Ravindra Shalik Naik
& ANR. Vs. State of Maharashtra  INSC 259 (9 February 2009)
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
Dr. ARIJIT PASAYAT, J
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.
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 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.
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.
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.
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
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 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
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.
appeals are allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)