RAMKISHAN S/O. MADHAV SHELKE versus THE STATE OF MAHARASHTRA

Citation: [2007] 1 S.C.R. 217 · Decided: 08-01-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Judgment (excerpt)

RAMKISHAN S/O. MADHA V SHELKE 
A 
v. 
THE ST A TE OF MAHARASHTRA 
JANUARY 8, 2007 
[DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] 
B 
Penal Code, 1860 : 
_, 
S. 300, Exception 4, and s.304(part-l)-Sudden quarrel-Accused 
giving single axe blow on head of his opponent-Victim succumbing to c 
injury-Held, assault undisputedly given in course of sudden quarrel, 
without pre-meditation and without accused taking any undue advantage-
Conviction altered to one under s.304 (part-1)-Custodial sentence of JO 
years would suffice. 
Appellant did his two sons were prosecuted for an offence punishable 
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under s. 302/34 IPC. The prosecution case was that the victim along with 
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his wife and two sons was living in a hut on the bank of river Godavari and 
.... 
was growing watermelong in the alluvial land which the accused claimed 
to be theirs. They had been objecting to the victim and his family members 
encroaching on the said land. On the fateful day when the victim was taking 
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his cattle towards the well through the fields of the accused, the appellant 
with an axe in his hand along with his two sons having swords in their 
hands reached there. The two sons caught hold of the victim and the father, 
the appellant, inflicted an axe blow on his head. T~e incident was witnessed 
by victim's wife (PW-9) and son (PW-5) who were at some distance. Before 
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they reached the spot the accused had run away. The other son of the victim 
(PW-6) who was coming towards the field saw the accused running away. 
PW-5 took the victim to the doctor who declared him as brought dead. The 
trial court convicted all the three accused under s. 302/34 IPC and 
sentenced each of them to imprisonment for life. The High Court, in appeal, 
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held that the evidence of the so-called eye witnesses was exaggerated and 
did not depict the correct position of the factual scenario, in that the role 
of the two sons of the appellant was not established. The High Court 
... 
accordingly acquitted the two sons, but affirmed the conviction and sentence 
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of the accused-father. 
H 
217 
A 
B 
218 
SUPREME COURT REPORTS 
[2007] 1 S.C.R 
In the instant appeal filed by the convicted accused, his counsel 
reiterated the submissions made before the High Court that the deceased 
had encroached on his land and did not stop inspsite of being told repeatedly; 
and that the occurrence took place during a sudden quarrel without pre-
meditation and the accused gave only a single blow. 
Allowing the appeal in part, the Court 
HELD : 1.1. The help of Exception 4 to s. 300 IPC 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 
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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. 
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 
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unusual manner. The expression 'undue advantage' as used in the provision 
means 'unfair advantage'. [Para 9] [221-G-H, 222-A-C] 
Kikar Singh v. State of Rajasthan, AIR (1993) SC 2426, distinguished. 
Babula! Bhagwan Khandare and Anr. v. State of Maharashtra, [2005] 
10 sec 404, referred to. 
1.2. In the instant case, the assault undisputedly was given in the 
course of the sudden quarrel, without pre-meditation and without the 
accused taking any undue advantage. When the background facts are 
considered on the touchstone of a legal principle as set out above, the 
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inevitable conclusion is that the conviction needs to be altered to one under 
Section 304 Part I IPC instead of 302 IPC as was held by the trial court 
and the High Court. Custodial sentence oLlO years would suffice. 
[Paras 7 and 12) [221-B, 222-F-G] 
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 21 of 
2007 
From the Final Judgment and Order dated 30.1.2006 of the High Court 
of Judicature of Bombay, Bench at Aurangabad in Cr!. A. No. 197 /2003. 
San jay V. Kharde and Chandana Ramamurthi for the Appellant. 
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RAMKISHANS/OMADHAVSHELK.Ev. STATE[PASAYAT,J.] 219 
S.S. Shinde and V.N. Raghupathy for the Respondent. 
The Judgment of the Court was delivered by 
DR. ARIJIT PASAYAT, J. : Leave granted. 
2. Appellant along with two others faced trial for alleged commis

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