Nandlal vs The State Of Maharashtra

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

JUDGMENT

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

Signature Not Verified imposed upon him. By the same judgment, the High Court Digitally signed by MAHABIR SINGH Date: 2019.03.15 16:55:00 IST Reason: 1 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

2 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

4 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

5 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

7 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

8 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

9 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

10 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

11 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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