellant  Shalik  is  father  of  appellants  Ravindra  and  Naresh.  On

13.11.1999, at about 7 p.m. appellant Naresh was going to his house and

was carrying bundle of cotton/grass. The road to his house was adjacent to

the house of complainant Vandana (PW1). On the way, the cotton bundle hit

the  roof  of  the  complainant’s  house  and,  therefore,  husband  of  the

complainant, Dewanand (PW 3) accosted appellant Naresh and told him that

he should have been more careful while carrying the bundle of cotton and

ought to have seen that no damage was done to the roof of the house of

complainant.  Quarrel  ensued  between  appellant  Naresh  and  Dewanand

(PW-3) and there was exchange of words between them. Appellants Shalik

and Ravindra also came to the spot of incident and started quarrelling with

the husband of the complainant- Dewanand (PW3). The father-in-law of the

complainant, Kisan Gedam (hereinafter referred to as ‘deceased’) intervened

to pacify the quarrel between appellants and his son Dewanand. Appellants

2

Shalik, Ravindra and Naresh went inside their house, which was close to the

spot of incident and all of them returned to the spot armed with axe, knife

and  gupti.  All  the  three  appellants  inflicted  injuries  on  the  head  and

abdomen  of  deceased  Kisan  by  means  of  those  weapons.  Appellants

Ravindra  and  Naresh  inflicted  injuries  on  the  hand  of  husband  of

complainant-Dewanand (PW3) with those weapons with intention to cause

his death. Deceased Kisan was taken to the Hospital at Ner where he was

declared dead.

After completion of investigation charge sheet was filed and since the

accused persons pleaded innocence trial was held.  

Placing reliance on the evidence of complainant Vandana (PW-1) and

Dewanand  (PW-3)  the  trial  Court  held  the  accused  persons  guilty  as

aforenoted.  

In appeal, the primary stand was that PWs 1 and 3 should not have

been relied upon and in any event the provisions of Section 302 IPC are not

attracted to the facts of the case.  The High Court did not find any substance

in the plea and upheld the conviction and sentence as afore noted.  

3

The stands taken before the High Court were re-iterated in the present

appeals.  

So far as the reliability of the evidence of PWs 1 and 3 are concerned

their  evidence  is  clear  and  cogent  and  though  they  were  subjected  to

incisive  cross  examination,  nothing  material  could  be  elicited  to  discard

their evidence.  

4. The main plank of the appellants’ arguments relates to applicability of

section  302  IPC.  It  has  been  contended  that  there  is  no  pre-meditation

involved and in course of sudden quarrel the incident took place.   

5. 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.

4

6. 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 to be blamed. It may be that one of them

5

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 acting 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

6

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 Buddu Khan v. State of Uttarakhand (SLP (Crl.)

No. 6109/08 disposed of on 12.1.2009)   

7. Considering  the  background  facts  in  our  considered  opinion  the

appropriate  conviction  would  be  under  Section  304  Part  I  IPC.  The

custodial sentence of 10 years would meet the ends of justice.  

8. The appeals are allowed to the aforesaid extent.      

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, February 09, 2009

7