(Arising out of SLP (Crl.) No.4630 of 2006)
Arijit Pasayat, J. - Leave granted
Challenge in this appeal is to the
judgment of Bombay High Court, Aurangabad Bench, dismissing the appeal
of the appellant who faced trial for alleged commission of offence
punishable under Section 302 of the Indian Penal Code, 1860 (in short
IPC ) and was sentenced to imprisonment for life by learned Additional
Sessions Judge, Ahmednagar.
Background facts in a nutshell are as follows:
The complainant Sajay Vithal was serving as a Waiter in Sanjog Hotel for
2-1/2 months prior to the incident. Pradip Panjabi is the owner of the
said hotel. Business in the hotel is conducted from 5 p.m. to 11 p.m.
After closure of the hotel, complainant Sanjay alongwith 5 workers of
the hotel used to reside in a staff room. Hotel was closed on 3.11.1999
at 11.30 p.m. Pradip Panjabi and other staff members went out at about 1
a.m. Thereafter on 4.11.1999 around 1.30 a.m. in the night, altercations
took place between Ramesh Nayar and Anna Devraj (hereinafter referred to
as the deceased ) on the point of switching off the lights. Both used to
reside in the staff room. At that time, complainant, Kundlik Chavhan and
Chhotu intervened. Thereafter complainant and Anna Devraj slept in the
staff room. At about 8.30 a.m. complainant heard loud noise relating to
a quarrel and got up.
He saw the accused and the deceased
quarrelling and accused inflicting two blows by a wooden log on the head
of Anna Devraj. Ramesh Nayar threatened the complainant that if he
disclosed anything to anybody, he will teach him a lesson. Hence
complainant went out of the room. He disclosed the incident to the
persons in the hotel working as gardeners in the morning. At that time,
Anna Devraj was not speaking anything. He was lying unconscious and
moaning. Thereafter owner of the hotel was informed on phone. He came
and the deceased was shifted to Civil Hospital for treatment. His right
ear was bleeding.
Thereafter, the complainant and
hotel owner went to Tophkhana Police Station and reported the matter to
police as per Exh.26. A.S.I. Puri registered the offence as Crime
No.227/99 under Sections 307, 506 of IPC and handed over investigation
to PW.7. P.S.I. Jyoti Madhav Karandikar. After completion of
investigation, charge sheet was placed and accused-appellant faced trial
as he denied the occurrence and pleaded false implication. The trial
Court placed reliance on the evidence of Sanjay Diwate (PW-5). It is to
be noted that certain other persons i.e. Dhirendera Suryavanshi (PW-2),
Ashok Palve (PW-3) and Datta Pingale (PW-6) were claimed to be
eye-witnesses, but they made departure from the statements given during
investigation. The trial Court found the evidence of PW-5 to be credible
and cogent and recorded his conviction and imposed the sentence of
imprisonment for life.
4. The conviction and sentence were challenged before the High Court,
which as noted above, dismissed the appeal.
5. In support of the appeal, leaned
counsel for the appellant submitted that the conviction could not have
been recorded solely on the testimony of one alleged eye-witness PW-5.
Alternatively, it is submitted that Section 302 IPC has no application
to the facts of the case in view of the factual scenario highlighted.
According to him in course of a sudden quarrel the incident happened. In
other words, according to him Exception 4 to Section 300 IPC applies.
6. Learned counsel for the
respondent-State on the other hand supported the judgment of conviction
7. Coming to the question whether on
the basis of a solitary evidence conviction can be maintained, a bare
reference to Section 134 of the Evidence Act, 1872 (in short the
Evidence Act ) would suffice. The provision clearly states that no
particular number of witnesses is required to establish the case.
Conviction can be based on the testimony of a single witness if he is
wholly reliable. Corroboration may be necessary when he is only
partially reliable. If the evidence is unblemished and beyond all
possible criticism and the court is satisfied that the witness was
speaking the truth then on his evidence alone conviction can be
8. For bringing in operation of
Exception 4 to Section 300 IPC, it has to be established that the act
was committed without 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.
9. 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. The exception is
founded upon the same principle, for in both there is absence of
premeditation. But, while in the case of Exception 1 there is total
deprivation of self-control, in case of Exception 4, there is only that
heat of passion which clouds men s sober reasons and urges them to deeds
which they would not otherwise do.
There is provocation in Exception 4
as in Exception 1; but the injury done is not the direct consequence of
that provocation. In fact Exception 4 deals with cases in which
notwithstanding that a blow may have been struck, or some provocation
given in the origin of the dispute or in whatever way the quarrel may
have originated, yet the subsequent conduct of both parties puts them in
respect of guilt upon equal footing. A sudden fight implies mutual
provocation and blows on each side. The homicide committed is then
clearly not traceable to unilateral provocation, nor in such cases could
the whole blame be placed on one side. For if it were so, the Exception
more appropriately applicable would be Exception 1. 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 the 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 taken undue advantage or
acted in cruel or unusual manner. The expression undue advantage as used
in the provision means unfair advantage .
10. The aforesaid aspects have been
highlighted in Sridhar Bhuyan v. State of Orissa (JT 2004 (6) SC
299), Prakash Chand v. State of H.P. (JT 2004 (6) SC 302),
Sachchey Lal Tiwari v. State of Uttar Pradesh (JT 2004 (8) SC 534),
Sandhya Jadhav v. State of Maharashtra [2006(4) SCC 653] and
Lachman Singh v. State of Haryana [2006 (10) SCC 524].
11. Considering the factual
background the inevitable conclusion is that the appropriate conviction
would be under Section 304 Part I, IPC and not Section 302 IPC.
Custodial sentence of 10 years would meet the ends of justice.
12. The appeal is allowed to the
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