A two-judge bench of the apex court on 15.03.2019 in NANDLAL V. THE STATE OF MAHARASHTRA (CRIMINAL APPEAL NO. 510 OF 2019) allowed the appeal filed against the judgment and order passed by the High Court of Bombay at Aurangabad Bench affirming the conviction of the appellant under Section 302 IPC read with Section 34 IPC and the sentence of life imprisonment imposed upon him and acquitted accused No.2 and 3-Parshuram and his son-Sanjay respectively.

The bench was headed by:-

JUSTICE R. BANUMATHI

JUSTICE R. SUBHASH REDDY

FACTS:

Appellant-Nandlal Baviskar and Dilip Waman Baviskar were close relatives. 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 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 was 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 and died.

Law was set in motion. Upon completion of investigation, charge sheet was filed against the appellant and two other accused under Section 302 IPC read with Section 34 IPC. The trial court held that the appellant caused the fatal injuries to the deceased and accused No.2 and 3 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.

In appeal, the High Court held that only the appellant caused fatal injuries to the deceased with lethal weapon and 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 affirmed the conviction of the appellant and the sentence of life imprisonment imposed upon him while acquitting the others.

Aggrieved by the judgment of the High Court, the appellant- accused filed the appeal.

ISSUES:

• 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?
• Whether facts of the present case fall under Exception 4 to Section 300 IPC or not?

·OBSERVATIONS:

The court observed that:-

• 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.
• Even if the fight was unpremeditated and sudden, if the weapon or manner of retaliation was 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.
• The fourth exception of Section 300 IPC covers acts done in a sudden fight.
• There was no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties were more or less to be blamed.
• 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 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.
• 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 taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”.
• 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.
• The case comes within the Exception 4 to Section 300 IPC considering the facts and circumstances of the case.

HELD:

The Supreme Court partly allowed the appeal in terms of the conviction of the appellant and ordered to undergo imprisonment for twelve years.

For full judgement refer:

[embeddoc url=”https://www.supremecourt.gov.in/supremecourt/2018/29728/29728_2018_Judgement_15-Mar-2019.pdf” download=”all”]