REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   510     OF 2019 (Arising out of SLP(Crl.) .2655  of 2019

@SLP(Crl.)D. No.29728 of 2018)

NANDLAL                                    …..Appellant

VERSUS

THE STATE OF MAHARASHTRA               …..Respondent

J U D G M E N T  

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the judgment dated 26.08.2010

passed by the High Court of Bombay at Aurangabad Bench in

Criminal Appeal No.293 of 2008 in and by which the High Court

affirmed the conviction of the appellant under Section 302 IPC

read with Section 34 IPC and the sentence of life imprisonment

imposed  upon  him.  By  the  same  judgment,  the  High  Court

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acquitted accused No.2 and 3-Parshuram and his son-Sanjay

respectively.  

3. Appellant-Nandlal  Baviskar  and  one  Dilip  Waman

Baviskar are close relatives. In the year 2005, Dilip constructed

a common wall in between his premises and the house of the

appellant.  As  Dilip  had  incurred  total  expenses  of  the

construction of wall, he demanded half of the expenses from

the  appellant  which  was  refused  by  him.  This  became  the

reason  for  frequent  quarrels  between  the  parties.  On

16.05.2006 at  around 04:00 PM.,  there was an exchange of

abuse  between  Dilip,  his  wife  Sakhubai-PW-4  and  the

appellant. Ganesh-PW-5-son of Dilip called Gopichand Waman

Baviskar-PW-1.  Accordingly,  Gopichand  and  his  brother

Lakhichand (deceased) who was physically  disabled went  to

the house of Dilip and they tried to pacify the situation. In that

process,  Lakhichand  had  also  abused  the  appellant.  Being

annoyed, the appellant assaulted Lakhichand with stick on his

back.  On seeing the said assault  on his  brother,  Gopichand

gave a stick blow on the head of the appellant.  The appellant

thereafter went away from the spot to his house and returned

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back along with Parshuram and his son Sanjay-accused No. 2

and 3 respectively. At this time, the appellant was armed with a

gupti, while Parshuram was allegedly armed with  ballam and

Sanjay  was armed with  a  stick.  When Gopichand,  Dilip  and

Lakhichand saw the appellant approaching towards them along

with two other  persons,  having weapons in their  hands,  it  is

alleged that Gopichand and Dilip went at one side but because

of  physical  disability,  Lakhichand  was  not  quick  enough  to

move. The appellant attacked Lakhichand with gupti on his left

armpit.  Parshuram  assaulted  Lakhichand  with  ballam; while

Sanjay assaulted him with stick.  Due to assault,  Lakhichand

sustained bleeding injuries on his chest, left armpit and became

unconscious  there.  Thereafter,  the  appellant  and  the  other

accused  persons  ran  away  from  the  spot.  Gopichand-PW-1

along  with  his  sister  in  law-Sakhubai-PW-4  and  others  took

Lakhichand  to  Government  Hospital,  Adawad  where  on

examination, he was declared dead. Law was set in motion.  

4. Upon completion of investigation, charge sheet was filed

against the appellant and two other accused under Section 302

IPC read with Section 34 IPC.

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5. To substantiate the charges against the appellant and the

other  accused,  the  prosecution  examined  sixteen  witnesses

including  four  eye-witnesses  and  also  produced  material

objects and exhibited number of documents. The accused were

questioned under Section 313 Cr.P.C. about the incriminating

evidence  and  circumstances  and  they  denied  all  of  them.

Based upon the oral evidence and recovery of  gupti from the

appellant-accused, the trial court found the appellant-accused

guilty. The trial court pointed out that the injuries caused by the

appellant has pierced through the upper end of left  arm and

then entered the chest by causing small fracture to the fourth

rib and caused injury to the lungs. Based on the evidence of

the eye-witnesses and other evidence, the trial court held that

the  appellant  caused  the  fatal  injuries  to  the  deceased  and

accused No.2 and 3 have assaulted the deceased with ballam

and stick and convicted all  three of  them under Section 302

IPC read with Section 34 IPC and sentenced each of them to

undergo life imprisonment.  

6. In  appeal,  the  High  Court  held  that  only  the  appellant

caused fatal injuries to the deceased with lethal weapon and

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the High Court affirmed the conviction of the appellant and the

sentence of  life  imprisonment  imposed upon him.  Insofar  as

accused No.2 and 3, the High Court held that accused No.2

and 3 came along with the appellant to the place of occurrence

only  in  the  later  part  of  the  incident  and  that  there  was  no

common  intention  to  commit  murder  of  the  deceased  and

therefore, the High Court acquitted accused No.2 and 3.  

7. Aggrieved  by  the  judgment  of  the  High  Court,  the

appellant-  accused  has  filed  this  appeal.  When  the  matter

came up for hearing, this Court  vide  order dated 04.09.2018

issued  notice  only  limited  to  the  nature  of  offence  and  the

quantum of sentence.  

8. Placing reliance upon  Surain Singh v. State of Punjab

(2017)  5  SCC  796,  the  learned  counsel  for  the  appellant

submitted that the incident occurred in a sudden quarrel and

after  the  appellant  was  attacked  by  Gopichand-PW-1,  the

appellant went to his house and came back and in a sudden

fight attacked the deceased and that there was no intention on

the  part  of  the  appellant  to  commit  murder  of  deceased

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Lakhichand and  hence,  the  case  falls  within  Exception  4  to

Section 300 IPC.

9. Refuting  the  contention,  the  learned  counsel  for  the

respondent-State submitted that the blow was inflicted on the

appellant by Gopichand in the first incident and thereafter, the

appellant ran away from the spot and went to his house and

returned with a gupti in his hand along with accused No.2 and 3

and therefore, the occurrence cannot be said to be a case of

“sudden  fight’.  It  was  further  submitted  that  the  appellant’s

conduct  in  going  to  his  house  and  bringing  the  gupti  and

attacking  the  deceased  Lakhichand  clearly  shows  that  the

occurrence was not in the heat of sudden fight and thus the

offence was clearly a case of murder falling under Section 302

IPC and not falling under any of the exceptions.

10. We  have  heard  Mr.  Dinesh  Chandra  Pandey,  learned

counsel  appearing  for  the  appellant  and  Mr.  Nishant

Ramakantrao  Katneshwarkar,  learned  counsel  appearing  for

the respondent-State and perused the impugned judgment and

materials on record.

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11. The  only  point  falling  for  consideration  is  whether  the

appellant-accused has made out a case for modification of his

conviction  under  Section  304  Part  II  IPC instead  of  Section

302 IPC?

12. In order to bring the case within Exception 4 to Section

300 IPC, the following conditions enumerated therein must be

satisfied:- (i) The act must be committed without premeditation

in a sudden fight  in the heat  of  passion;  (ii)  upon a sudden

quarrel;  (iii)  without  the  offender’s  having  taken  undue

advantage; and (iv)  the accused had not acted in a cruel or

unusual manner.

13. Even  if  the  fight  is  unpremeditated  and  sudden,  if  the

weapon  or  manner  of  retaliation  is  disproportionate  to  the

offence and if the accused had taken the undue advantage of

the  deceased,  the  accused  cannot  be  protected  under

Exception  4  to  Section  300  IPC.  Considering  the  scope  of

Exception 4 to Section 300 IPC, in Sridhar Bhuyan v. State of

Orissa (2004) 11 SCC 395, this Court held as under:-

“7. For bringing in operation of Exception 4 to Section 300 IPC, it

has  to  be  established  that  the  act  was  committed  without

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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.

8. 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………..  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 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

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taken undue advantage or acted in a cruel or unusual manner.

The  expression  “undue  advantage”  as  used  in  the  provision

means “unfair advantage” [underlining added].”

The same principle was reiterated in  Pappu v. State of M.P.

(2006) 7 SCC 391 and in  Surain Singh v. State of Punjab

(2017) 5 SCC 796 where the conviction under Section 302 IPC

was modified under Section 304 Part II IPC.

14. In the light of the above principles, we have to consider

whether  facts  of  the  present  case  fall  under  Exception  4  to

Section 300 IPC or not?  Gopichand-PW-1/complainant is the

real  brother  of  deceased  Lakhichand  and  Dilip  and  the

appellant is the cousin brother of their father. The house of the

appellant and the house of Dilip are adjacent to each other and

Dilip constructed a common wall between his premises and the

house of the appellant and there was a dispute between them

in sharing the expenses of  the  construction  of  wall  and this

became the reason for frequent quarrels between the parties.

On the date of occurrence i.e. on 16.05.2006 at around 04:00

PM, there was an exchange of abuse between Dilip, his wife

Sakhubai-PW-4 and the appellant. Ganesh-PW-5, son of Dilip

called Gopichand-    PW-1. Accordingly, PW-1 and his brother

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Lakhichand (deceased) went to the house of Dilip and tried to

pacify  the  situation  which  could  not  be  controlled.  In  that

process, deceased abused the appellant who got annoyed and

assaulted Lakhichand with stick on his back. On seeing this,

Gopichand-PW-1  gave  a  stick  blow  on  the  head  of  the

appellant. It was thereafter, the appellant went to his house and

returned back armed with gupti and other accused and inflicted

injury with  gupti on the left  armpit  of  Lakhichand. The above

incident happened only after the exchange of abuse and the

stick blow given by Gopichand on the head of the appellant. As

noted above, the dispute between the appellant and Dilip was

due  to  construction  of  a  common  wall  and  non-sharing  of

expenses. The house of the appellant, being the next house of

Dilip, there was no time gap between the first incident and the

incident  that  followed,  in  which  the  appellant  inflicted  gupti

injury  on the left  armpit  of  the deceased.  Both the incidents

cannot be said to be two different parts but are integral part of

the same incident.  

15. In  the  judgment  cited  by  Mr.  Nishant  Ramakantrao

Katneshwarkar,   learned   counsel   appearing   for  the

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respondent-State  in  Criminal  Appeal  Nos.286-288  of  2019,

Asif  Khan  v.  State  of  Maharashtra  and  Another  dated

05.03.2019, the accused thereon went away from the scene of

occurrence on the motorcycle and he came back after ten to

fifteen minutes and then attacked the deceased and in such

facts and circumstances, it was held that both are two different

incidents. The facts of  the case in hand stand on a different

footing. The deceased abused the appellant who got annoyed

and first attacked Lakhichand and on seeing this, Gopichand

gave a stick blow on the head of the appellant and thereafter,

the appellant went to his house situated next door and came

back with a gupti.  Inflicting injury on the deceased is part of the

same incident and cannot be said to be a different part to hold

that  the  act  was  premeditated  and  intentional.  As  rightly

contended by learned counsel  for  the appellant,  the incident

was in a sudden quarrel and there was no premeditation. One

of the conditions of Exception 4 is that the offender ought not to

have  taken  the  “undue  advantage”  or  acted  in  a  cruel  or

unusual manner. The appellant inflicted a single blow injury with

gupti on the left armpit which pierced through the upper end of

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the  left  arm and  then  entered  the  chest  causing  fracture  of

fourth rib and reached till the lung causing rupture of left lung

vasculature. Though, the  gupti  was a dangerous weapon, the

appellant-accused caused a single injury which pierced into the

lung. Having sustained a stick blow from Gopichand-PW-1, in

the sudden quarrel and in the heat of passion, the appellant

inflicted the injury on deceased Lakhichand.  Considering the

facts and circumstances of the case, in our view, the case falls

within Exception 4 to Section 300 IPC. The conviction of the

appellant-accused  under  Section  302  IPC  is  liable  to  be

modified as Section 304 Part II IPC.  

16. In  the  result,  this  appeal  is  partly  allowed  and  the

conviction of the appellant under Section 302 IPC is modified

as conviction under Section 304 Part II IPC and the appellant is

sentenced to undergo imprisonment for twelve years.

………………………….J.                                                     [R. BANUMATHI]

………………………….J.                                                               [R. SUBHASH REDDY] New Delhi; March 15, 2019.

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