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REPORTABLE              IN THE SUPREME COURT OF INDIA                     CRIMINAL APPELLATE JURISDICTION

            CRIMINAL APPEAL NO. 111 of 2008

MURLIDHAR SHIVRAM PATEKAR & ANR.    ……APPELLANTS     

VS.

STATE OF MAHARASHTRA        ……RESPONDENT

J U D G M E N T

V. GOPALA GOWDA, J.

This appeal is filed by the appellants against  

the judgment and order dated 20.01.2004 passed in  

Criminal Appeal No. 255 of 1999 by the High Court  

of  Judicature  at  Bombay,  Bench  at  Aurangabad,

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whereby  the  High  Court  upheld  the  Trial  Court’s  

decision of convicting the appellants under Section  

302 of the Indian Penal Code (in short IPC) on the  

charge of murder of one Asaram and sentencing them  

to  life  imprisonment  along  with  a  fine  of  

Rs.1,000/- and in default of payment of fine, to  

undergo further simple imprisonment for one year.  

The  present  appeal  is  filed  by  the  appellants  

praying  to  set  aside  the  impugned  judgment  and  

order of the High Court, urging various grounds.  

2. The necessary relevant facts are briefly stated  

hereunder:

The accused-appellant Nos. 1 and 2 are husband  

and  wife  respectively,  who  are  the  residents  of  

Village  Motigavan  in  Jalgaon  District  in  

Maharashtra. They have been charged with the murder  

of one Asaram, as a result of a scuffle that took  

place between the accused and the deceased. An FIR  

was  originally  lodged  by  Madhav  Gore,  the  

complainant,  who  had  witnessed  the  incident.

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Initially, the crime was registered under Section  

307 read with Section 34 of IPC. However, after the  

death  of  Asaram,  the  crime  was  registered  under  

Section 302 read with Section 34 of IPC. The Trial  

Court found both the accused guilty of the offence  

of  murder  and  sentenced  them  to  suffer  life  

imprisonment.  

3. Aggrieved by the judgment and order of the Trial  

Court, the appellants filed an appeal before the  

High Court of Bombay, pleading provocation on the  

part  of  the  deceased  and  lack  of  evidence  and  

prayed for reversal of the conviction and sentence.  

The High Court dismissed the appeal and upheld the  

verdict  of  the  Trial  Court.  Hence,  the  present  

appeal.

4. It has been contended by the learned counsel on  

behalf  of  the  appellants  that  on  27.08.1993  at  

about 6.00 p.m. when it was raining, Asaram entered  

the  house  of  the  appellants  and  raped  appellant  

No.2, in the absence of her husband-appellant No. 1

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and  children.  On  28.08.1993,  when  the  

accused/appellants  were  proceeding  to  report  the  

incident at the police station, Asaram allegedly  

tried to prevent them from doing the same and as a  

result a scuffle broke between the accused No.1 and  

the  deceased-Asaram.  In  the  scuffle,  the  wife,  

accused/appellant  No.  2  noticed  that  Asaram  had  

over-powered  her  husband-appellant  No.1,  she  

therefore caught hold of the genitals of Asaram and  

tried to rescue appellant No.1. Thereafter, Asaram  

took  out  a  knife  from  his  pocket  and  made  an  

attempt  to  stab  appellant  No.1.  It  is  further  

contended  by  the  learned  counsel,  that  the  

deceased-Asaram during the course of the scuffle,  

fell  on  the  knife,  thus  causing  injuries  to  

himself.  The  accused  No.1  removed  the  knife  and  

proceeded  towards  the  police  station  where  he  

produced the kife before the P.S.I. Andhale (P.W.8)  

and  also  lodged  an  F.I.R  against  the  deceased-

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Asaram for committing rape on his wife-appellant  

No. 2 under Section 376 of the IPC.

5. In justification of failure to lodge a complaint  

on  the  very  same  day,  it  is  contended  by  the  

learned counsel on behalf of the accused-appellants  

that  it  was  raining  heavily  on  the  date  of  

occurrence of the crime; therefore, they could not  

approach any villagers or the police station.

6.  On the other hand, it has been contended by the  

prosecution  that  the  accused-appellant  No.2,  

noticing that the deceased Asaram had over powered  

the  accused-appellant  No.1,  caught  hold  of  his  

genitals and facilitated accused-appellant No. 1 to  

give blows with knife. The incidence was witnessed  

originally by the complainant, Madhav Gore who died  

during the pendency of the trial as well as Kishan  

Mohite (PW-2), Pandurang (PW-3) and Prahlad Mohite  

(PW-4). The deceased was taken to the hospital at  

Jalna in a tractor. A seizure Panchanama was made.  

The  Head-Constable  Babula  Labhange  (PW-7),  while

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proceeding towards the said village met the injured  

and recorded his dying declaration at about 10.45  

a.m. on the same day. The doctor at Jalna hospital  

directed  that  the  deceased  be  taken  to  the  

Government Medical College Hospital at Aurangabad  

as he was in serious condition. The deceased was  

therefore,  brought  by  the  police  to  the  Ghati  

Hospital  at  Aurangabad,  where,  the  doctor  on  

examination of the injured, declared him dead.

   It is further contended by the prosecution that  

Madhav, the complainant filed his complaint which  

came  to  be  registered  as  F.I.R  for  an  offence  

punishable under Section 307 read with Section 34  

of  IPC,  which  after  the  death  of  the  deceased  

Asaram  was  converted  to  Section  302  read  with  

Section 34 of the IPC. The blood stained clothes of  

the deceased were sent for chemical analysis along  

with the weapon (knife) and the blood samples of  

the accused and the deceased. The body was sent for  

post mortem to Dr. Anil Digambarrao Jinturkar (PW-

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5) on 28.08.1993. The accused came to be arrested  

on the very same day and charge-sheet was filed on  

completion of the investigation.

7.  The Judicial Magistrate, 1ST Class committed the  

case to the Sessions Court at Jalna on 19.02.1994.  

Charges were framed against both the accused under  

Section 302 read with Section 34 of the IPC, which  

the accused consequently denied and claimed to be  

tried.  In  addition  to  3  eye  witnesses,  panch  

witness-Fakir Mohite PW-1, was examined to prove  

spot punchnama.

8. Dr. Anil Jinturkar (PW-5), in his disposition  

has stated before the Trial Court that the injuries  

had been caused within 6 to 12 hours before the  

post  mortem  and  in  his  cross  examination,  he  

specifically denied the suggestion that injuries 1  

and 2 were possible my means of fall over the knife  

or during the scuffle. It was contended that this  

evidence clearly supports the findings recorded by  

the Trial Court that Asaram died homicidal death on

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account of the injuries sustained by him by means  

of a sharp weapon like a knife. The cause of death  

as described by the doctor was hemorrhagic shock  

due  to  stab  injury  over  the  chest  and  abdomen  

involving liver and lung.

It is further contended by the prosecution that  

during the cross examination of PW-3, he has stated  

that there was no rain during the night of the  

incident (alleged rape). He also denied that Asaram  

had taken out the knife and assaulted the accused  

no.1.  The  evidence  of  PW-4  and  PW-5  further  

supported  the  description  of  the  incident  as  

narrated by PW-3.

9. Further, as contended by the prosecution that  

the High Court has rightly held that the defence  

plea raised by the accused no.1 has been falsified  

by the ocular evidence of PW-2, PW-3 and PW-4. The  

evidence of the three eyewitnesses is not impaired  

in any manner and the accused no.2 had contradicted  

her statement made in the complaint. The accused-

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appellant  No.  2  by  holding  the  genitals  of  the  

deceased  had  virtually  disarmed  him,  giving  

accused-appellant No. 1 the opportunity to catch  

hold of his collar and inflict him with blows with  

the  knife.  Hence,  it  was  a  premeditated  act  to  

attack  the  deceased.  The  High  Court  has  further  

held that the requirements in the Exception 4 of  

Section 300 IPC are not attracted in the present  

case as held by this Court in the case of Surinder  

Kumar v. Union Territory of Chandigarh1. The High  Court further held that the common intention of the  

accused was shared and developed by them right in  

their house. The possession of the deadly weapon by  

accused no. 1 and the injuries inflicted on the  

deceased that were caused on his vital parts were  

attributed to accused no.1.  

10.  On  the  basis  of  the  aforesaid  rival  legal  

contentions, evidence of the prosecution witnesses  

on record and the reasoning taken by the courts  1

(1989) 2 SCC 217

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below,  the  following  points  would  arise  for  

consideration of this Court:

1. Whether the death of Asaram was homicidal in the  light  of  the  evidence  produced  by  Prosecution  Witnesses?

2. Whether the appellants in furtherance of their  common intention, to take revenge of the alleged  rape on accused No. 2, murdered Asaram and whether  the  accused  are  entitled  to  the  benefit  under  Exception 4 of Section 300, IPC?

3. What order?

Answer to Point No.1:

11. The prosecution has relied on the evidence of  

PW-5, Dr. Jinturkar, who examined and conducted the  

post-mortem  of  Asaram’s  body.  In  his  deposition  

before the Trial Court, PW-5 stated as under:

  “External Injuries: 1.  An  elliptical  obliquely  placed  stab  wound  

over the chest and right side, anteriorly in  the  8th intercostals  space,  at  midclavicular  line, it was 2” x 0.75” x lung deep, it was  directed medially and upwards, torn tags of

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under lying pleura were found to be protruding  out of the wound, there was oozing of dark  reddish  colour  blood  through  the  wound,  margins clean cut, inverted, surrounding skin  shows blood stains.

2.  An  elliptical  obliquely  placed  stab  wound  over the chest and right hypochohorium of the  abdomen just about ½” below and lateral to the  injury No.1 and in the 9th intercostal space,  it  was  2”  x  0.75”  x  liver  deep,  directed  medially downwards in slightly oblique manner,  underlying  tissue  and  dark  reddish  blood  oozing  out  of  the  wound  substance.  Margins  clean cut inverted, bevelling noticed at life  margin of wound, dried blood stains seen over  the skin in vicinity.

3. I.V. injections sites seen at cubital fosse.

INTERNAL INJURIES 4.  On internal examination I found congestion of  

meanings, brain was pale. 5.  The thorasix wall on the right side showed  

corresponding  elliptical  stab  wound  at  all  layers beneath injury no. 1 and no. 2 of col.  No.17. Pleura shows clean cut elliptical stab  below injury no. 1 and 2 as described in col.  No.17, with collection of 310 ml. of reddish  fluid  blood  in  the  right  plural  cavity,  trachea contains reddish blood.

6.  Right lung shows collapsed appearance and an  oblique stab wound of 2” x 0.75” in size at  its lower lobe, dark adherent blood clots seen  at this site, involved tissue was friable.

7.  Left lung was pale in appearance, pericardium  showed petechial hemorrhage.

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8.  The  Heart  was  contracted  and  right  side  contained  scanty  blood  and  left  side  was  empty.

9.  He  further  stated  that  the  walls  showed  corresponding  stab  injury  at  all  layers  beneath injury No.2 of col. No.17. Peritoneum  was  cut  obliquely  at  right  hypondrium,  measuring 2” x 0.75” in dimension, Peritoneal  cavity contained about 450 ml of dark reddish  blood and plenty of blood clots. Liver showed  clean cut through stab injury of size 2” x  0.75”  at  its  super  lateral  aspect  of  right  lobe  of  liver.  The  right  lung  was  also  damaged. He further stated that these injuries  were possible by means of a knife and they  were sufficient in ordinary course of nature  to cause death.  

10. He  has  further  stated  that  these  injuries  would have been caused within 6 to 12 hours  before the post mortem. According to him the  cause of death was heamorrhagic shock due to  stab injuries on chest and abdomen involving  liver and right lung and accordingly he issued  post-mortem notes at Exh.32. he also issued  provisional death certificate at Exh.33.

11. Further,  PW-5  has  categorically  denied  the  suggestions  that  injuries  1  and  2  were  possible by means of fall over the knife or in  scuffle or self inflicted.”

In  Black’s  Law  Dictionary,  Abridged  6th  

Edition, 1991 at page 819, it is stated that:

“Preponderance of evidence is evidence which is  of greater weight or more convincing than the  evidence which is offered in opposition to it;

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i.e. evidence which as a whole shows that the  fact sought to be proved is more probable than  not.”

Thus, it is stated that the medical evidence acts  

as a check upon the testimony of eye witnesses and  

also  as  independent  evidence  in  so  far  as  it  

establishes facts, example, nature and grievousness  

of  the  injuries  suffered  by  the  deceased.  

Therefore,  the  above  mentioned  findings  of  PW-5  

clearly supports the findings recorded by the Trial  

Court that the death of Asaram was homicidal on  

account of the injuries sustained by him by means  

of a sharp weapon like knife on 28.08.1993.

Answer to Point Nos.2 & 3 :

12. Now we have to examine whether the appellant in  

furtherance  of  their  common  intention,  to  take  

revenge  of  the  alleged  rape  on  accused  No.  2,  

murdered Asaram. For this purpose the prosecution  

has relied on the following evidence:

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1. Direct evidence of PW-2 Kisan, PW-3 Pandurang  and PW-4 prahlad.

2. Dying declaration of the deceased Asaram at  Exb.40

3. Evidence of Accused No.2 and circumstantial  evidence on record.  

Black’s Law Dictionary, Abridged 6th Edition,  

1991 at page 819 further states that:

“A person, who deposes before the Court a  fact which he states he saw, must either  speak  truly  or  must  have  invented  the  story.  Test  of  Proof  is  the  test  of  probabilities upon which a prudent man may  base his opinion.”  

     Adverting to the ocular evidence of PW-2, who along  

with complainant Madhavrao was sitting in front of  

their  drawing  room,  heard  the  shout  of  deceased  

Asaram and rushed to the said place of incidence  

and found that the accused no.2 had caught hold of  

the genitals of the deceased while accused no. 1  

had caught hold of the collar of the deceased. PW-2  

further disclosed that the accused no.1 had a knife  

in his hand and he inflicted 2 knife blows into the

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chest and stomach of Asaram, who fell on the ground  

and the accused no. 1 and 2, went away.

   The testimony of PW-2 is fully corroborated  

with  the  testimonies  of  PW-3,  which  was  further  

corroborated by the testimony of PW-4, who had also  

stated the same version as deposed by PW-2 and PW-

3.

13.  Thus,  the  evidence  on  record  led  by  the  

prosecution eyewitnesses is sufficient to show that  

the  accused  nos.  1  and  2  are  the  persons,  who  

caused injuries on the vital parts of the body of  

the deceased.

14.  After hearing the learned counsel for both the  

parties and carefully examining the ocular evidence  

on record, we would like to bring certain relevant  

facts into light that were deposed by the above  

mentioned witnesses in their testimony and cross  

examination,  which  the  High  Court  and  the  Trial  

Court have failed to notice the same.

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    The fact that all the above witnesses saw the  

incidence of scuffle is not disputed; however they  

entered the scene only after they heard the shout  

of Asaram. What transpired prior to that, between  

the  accused  and  the  deceased  has  not  been  

corroborated by anyone save the accused no. 2. None  

of the witnesses seem to know the cause of the  

scuffle  and  neither  were  they  able  to  hear  the  

altercation that was going on between them.

    Further, all the witnesses saw accused no.1  

inflicting injury to deceased-Asaram by way of a  

knife that was later produced as the murder weapon.  

However, none of the witnesses have stated anywhere  

that  the  knife  belonged  to  the  accused  no.  1,  

therefore,  the  question  that  who  had  actually  

possessed the knife first is still unknown.

15.  Further,  the  evidence  of  PW-4  cannot  be  

completely relied upon. This is because of the fact  

that in his cross examination he has clearly stated  

that the incident was already over by the time he

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reached the said place where the scuffle had taken  

place.  The  facts  and  circumstances  must  be  

reasonable and proximate and not conjectural and  

remote and the prosecution has failed to satisfy  

this Court beyond any reasonable doubt the reason  

and  intent  of  the  accused  that  resulted  in  the  

death of Asaram.

16.  Now,  we  move  on  to  the  aspect  of  dying  

declaration. The evidence of the deceased at Exb.39  

which was reduced to writing by PW-8 at Exb.40, who  

has recorded the statement of Asaram at 10.45 a.m.,  

stated that on enquiring about the assault, Asaram  

had stated that the accused assaulted him under the  

pretext that he had entered their house. Asaram had  

further stated that the accused assaulted him in  

the morning at about 8 a.m. There is no infirmity  

in  recording  the  statement  of  the  said  dying  

declaration as it was recorded on the way when the  

injured was being taken to the police station and  

from there to the hospital.

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17.  Now we come to the evidence of accused no. 2,  

the wife, which was outrightly disregarded by the  

High  Court  as  well  as  the  Trial  Court.  In  her  

deposition,  she  has  clearly  stated  that  the  

deceased  Asaram  had  entered  her  house  and  had  

pressed her neck and put a knife over her chest  

rendering her defenceless and making it impossible  

for her to raise her voice and thereby he committed  

rape.  She  further  stated  that  the  incident  took  

place when her husband and children were not at  

home. She has also stated that when her husband  

reached  home  after  a  while  she  disclosed  the  

incident of rape to him. However, they could not  

approach the police station or the Sarpanch on the  

very same night as it was raining but proceeded  

towards the police station the next morning at 8.00  

a.m.  She  further  stated  that  Asaram,  who  was  

sitting  with  the  other  prosecution  witnesses,  

rushed  towards  them  and  prevented  them  from  

proceeding further. Thereby, the deceased started

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assaulting the accused. She has further stated that  

the deceased had over powered her husband and none  

of the prosecution witnesses came to their rescue.  

Then she caught hold of the testicles of Asaram and  

her husband snatched the knife from the hand of the  

deceased  who  had  pierced  himself  in  the  stomach  

during  the  scuffle  with  the  knife.  Her  husband  

thereby proceeded towards the police station and  

narrated the incidence of the scuffle and lodged a  

complaint of rape against the deceased.

18.  Further, on the question of not raising the  

voice by the accused no. 2, in our opinion, it is  

understandable  under  this  situation  that  the  

accused no.2 could have been in a state of shock  

and  scared  and  hence  would  not  have  been  in  a  

position  to  reveal  the  incident  of  the  rape  to  

anyone.  Thus,  the  contention  made  by  the  

prosecution that the delay in lodging the complaint  

or  revealing  the  same  to  the  Sarpanch  was  

premeditated on the part of the accused cannot be

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accepted by us on the fact and circumstances of the  

case. Even for the sake of argument, if we consider  

that  the  delay  in  lodging  the  complaint  was  a  

premeditated plan on the part of the accused, then  

the accused would not have delayed confronting the  

deceased  until  8.00  a.m.  the  next  morning.  

Premeditation calls for construction of a plan to  

execute a certain act. If the accused had planned  

on confronting and eventually committing the act of  

murder against the deceased, then they would not  

have executed the same in their own neighbourhood,  

in the presence of a number of witnesses. Hence, we  

are of the opinion that there was no premeditation  

on the part of the accused and the scuffle took  

place due to sudden provocation on the part of the  

deceased. This is further corroborated by the fact  

that  the  accused  themselves  reached  the  police  

station and lodged a complaint against the deceased  

and confessed to the scuffle, thereby submitting

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the  knife  (the  murder  weapon)  at  the  police  

station.  

19. The question however still remains as to the  

nature of the offence committed by the accused and  

whether it falls under Exception 4 of Section 300,  

IPC.  

  In the case of  Surinder Kumar  (supra), this  Court has held as under:-

“7. To  invoke  this  Exception  four  requirements  must  be  satisfied,  namely,  (i) it was a sudden fight; (ii) there was  no premeditation; (iii) the act was done  in  a  heat  of  passion;  and  (iv)The  assailant  had  not  taken  any  undue  advantage or acted in a cruel manner. The  cause of the quarrel is not relevant nor  is it relevant who offered the provocation  or  started  the  assault.  The  number  of  wounds caused during the occurrence is not  a decisive factor but what is important is  that the occurrence must have been sudden  and unpremeditated and the offender must  have acted in a fit of anger. Of course,  the offender must not have taken any undue  advantage  or  acted  in  a  cruel  manner.  Where, on a sudden quarrel, a person in  the heat of the moment picks up a weapon  which is handy and causes injuries, one of  which proves fatal, he would be entitled

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to the benefit of this Exception provided  he has not acted cruelly.”

(emphasis supplied)

Further in the case of  Arumugam  v. State,2 in  

support of the proposition of law that under what  

circumstances Exception 4 to Section 300, IPC can  

be  invoked  if  death  is  caused,  it  has  been  

explained as under:-

“18. 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 Penal Code, 1860. 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 had 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  

2

 (2008) 15 SCC 590, at page 595

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Crl. A. No. 111 of 2008                                                   25

Thus,  in  entirety,  considering  the  factual  

scenario of the case on hand, the legal evidence on  

record and in the background of legal principles  

laid down by this Court in the cases referred to  

supra, the inevitable conclusion is that the act of  

the accused-appellants was not a cruel act and the  

accused  did  not  take  undue  advantage  of  the  

deceased. The scuffle took place in the heat of  

passion and all the requirements under Section 300  

Exception 4, IPC have been satisfied. Therefore,  

the benefit of Exception 4 under Section 300, IPC  

is attracted to the fact situations and both the  

appellants are equally entitled to this benefit.

20. Thus,  considering  the  factual  background  and  

the legal position set out above, the inevitable  

conclusion is that the appropriate conviction of  

the appellants would be under Section 304 Part II  

IPC instead of Section 302 IPC. Hence, the sentence  

of imprisonment for 10 years would meet the ends of  

justice.

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Crl. A. No. 111 of 2008                                                   26

21. The appeal is disposed of in the above said  

terms.  

                     ……………………………………………………………………J.  

   [DIPAK MISRA]                                                          ……………………………………………………………………J.  

    [V.GOPALA GOWDA]   New Delhi,                                     September 25, 2014