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
JUDGMENT
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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