NANDLAL versus THE STATE OF MAHARASHTRA on 15 March 2019

[2019] 4 S.C.R. 199

NANDLAL

v.

THE STATE OF MAHARASHTRA

(Criminal Appeal No. 510 of 2019)

MARCH 15, 2019

[R. BANUMATHI AND R. SUBHASH REDDY , JJ.]

Penal Code, 1860 – s.302/34 or s.304 Part II – Convictionunder – Prosecution case that there was exchange of abuse betweenthe two parties over expenses of the construction of wall – Victimand his brother tried to pacify the parties – However, they were notable to control the situation – Appellant, accused No.2 & 3 causedinjuries to the victim – Victim died – Trial court convicted all threeaccused u/s.302/34 of IPC – High Court held that only appellantcaused fatal injuries to the victim and affirmed his conviction andacquitted accused No.2 & 3 – Appellant contended that incidentoccurred in a sudden quarrel and after he was attacked by PW-1 –In a sudden fight, appellant went to his house and came back andattacked the victim – Appellant further contended that he had nointention to commit murder of victim, hence the case falls withinException 4 to s.300 of IPC – Held: Appellant rightly contendedthat the incident was in a sudden quarrel and there was nopremeditation – One of the conditions of Exception 4 is that theoffender ought not to have taken the “undue advantage” or actedin a cruel or unusual manner – Appellant inflicted a single blowinjury with gupti which pierced into the lung of the victim – Afterhaving sustained a stick blow from PW-1, in the sudden quarreland in the heat of passion, the appellant inflicted injury on victim –Thus, the case falls within the Exception 4 to s.300 – Accordingly,the conviction of appellant-accused u/s.302 IPC modified as s.304Part II IPC.

Partly allowing the appeal, the Court

HELD: 1. In the light of the settled principles, this Courthas to consider whether facts of the present case fall underException 4 to Section 300 IPC or not? PW-1/complainant is thereal brother of victim-deceased and ‘D’ and the appellant is the A

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Acousin brother of their father. The house of the appellant and thehouse of ‘D’ are adjacent to each other and ‘D’ constructed acommon wall between his premises and the house of the appellantand there was a dispute between them in sharing the expensesof the construction of wall and this became the reason for frequentquarrels between the parties. On the date of occurrence, thereBwas an exchange of abuse between ‘D’, his wife PW-4 and theappellant. PW-5, son of ‘D’ called PW-1. Accordingly, PW-1 andhis brother victim went to the house of ‘D’ and tried to pacify thesituation which could not be controlled. In that process, victimabused the appellant who got annoyed and assaulted victim withCstick on his back. On seeing this, PW-1 gave a stick blow on thehead of the appellant. It was thereafter, the appellant went to hishouse and returned back armed with gupti and other accusedand inflicted injury with gupti on the left armpit of victim. Theabove incident happened only after the exchange of abuse andthe stick blow given by PW-1 on the head of the appellant. AsDnoted above, the dispute between the appellant and ‘D’ was dueto construction of a common wall and non-sharing of expenses.The house of the appellant, being the next house of ‘D’, therewas no time gap between the first incident and the incident thatfollowed, in which the appellant inflicted gupti injury on the leftEarmpit of the victim. Both the incidents cannot be said to be twodifferent parts but are integral part of the same incident.[Para 14][205-F-H; 206-A-C]

2. It is rightly contended by the appellant, the incident wasin a sudden quarrel and there was no premeditation. One of theFconditions of Exception 4 is that the offender ought not to havetaken the “undue advantage” or acted in a cruel or unusualmanner. The appellant inflicted a single blow injury with gupti onthe left armpit which pierced through the upper end of the leftarm and then entered the chest causing fracture of fourth rib andreached till the lung causing rupture of left lung vasculature.GThough, the gupti was a dangerous weapon, the appellant-accusedcaused a single injury which pierced into the lung. Havingsustained a stick blow from PW-1, in the sudden quarrel and inthe heat of passion, the appellant inflicted the injury on victim-deceased. Considering the facts and circumstances of the case,Hthe case falls within Exception 4 to Section 300 IPC. The conviction A

of the appellant-accused under Section 302 IPC is liable to bemodified as Section 304 Part II IPC. [Para 15][206-G, H;207-A, B]

Sridhar Bhuyan v. State of Orissa (2004) 11 SCC 395– relied on.

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Surain Singh v. State of Punjab (2017) 5 SCC 796;Pappu v. State of M.P. (2006) 7 SCC 391 : [2006] 3Suppl. SCR 394; Asif Khan v. State of Maharashtraand Another 2019 (4) SCALE 7 – referred to.

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.510 of 2019.

From the Judgment and Order dated 26.08.2010 of the High Courtof Judicature of Bombay, Bench at Aurangabad in Criminal Appeal No.293 of 2008.

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Dinesh Chandra Pandey, Vishal Rai, Advs. for the Appellant.

Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Advs. forthe Respondent.

The Judgment of the Court was delivered by F

R. BANUMATHI, J. 1. Leave granted.

2. This appeal arises out of the judgment dated 26.08.2010 passedby the High Court of Bombay at Aurangabad Bench in Criminal AppealNo.293 of 2008 in and by which the High Court affirmed the convictionof the appellant under Section 302 IPC read with Section 34 IPC andthe sentence of life imprisonment imposed upon him. By the samejudgment, the High Court acquitted accused No.2 and 3-Parshuram andhis son-Sanjay respectively.

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3. Appellant-Nandlal Baviskar and one Dilip Waman Baviskarare close relatives. In the year 2005, Dilip constructed a common wall in H

Abetween his premises and the house of the appellant. As Dilip had incurredtotal expenses of the construction of wall, he demanded half of theexpenses from the appellant which was refused by him. This becamethe reason for frequent quarrels between the parties. On 16.05.2006 ataround 04:00 PM., there was an exchange of abuse between Dilip, hiswife Sakhubai-PW-4 and the appellant. Ganesh-PW-5-son of Dilip calledBGopichand Waman Baviskar-PW-1. Accordingly, Gopichand and hisbrother Lakhichand (deceased) who was physically disabled went tothe house of Dilip and they tried to pacify the situation. In that process,Lakhichand had also abused the appellant. Being annoyed, the appellantassaulted Lakhichand with stick on his back. On seeing the said assaultCon 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 returnedback along with Parshuram and his son Sanjay-accused No. 2 and 3respectively. At this time, the appellant was armed with a gupti, whileParshuram was allegedly armed with ballam and Sanjay was armedwith a stick. When Gopichand, Dilip and Lakhichand saw the appellantDapproaching towards them along with two other persons, having weaponsin their hands, it is alleged that Gopichand and Dilip went at one side butbecause 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 assaultedEhim with stick. Due to assault, Lakhichand sustained bleeding injuries onhis chest, left armpit and became unconscious there. Thereafter, theappellant and the other accused persons ran away from the spot.Gopichand-PW-1 along with his sister in law-Sakhubai-PW-4 and otherstook Lakhichand to Government Hospital, Adawad where on examination,he was declared dead. Law was set in motion.F4. Upon completion of investigation, charge sheet was filed againstthe appellant and two other accused under Section 302 IPC read withSection 34 IPC.

5. To substantiate the charges against the appellant and the otherGaccused, the prosecution examined sixteen witnesses including four eye-witnesses and also produced material objects and exhibited number ofdocuments. The accused were questioned under Section 313 Cr.P.C.about the incriminating evidence and circumstances and they denied allof them. Based upon the oral evidence and recovery of gupti from theappellant-accused, the trial court found the appellant-accused guilty. TheH

trial court pointed out that the injuries caused by the appellant has piercedthrough the upper end of left arm and then entered the chest by causingsmall fracture to the fourth rib and caused injury to the lungs. Based onthe evidence of the eye-witnesses and other evidence, the trial courtheld that the appellant caused the fatal injuries to the deceased andaccused No.2 and 3 have assaulted the deceased with ballam and stickand convicted all three of them under Section 302 IPC read with Section34 IPC and sentenced each of them to undergo life imprisonment.

6. In appeal, the High Court held that only the appellant causedfatal injuries to the deceased with lethal weapon and the High Courtaffirmed the conviction of the appellant and the sentence of lifeimprisonment imposed upon him. Insofar as accused No.2 and 3, theHigh Court held that accused No.2 and 3 came along with the appellantto the place of occurrence only in the later part of the incident and thatthere was no common intention to commit murder of the deceased andtherefore, 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, thisCourt vide order dated 04.09.2018 issued notice only limited to the natureof 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 theincident occurred in a sudden quarrel and after the appellant was attackedby Gopichand-PW-1, the appellant went to his house and came backand in a sudden fight attacked the deceased and that there was no intentionon the part of the appellant to commit murder of deceased Lakhichandand 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 Gopichandin the first incident and thereafter, the appellant ran away from the spotand went to his house and returned with a gupti in his hand along withaccused No.2 and 3 and therefore, the occurrence cannot be said to bea case of “sudden fight’. It was further submitted that the appellant’sconduct in going to his house and bringing the gupti and attacking thedeceased Lakhichand clearly shows that the occurrence was not in theheat of sudden fight and thus the offence was clearly a case of murderfalling under Section 302 IPC and not falling under any of the exceptions.

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A10. We have heard Mr. Dinesh Chandra Pandey, learned counselappearing for the appellant and Mr. Nishant RamakantraoKatneshwarkar, learned counsel appearing for the respondent-State andperused the impugned judgment and materials on record.

11. The only point falling for consideration is whether the appellant-Baccused has made out a case for modification of his conviction underSection 304 Part II IPC instead of Section 302 IPC?

12. In order to bring the case within Exception 4 to Section 300IPC, the following conditions enumerated therein must be satisfied:- (i)The act must be committed without premeditation in a sudden fight inCthe heat of passion; (ii) upon a sudden quarrel; (iii) without the offender’shaving taken undue advantage; and (iv) the accused had not acted in acruel or unusual manner.

13. Even if the fight is unpremeditated and sudden, if the weaponor manner of retaliation is disproportionate to the offence and if theDaccused had taken the undue advantage of the deceased, the accusedcannot be protected under Exception 4 to Section 300 IPC. Consideringthe 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 300EIPC, it has to be established that the act was committedwithout premeditation, in a sudden fight in the heat ofpassion upon a sudden quarrel without the offender havingtaken undue advantage and not having acted in a cruel orunusual manner.

8. The fourth exception of Section 300 IPC covers actsdone in a sudden fight. The said exception deals with acase of prosecution not covered by the first exception, afterwhich 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 aremore or less to be blamed. It may be that one of themstarts it, but if the other had not aggravated it by his ownconduct it would not have taken the serious turn it did. Thereis then mutual provocation and aggravation, and it is difficultto apportion the share of blame which attaches to eachfighter. The help of Exception 4 can be invoked if death is F

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caused: (a) without premeditation; (b) in a sudden fight; (c)without the offender’s having taken undue advantage oracted in a cruel or unusual manner; and (d) the fight musthave been with the person killed. To bring a case withinException 4 all the ingredients mentioned in it must be found.It is to be noted that the “fight” occurring in Exception 4 toSection 300 IPC is not defined in IPC. It takes two to makea fight. Heat of passion requires that there must be no timefor the passions to cool down and in this case, the partieshave worked themselves into a fury on account of the verbalaltercation in the beginning. A fight is a combat betweentwo and more persons whether with or without weapons. Itis not possible to enunciate any general rule as to whatshall be deemed to be a sudden quarrel. It is a question offact and whether a quarrel is sudden or not must necessarilydepend upon the proved facts of each case. For theapplication of Exception 4, it is not sufficient to show thatthere was a sudden quarrel and there was no premeditation.It must further be shown that the offender has not takenundue advantage or acted in a cruel or unusual manner.The expression “undue advantage” as used in the provisionmeans “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 796where the conviction under Section 302 IPC was modified under Section304 Part II IPC.

14. In the light of the above principles, we have to consider whetherfacts of the present case fall under Exception 4 to Section 300 IPC ornot? Gopichand-PW-1/complainant is the real brother of deceasedLakhichand and Dilip and the appellant is the cousin brother of theirfather. The house of the appellant and the house of Dilip are adjacent toeach other and Dilip constructed a common wall between his premisesand the house of the appellant and there was a dispute between them insharing the expenses of the construction of wall and this became thereason for frequent quarrels between the parties. On the date ofoccurrence i.e. on 16.05.2006 at around 04:00 PM, there was anexchange of abuse between Dilip, his wife Sakhubai-PW-4 and theappellant. Ganesh-PW-5, son of Dilip called Gopichand-PW-1.

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AAccordingly, PW-1 and his brother Lakhichand (deceased) went to thehouse of Dilip and tried to pacify the situation which could not becontrolled. In that process, deceased abused the appellant who gotannoyed and assaulted Lakhichand with stick on his back. On seeingthis, Gopichand-PW-1 gave a stick blow on the head of the appellant. Itwas thereafter, the appellant went to his house and returned back armedBwith gupti and other accused and inflicted injury with gupti on the leftarmpit of Lakhichand. The above incident happened only after theexchange of abuse and the stick blow given by Gopichand on the headof the appellant. As noted above, the dispute between the appellant andDilip was due to construction of a common wall and non-sharing ofCexpenses. The house of the appellant, being the next house of Dilip,there was no time gap between the first incident and the incident thatfollowed, in which the appellant inflicted gupti injury on the left armpitof the deceased. Both the incidents cannot be said to be two differentparts but are integral part of the same incident.

D15. In the judgment cited by Mr. Nishant RamakantraoKatneshwarkar, learned counsel appearing for the respondent-Statein Criminal Appeal Nos.286-288 of 2019, Asif Khan v. State ofMaharashtra and Another dated 05.03.2019, the accused thereon wentaway from the scene of occurrence on the motorcycle and he cameback after ten to fifteen minutes and then attacked the deceased and inEsuch facts and circumstances, it was held that both are two differentincidents. The facts of the case in hand stand on a different footing. Thedeceased abused the appellant who got annoyed and first attackedLakhichand and on seeing this, Gopichand gave a stick blow on the headof the appellant and thereafter, the appellant went to his house situatedFnext door and came back with a gupti. Inflicting injury on the deceasedis part of the same incident and cannot be said to be a different part tohold that the act was premeditated and intentional. As rightly contendedby learned counsel for the appellant, the incident was in a sudden quarreland there was no premeditation. One of the conditions of Exception 4 is that the offender ought not to have taken the “undue advantage” orGacted in a cruel or unusual manner. The appellant inflicted a single blowinjury with gupti on the left armpit which pierced through the upper endof the left arm and then entered the chest causing fracture of fourth riband reached till the lung causing rupture of left lung vasculature. Though,the gupti was a dangerous weapon, the appellant-accused caused aH

single injury which pierced into the lung. Having sustained a stick blowfrom Gopichand-PW-1, in the sudden quarrel and in the heat of passion,the appellant inflicted the injury on deceased Lakhichand. Consideringthe facts and circumstances of the case, in our view, the case falls withinException 4 to Section 300 IPC. The conviction of the appellant-accusedunder Section 302 IPC is liable to be modified as Section 304 Part IIIPC.

16. In the result, this appeal is partly allowed and the conviction ofthe appellant under Section 302 IPC is modified as conviction underSection 304 Part II IPC and the appellant is sentenced to undergoimprisonment for twelve years.

Ankit Gyan

Appeal partly allowed.

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