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CASE NO.: Appeal (crl.)  438 of 2008

PETITIONER: Trimbak

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 04/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: JUDGMENT

CRIMINAL APPEAL NO 438 OF 2008 (Arising out of SLP (Crl.) No. 4974 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment of a Division  Bench of the Bombay High Court, Nagpur Bench, dismissing  the appeal filed before it by the appellant.  The appellant was  convicted for allegedly having committed an offence  punishable under Section 302 of the Indian Penal Code, 1860  (in short the ’IPC’) and was sentenced to imprisonment for life  by learned Sessions Judge Akola in Sessions Trial No. 58 of  2001.  He was also found guilty of offence punishable under  Section 324 IPC. Sentences of imprisonment for life and fine  with default stipulation and sentence of 6 months and fine  with default stipulation were imposed for the two offences.  It  was further ordered that if the fine amount is deposited  then  a sum of Rs.2,000/- was to be paid to the complainant as a  compensation in terms of Section 357 of the Code of Criminal  Procedure, 1973 (in short the ’Cr.P.C.’).

3.      Background facts in a nutshell are as follows: Narmadabai (PW2) is the widow of Shamrao Telgote  (hereinafter referred to as ’deceased’) who was working in the  field of one S. K. Majid, situated near village Gaigaon.  Shamrao was living in the field in a hut and the accused was  working in the field and living there in a hut. The house of  owner of the field S.K. Masjid was also situated in the field and  S.K. Majid was residing with his mother Gulabbi in the said  house. On 24.12.2000 at about 7.30 p.m. Narmadabai and  Gulabbi were sitting in front of the house of Gulabbi in the  field. The accused and deceased Shamrao were present there.  There were verbal exchanges between the accused and  Shamrao. Thereafter accused picked up the axe which was  lying there and he assaulted Shamrao with the said axe on the  head of Shamrao. When Narmadabai rushed forward to  intervene, the accused also gave a blow with the axe on her  head. On account of assault, Shambrao died on the spot and  his wife sustained bleeding injuries. Thereafter, the accused  ran away from the field. Since it was night time and as there

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was no conveyance for going to the Police Station situated at  Ural, Narmadabai did not go to the Police Station. She lodged  an oral report on the next day i.e. 25.12.2000 in the morning.  On the basis of this report, F.I.R. under Sections 302 and 307  IPC was registered by PSI Madhukar Bhoge (PW 8). The  investigation was taken up and the accused was arrested on  01.01.2001. After completing the investigation, charge-sheet  was filed against the accused under Sections 302 and 307  IPC. The case was committed to the Court of Session.  In the  trial, the prosecution examined eight witnesses and also  produced several documents to prove its case against the  accused.  The defence of the accused was one of denial. After  appreciating the evidence led by the prosecution, the trial  court convicted the accused for the offences under Sections  302 and 324 IPC.  The accused was acquitted of the offence  under Section 307 IPC.         The conviction and sentence as imposed by the trial  Court came to be challenged by the appellant before the High  Court.  Primary stand was that the occurrence took place in  course of sudden quarrel and the evidence tendered does not  inspire confidence.  The stand of the State, on the other hand,  was that Narmadabai (PW-1) whose evidence was vital for the  prosecution case herself had suffered injuries.  The appeal was  dismissed.

4.      In support of the appeal, the stand taken before the High  Court was reiterated.  Additionally, it was submitted by  learned counsel for the appellant that the factual scenario  clearly established that in course of sudden quarrel the attack  was made and the deceased lost his life.

5.      Learned counsel for the State submitted that considering  the nature of the injury the appellant has been rightly  convicted for offence punishable under Section 302 IPC.

6.      The basic stand of the appellant appears to be that in  course of a quarrel the occurrence took place.  This fact has  also been accepted by Narmadabai (PW 1) stated that there  were verbal exchanges between the accused and the deceased  and thereafter accused picked up the axe which was lying  there and assaulted the deceased.

7.      According to appellant background facts projected by the  prosecution clearly show that the assault was given in the  course of a sudden quarrel. There was no premeditation and  the accused did not take advantage and had also not acted in  a cruel manner. Only one blow was allegedly given after  picking up the axe.  Prior to that he was not armed. In any  event only one blow was given. In essence it was submitted  that Section 302 IPC has no application and fourth exception  of Section 300 IPC applies.

8.      The pivotal plea relates to the applicability of Exception 4  of Section 300 IPC.

9.      For bringing in its operation 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 to 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

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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 do 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 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  IPC. It takes two to make a fight. Heat of passion requires that  there must be no time for the passions to cool down.  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 proven facts of each case. For the  application of Exception 4 to Section 300 IPC, 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".

11.     It cannot be laid down as a rule of universal application  that whenever one blow is given, Section 302 IPC is ruled out.  It would depend upon the weapon used, the size of it in some  cases, force with which the blow was given, part of the body on  which it was given and several such relevant factors.

12.     Considering the factual background of the case, in our  considered view the appropriate conviction would be under  Section 304 (I) IPC, and custodial sentence of ten years would  meet the ends of justice.

13.     The appeal is allowed to the aforesaid extent.