Smt. Sandhya Jadhav Vs. State of Maharashtra  Insc 165 (31
Arijit Pasayat & S.H. Kapadia
out of SLP (Crl.) No.6361 of 2005) ARIJIT PASAYAT, J.
calls in question legality of the judgment rendered by a Division Bench of the
Bombay High Court Nagpur Bench disposing of two appeals; one filed by the
appellant and the other by two co-accused person. Challenge was to the
conviction recorded and sentence imposed by the 6th Additional Sessions Judge,
Nagpur. Appellant was convicted for
offence punishable under Section 302 of the Indian Penal Code, 1860 (in short
the 'IPC') and was sentenced to suffer imprisonment for life and to pay a fine
of Rs.1,000/- with default stipulation. Appellant was
also convicted for offence punishable under Section 325 read with Section 34
IPC along with the other co-accused Kawadu and Arun and all of them were
sentenced to suffer RI for 5 years and to pay a fine of Rs.300/- with default
stipulation. Co-accused persons were convicted for commission of offence
punishable under Section 323 read with Section 34 IPC and sentenced to suffer
RI of one year and to pay a fine of Rs.200/- with default stipulation. Appeal
filed by the appellant was dismissed.
Prosecution version which led to trial
of the accused persons in brief is as follows:
and co-accused persons were residing as tenants in the house of Govindrao
Ghoradkar (PW-2). On 6th June, 1990 at about Govindrao Ghoradkar (PW-2) went to
the accused persons for demanding house rent. The accused persons in collusion
with one another and in furtherance of their common intention assaulted
Govindrao Ghoradkar (PW-2) and when his nephew Anand Ghoradkar (hereinafter
referred to as the 'deceased') intervened in the matter to separate them, appellant Sandhya delivered a knife blow on the back
of the deceased Anand and committed his murder. On the complaint lodged by
Govindrao Ghoradkar (PW-2) and Gajanan Ghoradkar, brother of deceased, police
registered two separate reports, i.e. (Exh.22) and report (Exh.20)
respectively. Investigation was conducted and the accused persons were
charge-sheeted for having committed offences punishable u/s 302 read with
Section 34 of IPC and u/s 324 read with Section 34 of IPC and so far as accused
nos. 2 and 3 are concerned, they were also charged for having committed offence
punishable u/s 323 read with Section 34 of IPC.
reply to the charge, all the accused persons pleaded not guilty and took a
common plea that on the day of the incident Govindrao Ghoradkar (PW-2) came
along with 5-6 persons and beat them. On conclusion of the trial, the trial
Court found the accused persons guilty of the charges, convicted and sentenced
them which were matter of challenge in the two appeals before the High Court.
appeals primary stand was that the case was not covered under Section 302 IPC
so far as the appellant is concerned. The occurrence took place in the course
of sudden quarrel where the so-called eye-witness and the deceased were the
aggressors; the right of private defence was available to her and in any event
the occurrence took place in case of sudden quarrel and, therefore, Section 302
IPC have no application. It was also pointed out that
there was no intention to kill as a single blow was allegedly given and,
therefore, also Section 302 IPC had no application. The High Court did not
accept the contentions and upheld the conviction as recorded by the Trial
counsel for the appellant submitted that even if the accusations of the prosecution
are accepted in toto a case under Section 302 IPC is not made out, in view of
the categorical findings recorded by the Trial Court and the High Court that
the assaults were made in course of a quarrel and conviction should not have
been done in terms of Section 302 IPC. According to him Exception 4 to Section
300 IPC is applicable.
reply, learned counsel for the State submitted that looking at the factual
scenario as projected by the prosecution witnesses,
and the nature of the injury inflicted, the Trial Court was justified in
recording conviction under Section 302 IPC and the High Court has rightly
dismissed the appeal.
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.
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
is provocation in Exception 4 as in Exception 1; but the injury done is not the
direct consequence of that provocation.
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 sudden fight;
the offender's having taken undue advantage or acted in a cruel or unusual
the 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
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'.
aforesaid aspects have been highlighted in Sridhar Bhuyan v. State of
Orissa (JT 2004 (6) SC 299), Prakash Chand
v. State of H.P. (JT 2004 (6) SC 302), and Sachchey Lal Tiwari v.
State of Uttar Pradesh (JT 2004 (8) SC 534).
residual plea is that only a single blow was given.
it cannot be laid down as a rule of universal application that whenever death
occurs on account of a single blow, Section 302 IPC is ruled out, the fact
situation has to be considered in each case.
factual background is considered in the legal position as set out above, the
inevitable conclusion is that Exception 4 to Section 300 IPC has full
application. The conviction is to be altered to Section 304 Part II IPC instead
of Section 302 IPC as done by the Trial Court and affirmed by the High Court.
Custodial sentence of 7 years would meet the ends of justice.
is allowed to the aforesaid extent.