BABULAL BHAGWAN KHANDARE AND ANR. versus STATE OF MAHARASHTRA

Citation: [2004] SUPP. 6 S.C.R. 633 · Decided: 02-12-2004 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Judgment (excerpt)

BABULAL BHAGWAN KHANDARE AND ANR. 
v. 
STATE OF MAHARASHTRA 
DECEMBER 2, 2004 
[ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] 
Penal Code, 1860; Ss. 34, 96 to 105, Exception 4 to Section 300 and 
Section 302: 
A· 
B 
Murder of three persons-Right of private defence-Applicability of- C 
Held: Notwithstanding origin of sudden quarrel by way of provocation or 
striking blow by one party on another, yet their subsequent conduct may 
put both the parties on equal footing in ~espect of guilt-Exception 4 to 
· Section 300 could be applied provided offender not allowed to take undue 
advantage/acted in cruel manner-However, in the facts and circumstances D 
of the case Courts below rightly held that Exception 4 to Section 300 
inapplicable-If the circumstances confirm that right of private defence 
legitimately exercised, Court could consider it even though not pleaded by 
the accused-Though burden of estabiishing self-defence is on the accused, -
it could be discharged by producing material showing preponderance of 
probabilities in favour of the defence/accused-But it should not" be based E 
on surmises and speculations-Since there is no material to suggest that 
the accused persons apprehended danger of any kind from the opposite 
party, the claim of right of private defence rightly discarded by the Courts 
below. 
Section 34-Principle of joint liability-Applicability of 
According to the prosecution, on the fateful day, accused-appellants, 
one of the deceased persons and another were playing cards when there 
arose altercations between the accused and the deceased. However, 
uncle of one of the deceased persons intervened and settled the matter. 
Later, on the same day, accused persons started quarrel again, abused 
the deceased in filthy language and assaulted the deceased, husband of 
the Complainant, and his two nephews with sharp edged weapons. Two 
of the victims succumbed to the injuries even before their hospitalization 
F 
G 
and another died in the hospital. A complaint was lodged by the wife H 
633 
634 
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R. 
A of one of the deceased persons and Police investigated the case. During 
investigation blood stained clothes and weapons used in the crime were 
recovered at the instance of the accused persons, and the. case was 
committed to the Court of Sessions. Charges were framed against the 
accused persons under Sections 302 and 307 read with Section 34 IPC. 
B Trial Court found two of th.e accused persons guilty of committing the 
offence of murder and sentenced them to undergo imprisonment for life 
and also imposed fine; another accused/accused No. 3, wife of one of the 
accused persons, acquitted of all the offences. The Trial Court rejected 
the plea of self-defence and applicability of Exception 4 to Section 300 
c 
IPC. On. appeal, conviction and sentence were affirmed by the High 
Court. Hence the present appeal. 
It was contended for the appellants that the Courts below discarded 
the plea of right of private defence and applicability of Exception 4 to 
Section 300 IPC without properly analyzing the fact; and that in the 
D circumstances of the case, Section 34 IPC cannot be pressed into service. 
E 
Dismissing the appeal, the Court 
HELD : 1. Exception 4 to Section 300 IPC 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. 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 
F 
more appropriately applicable would be Exception 1 to Section 300 IPC. 
G 
Where the offender takes ·undue advantage or has acted in a cruel or 
unusual manner, the benefit of Exception 4 cannot be given to him. If 
the weapon used or the manner of attack by the assailant is out of all 
proportion, that circumstance must be taken into consideration to decide 
whether undue advantage has been taken. [642-F-G-H; 643-D-E) 
Kikar Singh v. State of Rajasthan, AIR (1993) SC 2426, relied on. 
2.1. The liability of one person for an offence committed by another 
in the course of criminal act perpetrated by several persons arises under 
H Section 34 IPC if such criminal act is done in furtherance of a common 
BABULAL BHAGWAN KHANDARE v. STATE 
635 
intention

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