Gorakhbhai Nayak Vs. State of Gujarat 
Insc 315 (25 July 2003)
Raju & Arijit Pasayat. Arijit Pasayat,J.
Patel (hereinafter referred to as 'the deceased') was the victim of homicidal
death on 12.8.1993.
appellant Dhirajbhai was alleged to be the assailant.
learned Additional Sessions Judge, Surat, held him guilty of offence punishable under Section 302 of Indian
Penal Code, 1860 (for short 'IPC') and sentenced to suffer imprisonment for
life and to pay fine of Rs.2000/- with default stipulation. It was further
directed that in case fine is paid, the same is to be paid to the deceased's
widow Dahiben as compensation. Appeal before the High Court of Gujarat did not
bring any relief to the accused-appellant and by the impugned judgment
conviction and sentence were upheld.
which led to trial of the accused-appellant are as follows:
(PW1) and the deceased were staying in house No. 7/1427 situated in Dhastripuara
in the city of Surat with her two sons Dhanesh (PW 3)
and Narendra. About 10 days prior to the date of occurrence accused-appellant
had taken his small daughter to the in-law's house and have kept her there. On
his return, the deceased scolded him for leaving a small child at a distant
place and the accused was very angry for this interference in his personal
matters and that led to quarrels - first verbal and then physical.
on the date of occurrence at about 1.30 p.m. when the deceased was sitting at a temple accused-appellant warned him
and challenged him saying that if he wanted to fight he was ready for the same.
This resulted in exchange of words and a fight. Resident of the locality and
PW1 separated them. In the evening Naranbhai (PW8), a friend of deceased came to
the house of deceased and told Dahiben that since the quarrel was going on in
the house, he would take the deceased for seeing a movie. PW1 agreed and both
PW8 and deceased went to see a movie late in the night. As it was mid night
when they got back, PW8 and deceased slept on the verandah of the house while
PW1 and 3 slept inside the house. At about 4.00 p.m. in the morning on hearing shouts for help PW1 opened the door and went
outside. In the meantime PW3 also woke up and he joined his mother outside the
house. They saw the deceased in bleeding condition.
also found the accused-appellant delivering blows on the deceased. PW1 called
out his name and asked him as to why he was doing this and if there was any
problem, that could be sorted out in the morning. The appellant on hearing this
immediately ran away. PW-1 went out and asked for help from the neighbours.
Many of them came to her house. The deceased was taken to hospital where he
breathed his last at about 4.45 a.m. First
information report was lodged at the police station at 5.15 a.m. Investigation was undertaken and charge sheet was
placed on completion of investigation. Ultimately, the matter came to trial by
learned Additional Sessions Judge, Surat. Ten witnesses were examined to further the prosecution version.
Testimony of PWs 1 and 3 was accepted to be credible and as noted above,
learned Trial Judge convicted and sentenced the accused. The High Court in appeal,
did not interfere.
counsel for the appellant submitted that the Trial Court as well as the High
Court lost sight of certain salient features of the case. The accused has taken
a definite plea that PW1 and PW8 were the authors of the crime as they had an
illicit relationship which was not liked by the deceased. On the night of
occurrence they attacked the deceased and his life was snuffed out. Strong
reliance was placed on the evidence of PW2 who resiled from his statement made
during investigation. It was submitted that evidence of such witness is not
necessarily to be wiped out and that portion of evidence which helps either the
prosecution or the defence can be taken note of. Presence of Dhanesh (PW3) at
the spot is clearly ruled out the evidence of PW1.
the medical evidence more particularly testimony of Dr. Rajivbhai (PW7) clearly
establishes that the injury which is stated to have been caused by the accused
could not have been caused by the weapon claimed to be the weapon of assault.
The name of PW3 being absent in the FIR, his presence is doubtful. Though PW1
claimed that her clothes and those of PW8 were blood stained, when they tried
to carry the deceased in injured condition to the hospital, the said apparels
were not seized by the police and this has been accepted by the Investigating
Officer. It was pointed out that the evidence of witnesses clearly shows that
it was a dark night and it was impossible to see anything. So the claim of PW1
and PW3 that they saw the accused-appellant assaulting the deceased is clearly
also submitted that if the prosecution case is accepted in its totality,
Exception 4 to Section 300 is clearly applicable as alleged assaults were made
in course of a quarrel. Motive for the crime as claimed by the prosecution is
too fragile to warrant acceptance.
learned counsel for the State of Gujarat submitted that both the Trial Court as well as the High Court have
found version about alleged illicit relationship between PW1 and PW8 to be a
myth and figment of imagination.
of PW1 and PW3 has not been shaken in spite of the incisive cross-examination.
The courts below have rightly placed reliance on their evidence. Medical
evidence is in no way at variance with ocular evidence and in any event the
ocular evidence being cogent has been rightly accepted. The case is clearly
covered by Section 302 IPC and Exception 4 to Section 300 has no application.
Motive is not a determinative factor to decide whether a crime has been
committed or not.
rival contentions need careful consideration.
to the plea that name of PW3 does not appear in the First Information Report,
it has to be noted that death took place, according to medical records, at
about 4.45 a.m. and the First Information Report
was lodged at about 5.15
a.m. In other words
the First Information Report was lodged almost immediately after the
occurrence. As observed by this Court in Sri Bhagwan v. State of Rajasthan (2001 (6) SCC 296) the mental
condition of the person who has just seen a close relative, the bread-earner
loose his life cannot be lost sight of. The psychic trauma cannot be ignored.
Merely because PW3's name did not figure in the First Information Report, that
is not a suspicious circumstance. Evidence of PWs 1 and 3 has been analysed by
both trial Court and High Court minutely and found to be credible and cogent.
Nothing infirm therein could be shown to weaken their acceptability and
reliability. The Trial Court and the High Court were justified in placing
to the evidence of PW2 on which reliance has been placed by the learned counsel
for the accused- appellant, he has been rightly described as untruthful by the
Trial court and the High Court. He accepted to have come near the house of the
deceased on hearing shouts of Dahiben. But he stated that he did not enquire
how he died and who was the assailant. This conduct was to say the least most
unusual and abnormal. It was not because he was shocked and, therefore, did not
ask. He does not say so. On the contrary, he describes in graphic detail about
alleged illicit relationship between PW1 and PW8. The Trial Court has rightly
observed that he has tried to create a smoke screen. As regards the alleged
discrepancy between medical evidence and ocular evidence it is to be noted that
a combined reading of the evidence of PW9 who examined the deceased after he
was brought to the hospital and PW7 who conducted the post-mortem, it is clear
that there is no discrepancy in the medical evidence vis-à-vis ocular evidence.
Only in respect of injury no.1, there appears to be some confusion but that
does not dilute the prosecution evidence. It would be erroneous to accord undue
primacy to the hypothetical answers of medical witnesses to exclude the eye witnesses
account which has to be tested independently and not treated as
"variable" keeping in view the medical evidence as
"constant". (See State of U.P.
v. Krishna Gopal and Anr. (AIR 1988 SC 2154)
The residuary plea is about applicability of Exception 4 to Section 300.
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.
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.
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
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.
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 sudden fight;
the offender's having taken undue advantage or acted in a cruel or unusual
fight must have been with the person killed.
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'.
provision has no application to the facts of present case.
the factual background established by the materials on record is tested with
the legal principles indicated, the inevitable conclusion is that the appeal is
without merit and deserves dismissal. We direct so.