1. Dispute over construction expenses — sudden quarrel and assault — fatal injury caused by weapon — conviction under Section 302 IPC read with Section 34 IPC. (Para 3 , 4 )
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2019 Supreme(SC) 304
SUPREME COURT OF INDIA
R. BANUMATHI, R. SUBHASH REDDY, JJ.
NANDLAL – Appellant
Versus
THE STATE OF MAHARASHTRA – Respondent
CRIMINAL APPEAL NO. 510 of 2019 (Arising out of SLP(Criminal) No. 2655 of 2019 @SLP (Crl.) D. No. 29728 of 2018)
Decided on : 15-03-2019
Advocates Appeared:
For the Appellant :Mr. Vishal Rai, Advocate, Mr. Dinesh Chandra Pandey, Advocate
For the Respondent:Mr. Nishant Ramakantrao Katneshwarkar, Advocate, Ms. Deepa M. Kulkarni, Advocate and Mr. Anoop Kandari, Advocate
For the Appellant :Mr. Vishal Rai, Advocate, Mr. Dinesh Chandra Pandey, Advocate
For the Respondent:Mr. Nishant Ramakantrao Katneshwarkar, Advocate, Ms. Deepa M. Kulkarni, Advocate and Mr. Anoop Kandari, Advocate
IMPORTANT POINT
The case of single blow in heat of passion and retaliation of stick blow falls within Exception 4 to Section 300.
Headnote:Indian Penal Code, 1860 – Section 304 Part II – Sudden quarrel – No premeditation – appellant causing single blow to deceased by gupti in heat of passion and retaliation of stick blow by PW1 – Case falls within Exception 4 to Section 300 – Conviction modified from section 302 to 304 Part II.(Para 15)
(2017) 5 SCC 796; (2004) 11 SCC 395; (2006) 7 SCC 391 – Relied upon
Criminal Appeal Nos.286-288 of 2019 – Distinguished
Facts of the case:
The trial court convicted all the three accused under Section 302 I PC read with Section 34 I PC and sentenced each of them to undergo life imprisonment.
The High Court affirmed the conviction of the appellant and the sentence of life imprisonment imposed upon him. The High Court acquitted accused No. 2 and 3.
Finding of the Court:
The case falls within Exception 4 to Section 300 IPC.
Result: Appeal partly allowed.
Legal Category Hierarchy
Table of Contents
2. Appellant claims the act occurred during a sudden fight without premeditation under Exception 4 to Section 300 IPC; State contends returning with a weapon indicates premeditation. (Para 8 , 9 )
3. The short time gap and proximity of the appellant's house make the return with a weapon part of the same sudden quarrel rather than a premeditated act. (Para 14 , 15 )
4. Exception 4 to Section 300 IPC applies if the act is committed without premeditation in a sudden fight without taking undue advantage or acting cruelly. (Para 12 , 13 )
5. Conviction modified from Section 302 IPC to Section 304 Part II IPC and sentence reduced to twelve years imprisonment. (Para 16 )
6. What are the essential requirements for a case to fall under Exception 4 to Section 300 IPC?
The act must be committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, without the offender having taken undue advantage or acted in a cruel or unusual manner. (Para 12 , 13 )
7. Does returning to one's house to retrieve a weapon during a quarrel necessarily imply premeditation?
Not necessarily. If there is no significant time gap and the house is in close proximity, the act of retrieving a weapon and returning to the scene may be considered an integral part of the same sudden incident rather than a separate, premeditated act. (Para 14 , 15 )
8. What is the legal interpretation of undue advantage under Exception 4 to Section 300 IPC?
The expression undue advantage as used in the provision means unfair advantage. (Para 13 )
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 imposed upon him. By the same judgment, the High Court 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 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 I PC read with Section 34 I PC.
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 I PC read with Section 34 I PC 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 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,
