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2007 Supreme(Bom) 1701
2008 ALL MR (Cri) 248
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
NARESH H. PATIL & P. R. BORKAR, JJ.
Deepak s/o. Dagduba Thorat —Appellant
Vs.
State of Maharashtra —Respondent
Criminal Appeal No.682 of 2005
Decided on : 12th December, 2007
Subject
Criminal Law - Murder
Act Referred
Headnote
Penal Code, 1860 - Section 300, Exception 4-Applicability of-Word "fight"-Not means mere verbal exchange of words-It conveys something more than verbal quarrel-Postulates a bilateral transaction in which blows are exchanged between parties.-It may be noted that for bringing the case under Exception 4 of Section 300 of the Indian Penal Code, there must be a ’fight’ and ’fight’ does not mean mere verbal exchange of words. The word "fight" conveys something more than verbal quarrel. It postulates a bilateral transaction in which blows are exchanged. It takes at least two to make a fight like in affray. A fight is combat between two or more persons with or without weapons. The word "fight" occurring in Section 300, Explanation I postulates a bilateral transaction in which blows are exchanged between the parties.
2. Appellant- Deepak was tried with his wife Dwarkabai and mother Sushilabai for committing offences punishable under Sections 302. 307. 324 all read with Section 34 of the Indian Penal Code. It is alleged that in furtherance of their common intention the three accused had caused murder of Urmila Gajendra Thorat, attempted to commit murder of PW-6 Gajendra Thorat and also voluntarily caused hurt to PW-9 Malanbai with an axe, a deadly weapon and thus committed offences punishable under Sections 302. 307, 324 each read with Section 34 of the Indian Penal Code. The appellant is acquitted of offence punishable under Section 324 read with Section 34 of the Indian Penal Code. Mother and wife of the appellant are acquitted of all offences charged.
3. Briefly stated facts giving rise to this case are as follows. The appellant Deepak is cousin of PW6 Gajendra. Their houses are adjoining each other at village Pangari, Taluka OharaI', District Beed. On 3.10.2004 PW-6 Gajendra, his mother PW-9 Malanbai and his wife Urmilabai had gone to their field for thrashing Sunflowers. In the evening when deceased Urmila and PW-9 Malanbai came home, they saw that the accused had removed parapet wall above roof on the common wall of the houses of appellant and PW-6 Gajendra. The roof consisted of corrugated tin sheets. They also found debris. So deceased Urmila and PW -9 Malanbai started quarrelling with the appellant, his wife and mother. There was exchange of words. At that time PW-9 Gajendra came home. At that time accused no.1 came and inflicted a knife blow on the abdomen of Urmila. She fell down. PW9 Gajendra went for help, but appellant inflicted some more knife blows on PW-6 Gajendra. Neighbour PW-8 Abasaheb Thorat and others intervened. It is also alleged that original accused no.2 Dwarkabai had held PW-9 Malanbai and original accused no.3 Sushilabai gave a blow with axe to J'W-9 Malanbai, but she avoided the blow and had an injury on the check.
4. Thereafter injured PW-6 Gajendra, his wife Urmila and PW-9 Malanbai were taken to Dharur. However, doctor was not available there and, therefore, the injured were taken to Ambajogai by PW -1 Prakash Shingare who is maternal cousin of PW-6 Gajendra. On way to Ambajogai, Urmila had succumbed to the injuries. PW-6 Gajendra told as to how incident happened to PW-1 Prakash Shingare and PW-I Prakash Shingare lodged complaint at the police station as above. Thereafter crime was registered. Police came to the spot and drew spot panchanama. Inquest on the dead body was performed. Dead body was sent for postmortem which was performed by PW-2 Dr. Tapase. Dr. Chausalkar (PW-3) examined PW-6 Gajendra and treated him. There is no medical evidence regarding PW-9 Malanbai. Police arrested the appellant. He produced the knife used in the incident. The clothes of deceased Urmila and PW-6 Gajendra were attached. The attached articles were sent to the Chemical Analyser. Police recorded statements of witnesses.
8. It is argued before us that at the time of evidence, PW-6 Gajendra and PW-9 Malanbai stated that on the day of incident they worked with deceased Urmila in the field. There was thrashing of Sunflowers. In the evening Urmila and Malanbai came home. They found that parapet wall of the common wall supporting the roof was removed. So they questioned the accused
