Holding

The High Court erred in accepting the plea of private defence; the incident was a sudden quarrel and free fight, so Exception 4 to Section 300 applies, leading to conviction of Dattu under Section 304 Part II and Tanaji under Section 304 Part I.

Summary

The case arose from a violent altercation in the village of Walkewadi where the deceased Krishna and his son Bajirao, accompanied by family members, went to the fields armed with axes and sticks. The appellants, Dattu Shamrao Valke and Tanaji Shamrao Valke, also armed with a double‑barrel gun, axes and sticks, attacked the group in a public lane, resulting in the deaths of Krishna and Bajirao. The trial court convicted all accused of murder under Section 302 read with Section 34, but the High Court altered the convictions, accepting the appellants' claim of private defence and convicting Dattu under Section 304 Part I and Tanaji under Section 302. On appeal, the Supreme Court held that the High Court wrongly accepted the plea of private defence because the incident was a sudden quarrel and free fight, not a pre‑meditated attack, and therefore Exception 4 to Section 300 applied. Consequently, Dattu was convicted under Section 304 Part II (knowledge of likely death but no intention) and Tanaji under Section 304 Part I (intention to cause fatal injury). The Court partially allowed the appeal, modifying the High Court’s judgment and setting appropriate sentences.

Issues considered

The applicability of the right of private defence under Sections 96‑99 IPC to the appellants' actions
Whether the incident qualifies as a 'sudden quarrel and free fight' invoking Exception 4 to Section 300 IPC
The appropriate charge under Sections 304 Part I or Part II IPC based on the appellants' intent and knowledge
Whether the High Court erred in accepting the plea of private defence

Legislation cited

Arms Act, 1959s. 25(1)(b), s. 30
Code of Criminal Procedure, 1973s. 161, s. 313
Indian Penal Code, 1860s. 300, s. 302, s. 304(1), s. 304(2), s. 307, s. 324, s. 326, s. 96, s. 97, s. 98, s. 99

Subjects

private defenceself‑defencemurderculpable homicide not amounting to murdersudden quarrelException 4IPCArms Actappeal

Judgment

DATTU SHAMRAO VALKE AND ANR. A
v.
STATE OF MAHARASHTRA

APRIL 15, 2005

[P. VENKATARAMA REDDI AND P.P. NAOLEKAR, JJ.] B

-
1., j

Penal Code, 1860 :

Sections 96 to 99-Right of private defence-Deceased and family
including lady members on their way to the fields for weeding operation- C
Carrying axe, sticks which are ordinarily carried in villages while going to
fields-Fight ensued resulting in death of two-Plea of self defence by
accused-Held: Plea of self defence by the accused is wrongly accepted by
High Court as arrival of deceased at the place of occurrence cannot be said
to be for initiating fight against the accused. D
Section 300 Exception 4-Quarrel between accused and deceased-Two
per.sons died and accused also sustained serious injuries, which were not
.. explained by prosecution witnesses-No evidence to say with certainty as to
which party provoked the other and initiated the fight-Accused who had fire
arm also did not use it against deceased-Held: It is a case to apply Exception E
4 ofSection 300 as there was sudden quarrel andfreefight between the party
and attack was not pre-meditated affair.

Section 304 Part I-Accused gave axe blows to deceased on vital part
with an excessive force which resulted in his death-Held: He is to be convicted
under Part I of Section 304 because having regard to the gravity of the
injuries caused with a dangerous weapon, each one of which was fatal, the F
other accused must be imputed with the intention to cause such bodily injury
as was likely to cause death, if not the intention of causing death.

Section 304 Part ll-Accused had afire arm but did not shoot-However
he pic!'ked up axe from the spot and gave a blow on deceased aged 75 years-
Held: ls guilty under Section 304 Part J/ as the conduct and the manner in G
which he attacked an old person shows that by causing the injury with axe on
the neck of the deceased, he was having knowledge that the said act was likely
to cause death, ·but he had no intention to cause death or such bodily injury
as was likely to cause death.
635 H

)
636 SUPREME COURT REPORTS [2005] 3 S.C.R.

A According to prosecution, quarrel took place between the accused and
the deceased. Next day, the two deceased, Krishna and his son Bajirao along
with PW 10 and his brother and 2 ladies went to village Walkewadi for the
purpose of carrying on weeding operations in the land belonging to PW-6
who is daughter of deceased Krishna. They were armed with axe and sticks.
B When they came near the house of one Hindurao, which was close to the house '
of the accused, the accused armed with gun, axes and sticks attacked the I·
\
prosecution party. The accused No. I was having a double-barrel gun which
.....,,_
I
he fired in the air in the first instance. Accused No. 3 inflicted injuries with
;.'·?t
axe on the head and neck of Bajirao as a result of which he fell down and
later succumbed to the injuries. After Bajira" fell down, accused No. 1 took
C out the axe which Bajirao was having and then attacked Krishna and as a
result of the injuries caused to him, Krishna died the next day in the hospital.
Accused No. 2 is alleged to have given a stick blow on the head and the back
of PWIO. As regards accused No.4, it is alleged that he was about to attack
PWl with axe and when PWIO raised his right hand to ward off the attack,
the injury was caused to his index finger.
D
Sessions Judge convicted appellants and other accused under Section
302 read with Section 34 IPC. Appellants (accused no.I and no.3) and ~ccused
no.2 and 4 preferred appeal before the High Court. High Court convicted
appellant no.2 (accused no.3) under Section 302 IPC and appellants no.I •·
E (accused no.I) under Section 304 Part 1 IPC particularly after recording a
finding that the complainant's party were aggressor and appellants had
sufficiently discharged the burden cas't on the defence to prove their case of
the right of private defence; that persons from the party of the accused
including appellants sustained serious injuries including some of them of a
life threatening nature and the prosecution witnesses had failed to explain
F those injuries. fhe present appeal is filed by accused no.I and accused no.3. ----
Partly allowing the appeal, the Court
-.
HELD : 1. The view taken by the High Court. on the aspect of self-
defence is not a reasonably possible view. (643-DI
G
2. The evidence reveals that the incident did not happen within the
premises of the accused or even in front of It. The incident happened in the
lane In front of the house of one Hindurao. It may be that the place of c:
occurrence is not too far from the house of the accused but the fact remains
that the incident took place in a public street outside the houses of the accused.
H This finding of the trial Court based on thorough analysis of the evidence
DA TTU SHAMRAO VALKE v. STATE OF MAHA1l4SHTRA 63 7
has not been upset by the High Court. Yet, the High Court came to the A
conclusion that the members of the prosecution party were aggressors. There
is no evidence to show that PW10 was carrying the motor cycle chain. The
suggestion put to him was denied. PW9 denied having made the statement
that the deceased Krishna and his three sons were hurling abuses in loud tone
against the accused for the previous night's assault on AI. The High. Court B
made use of the statements under Section 161 Cr.P.C. to record its findings
on these two aspects. It may be that PW9 is an untruthful witness but the
omissions and contradictions cannot be treated as evidence of the alleged facts.
There is every possibility that the offensive article like cycle chain could have
been picked on the spot by a member of the prosecution party.
[644-C, G-H; 646-A-BI C
3. There is nothing unnatural or improbable in the version given by
PW6. The omission to spell out 'special reason' for requesting her parents
and brothers to help her in agricultural operations is no ground to disbelieve
her evidence, especially in view of the evidence on record that her kith and
kin from the parents' side were looking after some of her lands in view of the D
mental incapacity of her husband. Moreover, the fact that the lady members
of the family were accompanying them coupled with the fact that there were
only three able-bodied males in the prosecution party (Krishna being a very
old man) and the further fact that the weapons they were carrying (axe and
sticks) were such as are ordinarily carried in villages while going to fields, E
would probablize the fact that that their arrival in the village of Walkewadi
was for some reason other than initiating a fight against the accused. For the
aforesaid reasons, the plea of self-defence advanced by the accused is discarded
which has been accepted by the High Court without evidentiary basis and
without considering the clear finding of the trial Court in regard to the scene
of offence. (645-G-H; 646-A-BJ F
4. There was no explanation for the injuries received by the accused
and some others in the course of the same incident. In fact, the incident as
such has not been denied by either of the parties. It is not possible to say with
reasonable certainty as to which party provoked the other and how the fight
was initiated. In the circumstances, a reasonable inference based on a high G
degree of probability could be drawn that there was a sudden quarrel and
free fight between the parties. The attack by the appellants on the prosecution
party in the course of this tight cannot be said to be a premeditated affair. It
is not the prosecution case that the accused anticipated the arrival of the
prosecution party and they were lying in wait to cause harm to the deceased. H
638 SUPREME COURT REPORTS [2005] 3 S.C.R.

A Though Al had a fire arm, he did not use it against the deceased. He fired a
shot or two in the air. After that there is nothing to show that he tried to
reload and use it against the deceased. In fact initially only one accused was
having an axe. It is only later on that 'accused No.4 is alleged to have joined
the fight armed with an axe which is also indicative of the fact that there was
B no pre-concert amongst the accused to attack the members of the prosecution
party. Though he is alleged to have attacked PWto with an axe, no severe ·-,
injury was inflicted on PWto. Above all, the incident was ofa short duration
and the accused fled from the scene immediately after the fight. These events
could probablize the fact that there was no premeditation and the attack was
in the course of free fight. There is therefore a case to apply Exception 4 to
C Section 300 provided the ingredients of the last clause, that is to say, "without
the offender having taken undue advantage or acted in a cruel or unusual
manner" are satisfied. There is no difficulty in holding that the offenders have
not taken undue advantage of the situation. Both parties; who were armed,
engaged themselves in a fight and both inflicted injuries against the other.
(646-D-H; 647-AJ
D
5. A3 (2nd appellant), in spite of having an axe with him, had suffered
quite a severe injury viz., contusion of 8"x1" over chest which could have
been caused, according to the Doctor, by an object like cycle chain. It is not
possible to say at what stage A3 had received such injury. At any rate, there
E was no clarification bearing on this aspect from the prosecution side. The
deceased Bajirao was wielding an axe. The 2nd appellant, probably already
injured, might have become apprehensive that he would be attacked by
Bajirao with the axe. Though three injuries were noted, they are all on the
left parietal region causing the fracture of skull bone. Looking at the nature
of injuries, it is quite possible to say that all the injuries would have been
F caused by one or two axe blows, but not necessarily three. In fact, PW6 states
in the cross examination that she had seen one axe blow being given by accused
No.3 on the neck of Bajirao. No doubt he had used excessive force against
Bajirao by causing injury with the axe on a vital part, may be more than
once. However, taking an overall picture, it cannot be said beyond doubt that
G the 2nd appellant acted in a cruel or atrocious manner by attacking the
deceased with the axe once or twice. The 2nd appellant is entitled to the benefit ) .
of Exception No.4. At the same time, it would be appropriate to convict him ~

under Part I of Section 304 IPC because having regard to the gravity of the
injuries caused with a dangerous weapon, each one of which was fatal, the
2nd appellant must be imputed with the intention to cause such bodily injury
H as was likely to cause death, if not the intention of causing death. Accordingly
DA TTU SHAMRAO VALKE v. STATE OF MAHARASHTRA [REDDI, J.] 639

the 3rd accused (appellant No.2) is convicted under Section 304 Part I. A
(647-B-FJ
6. At, although having fire arm, did not shoot the deceased or any other
member of the prosecution party. Other than the gun, he was not having any
weapon in his hand. Instantaneously he picked up the axe that was in the
hands of the injured Bajirao and dealt a blow with that axe on the neck of B
the deceased Krishna. Though another injury was found on the left parietal
region, according to the Doctor PWS, it was injury No.I that was serious.
Krishna who, according to postmortem report, was aged about 75 years,
succumbed to the injury the following day. It is reasonable to infer, from the
conduct of the 1st appellant and the manner of attack on an old person, that
appellant No.I, by causing the injury with axe on the neck of the deceased C
Krishna, was having knowledge that the said act was likely to cause death;
but, he had no intention to caase death or such bodily injury as was likely to
cause death. Therefore he is guilty under Section 304 Part II.
(647-G-H; 648-A-BJ
D
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 615
of 2004.

From the Judgment and Order dated 24.3.2004 of the Bombay High
Court in Crl.A. No. 564 of 1987.

Shekhar Nafde, Himanshu Gupta, Brijkishore Sah and Shivaji M. Jadhav E
with him for the Appellants.

Ravindra Keshavrao Adsure for the Respondent.

The Judgment of the Court was delivered by

P. VENKATARAMA REDDI, J. Four persons including the two p
appellants herein faced the charges under Sections 302/34, 307/34 and Section
326 IPC and also under Section 25(l)(b) and Section 30 of the Anns Act for
the fatal assault with deadly weapons on the two deceased persons namely
Bajirao and Krishna (also referred to as 'Kishan' by some witnesses) on the
forenoon of 18.8.1984 in the village of Walkewadi. On trial, the Additional G
Sessions Judge, Kolhapur convicted accused Nos. l to 4 under Section 302
read with Section 34. Accused Nos. l & 2 were alternatively convicted under
Section 302 IPC individually. Accused Nos. l & 2 were also convicted for
the offence under Section 25( 1)(b) and Section 30 of the Arms Act respectively.
A4 was also convicted under Section 324 IPC. Accused Nos. 1 to 4 were,
however, acquitted of the offence under Section· 307 IPC. All the accused H
640 SUPREME COURT REPORTS [2005] 3 S.C.R.

A were sentenced to life imprisonment.
On appeal, the High Court acquitted the accused Nos. I to 4 for the
offences under Section 302 read with Section 34 and the High Court convicted
the appellant No.2 (A-3) Tanaji Shamrao Valake under Section 302 IPC and
the appellant No.l{A-l)Dattu Shamrao Valake under Section 304 Part I IPC
B and sentenced them to life imprisonment and rigorous imprisonment for a
period of 10 years respectively. The conviction of accused No. I (appellant
NoJ) under Section 25{l)(a) of the Arms Act was maintained. The fourth
accu~ed's conviction Under Section 324 was upheld. Aggrieved by their
conviction and sentence, the two appellants who are accused Nos. I and 3
C have fjled the present appeal against the judgment of the High Court of
Bombay.

The case of the prosecution is as follows :-

The deceased and the accused belonged to nearby villages, namely
D Varakatwadi and Walkewadi respectively. There was a quarrel on the
intervening night of 18th/ 19th of August, 1984 in connection with the grazing
of cattle of accused No. I on the pasture land situate at the adjacent village
Awali said to be in the possession of the deceased and his sons. In the course
of scuffle, it is alleged that the accused No. I was assaulted by Ananda, the
brother of PWIO with a stick. PWIO drove awaythe cattle. On the very next
E day at about 10 a.m. the two deceased persons, namely Krishna and his son
Bajirao along with PWIO and his brother Ananda and the ladies (Suseela-
PW7 and Kamal-PW8) went to the village Walkewadi for the purpose of
carrying on weeding operations in the land belonging to PW6-Akkatai who.
is the daughter of the deceased Krishna and the sister of deceased Bajirao.
F They were armed with axe and sticks. When they came neart~e house of one
Hindurao Valake, which is close to the house of the accused, the accused
armed with gun, axes and sticks attacked the prosecution party. The accused
· No. I was having. a double-barrel gun which he fired in the air in the first
instance. When he was aiming the gun at Ananda, his brother (PWIO) gave
a hit on the gun with a stick under the impact of which the gun fell down and
G there was accidental shot which, however, did not injure anybody. Then,
ac~used No.3 inflicted injuries with axe on the head and neck of Bajirao as
a result of which he fell down and succumbed to the injuries after a gap of
about a month. It is alleged that after Bajirao fell down, the second appellant
i.e. accused No. I took out the axe which Bajirao was having and then attacked
H Krishna and as a result of the injuries caused to him, Krishna died the next
DATTU SHAMRAO VALKE v. STATE OF MAHARASHTRA [REDDI, J.] 641

day in the hospital. Accused No.2 is alleged to have giv~n a stick blow on A
the head and the back of PWlO. As regards accused No.4, it is alleged that
he was about to attack PWl with axe and when PWlO raised his right hand
to ward off the attack, the injury was caused to his index finger.

There were three head injuries on the deceased Bajirao which are
attributed to the attack by accused No.3. These injuries were inflicted on the B
left parietal region causing the fracture of skull bone and the brain matter
protruding out. The deceased Krishna had two injuriesone incised wound on
the nape of neck 4" x 2" x I W', spine deep exposing the bleeding spine and
the second incised wound was on the left parietal region,. scalp deep. The first
wound, according to the opinion of the Medical Officer, was the fatal wound. C
The accused too did suffer injuries as noted by the High Court in
paragraph 9. The details of such injuries are as follows:

(I) Accused No. 2 - Shamrao, had suffered incised wound obliquely
on the right parietal region of his head, 2" x Y.", contusion l" x D
l" over left wrist and multiple abrasion over the right scapula
region.
(2) Accused No. I - Dattu Shamrao, had suffered contusion over left
·~ forearm, 2"x I" reddish in colour.

(3) Accused No. 3 - Tanaji had suffered contusion 8"x I" over chest E
from mid sternum extending obliquely to left anterior axillary
line (which injury according to the Doctor could be caused by the
motor cycle chain) and two other contusions over left deltoid
region (2 "x l ") and left inguinal region (3 "x l ").

Four others (other than the accused) were also injured. F
PW12-Head Constable of Lakshmipuri police station was on duty in
CPR hospital, Kolhapur on the date of the incident. Having come to know
that three injured persons were admitted in the hospital, at about 3.00 p.m.,
he went and saw the patients namely Krishna, Bajirao and Sambaji in the
ward and he recorded the statement of Sambaji-PW I 0 who was able to G
speak. The first information based on the said statement was recorded and the
case was transferred to Kodoli police station which had jurisdiction over the
place of offence. Initially some investigation was done by the Head Constable
of Kodoli P.S.-PW14 who went to the village and drew up the panchnama
of the scene of occurrence. PWI 7-the Sub-Inspector incharge of Kodoli H
642 SUPREME COURT REPORTS [2005] 3 S.C.R.

A police station, continued the investigation from 20.8.1984 onwards. He seized
the gun and axe from the houses of the accused and recorded the statements·
of the witnesses and after investigation filed charge-sheet on 31.12.1984.
While so, on the date of the incident itself, the second accused Shamrao
lodged a complaint with Kodoli police station alleging that he and other
accused were assaulted by the two deceased PWI 0 and his brother with axes,
B sticks and cycle chain. After investigation by PW l 7, a charge-sheet was
filed implicating PWlO and his brother Ananda for the offence under Section
307 IPC. That case was also tried along with the present case and by the
judgment of the same date, the learned Sessions Judge acquitted them of the

c
charges.

At the time of examination under Section 313 Cr.P.C., the appellants
...
filed a written statement in which they took the plea of private defence.
While admitting the. incident, they stated that the deceased Krishna and his
three sons entered the house of the accused armed with axe, cycle chain and
stick and one of them (Ananda) assaulted Tanaji-A3 with the cycle chain
D as a result of which he fell down and became unconscious. Then the
prosecution party started beating the other accused. Accused No. I therefore
went inside and brought a gun and fired two shots in the air with the idea of
scaring them away. However, the prosecution party continued to beat the
accused and cause injuries to them. The names of seven persons including
E the three accused were mentioned as the recipients of injuries. They denied
the presence of lady witnesses-PWs 6, 7 and 8 at the scene of occurrence.
They referred to the complaint filed by them against the prosecution party.

The High. Court was of the view that the evidence on record probablised
the plea of private. defence taken by the accused. The High Court found
F substance in the contention of the accused that the deceased and their associates
were the aggressors. At the same time, as far as the third accused-second
appellant is concerned, the High Court felt that there was really no justification
for causing three injuries with a deadly weapon because by the time he
mounted the attack, the threat from the side of the deceased and his companions
had abated and moreover, by the very first injury, the deceased would have
G been incapacitated. The High Court was therefore of the view that A3 intended
to cause more harm than was necessary for the purpose of self defence. The
High Court therefore convicted the second appellant (A3) for the offence
under· Section 302 IPC for his individual act of fatally attacking Bajirao. As
regards t~e 1st appellant, the High Court gave the benefit of Exception 3 tO
H Section 300 and convicted him for the offence under Section 304 Part I and
DATTU SHAMRAO VALKE v. STA TE OF MAHARASHTRA [REDD!, J.) 643

sentenced him to ten years rigorous imprisonment. ·A
Accused Nos. 2 and 4 were acquitted by the High Court on the ground
that they did not play active part, that the injury alleged to have been caused
by accused No.2 was not proved by medical evidence and that accused No.4
arrived at the scene of offence much later as per the version in the FIR. In
spite of the finding that the right of priv11te defence was available to the B
accused and that the accused No.4 entered the scene later on, curiously the
High Court upheld his conviction under Section 324 for causing the injury
to PWIO. However, that is not the subject matter of the present appeal.

There were five eye-witnesses to the offence. The first one is PW6-
Akkatai (daughter of the deceased Krishna) whose name was referred to in C
the F.l.R. itself. The other eye-witnesses are PW7~aughter-in-law of the
deceased Krishna, PWlO-his son, PWS-the wife of deceased Bajirao and
PW9-one Shivaram. None of them explained as to how the accused received
injuries. The trial Court expressed doubt regarding the presence of PWS.
D
In our view, the view taken by the High Court on the aspect of self-
defence is not a reasonably possible view. We do not think that the evidence
on record justifies the inference that the appellants acted in self-defence.
Three reasons weighed with the High Court in giving credence to the plea of
private defence. The following passage at para l 0 of the judgment summarizes
these reasons. E
" .. .In our view, the material mentioned above thus lends support to
the defence contention that the complainants party had also come
armed with the weapons such as axe, motor cycle chain and sticks.
Material further indicates that the complainants party were also abusing
the accused persons. The aforesaid facts coupled with the fact that F
three of the accused alongwith four other from their party did in fact
suffer injuries, which are not explained by the prosecution witnesses
in our view, indicates that the complainants party had come prepared
for aggression and did commit overt acts against the accused and
others ....... "
G
Then, the High Court examined the overt acts committed by the
appellants and held that the appellant No.2-Tanaji intended to cause more
harm than necessary for the purpose of self-defence and therefore the Exception
3 cannot come into play in his case. However, the Exception was applied to
the case of first appellant and he was convicted under Section 304 Part I. On H
644 SUPREME COURT REPORTS [2005) 3 S.C.R.

A a scrutiny of the evidence on record and the clear finding of the trial court
in regard to the scene of offence, we are of the view that the High Court was
not justified in reaching the conclusion that the accused had the right of
private defence against the deceased and their companions who, according to
the High Court, were the aggressors. In this context, we remind ourselves of
the case set up by the accused in their police report and in their written
B statement in response to Section 313 examination according to which the
deceased Krishna and his three sons entered the house of the accused armed
with axe etc., challenged the accused to come out and attacked one of them
(2nd appellant) with cycle chain and at that juncture Al brought gun and
fired in the air. Yet, according to the accused, the attack continued. However,
C this version cannot be true as the evidence unmistakably reveals that the
incident did not happen within the premises of the accused or even in front
Of it. The incident happened in the lane in front of the house of one Hindurao
Walake. It may be that the place of occurrence is not too far from the house
of the accused but the fact remains that the incident took place in a public
street outside the houses of the accused. The houses of the accused are
D towards the east of the place of offence separated by two or three houses. The
trial Court discussed this aspect in detail. The learned Sessions Judge referred
to the map (Ext. 53), the scene of offence (Ext. 21), the evidence of panch
witness-Vasant Sawant (Ext. 20), the lack of blood-stains at the alleged
place of incident pointed out by Tutala Bai-the wife of A2 to the I.O., the
E presence of blood.on the earth recovered from the actual spot and the evidence
of 1.0. The trial Court concluded as follows :

"Thus it is clear that as the place of offence is near the house of
· Hindurao Walake~ it falsifies the version of the accused that the incide.nt
took place in front of their house as contended by them in their
F written statement under Section 313 Cr.P.C."

It was also observed :

"The version given by 'the prosecution and the complainant that on
the date of incident at about IO a.m. they were going to the land of
G Mali (owned by Akkatai) appears to be most natural and probable".

This finding of the trial Court based on thorough analysis of the evidence
has not been upset by the High Court. Yet, the High Court came to the
cohclusion that the members of the prosecution party were aggressors. At
least, two reasons that were taken into account by the High Court in reaching
H the conclusion cannot be sustained. There is no evidence to show that PWIO
DATIU SHAMRAO VALKE v. STATE OF MAHARASHTRA [REDD!, J.) 645
was carrying the motor cycle chain. The suggestion put to him was denied. A
PW9 denied having made the statement before the police that PW I 0 was
carrying cycle chain and the axe. So also he denied having made the statement
that the deceased Krishna and his three sons were hurling abuses in loud tone
against the accused for the previous night's assault on Al. The High Court
made use of the statements under Section 161 Cr.P.C. to record its findings B
on these two aspects. It may be that PW9 is an untruthful witness but the
omissions and contradictions cannot be treated as evidence of the alleged
facts. There is every possibility that the offensive article like cycle chain
could have been picked upon the spot by a member of the prosecution party.

As regards the injuries on the accused, we shall advert to that aspect a C
little later.

The learned counsel for the appellant tried to supplement the reasons
given by the High Court by contending that in the background of the previous
night's incident, the prosecution party would have thought of retaliation, as
otherwise there was no acceptable reason for the deceased and their family D
members coming to the village of the accused on the very next day. It is
commented that the explanation of PW6-Akkatai that they came to the
village in order to attend to weeding operations in her lands is highly
improbable. Attention is drawn to her statement that there was no 'special
reason' for requesting her parents to attend to the work on her fields. We find
it difficult to accept this contention. We have already extracted the finding E
of the trial Court and we agree with the trial Court that there is nothing
unnatural or improbable in the version given by PW6. Too much cannot be
read into the statement of PW6 that there was no 'special reason'. The omission
to spell out 'special reason' for requesting her parents and brothers to help
her in agricultural operations is no ground to disbelieve her evidence, especially F
in view of the evidence on record that her kith and kin from the parents' side
were looking after some of her lands in view of the mental incapacity of her
husband. Moreover, the fact that the lady members of the family were
accompanying them coupled with the fact that there were only three able-
bodied males in the prosecution party (Krishna being a very old man) and the
further fact that the weapons they were carrying (axe and sticks) were such G
as are ordinarily carried in villages while going to fields, would probablize
the fact that that their arrival in the village of Walkewadi was for some
reason other than initiating a fight against the accused. The learned counsel
for the appellant repeatedly stressed that the incident was only of a short
duration-2 or 3 minutes according to PW8. But it has no bearing on the H
646 SUPREME COURT REPORTS [2005] 3 S.C.R.

A question whether the members of the prosecution party were the aggressors.
For the aforesaid reasons, we discard the plea of self-defence advanced
by the accused which has been accepted by the High Court without evidentiary
basis and without considering the clear finding of the trial Court in regard to
the scene of offence. The High Court's finding on the aspect of private
B defence almost borders on perversity and cannot be sustained.

What remains is the fact that the injuries were caused to some of the
accused which remained unexplained. Whereas the accused No. I received a
minor injury viz., contusion over left fore arm 2"xl ",the injuries received by
accused Nos. 2 and 3, though simple, are fairly severe. Accused No.2 had
C received an axe injury and accused No.3 had received an injury with some
other dangerous object such as cycle chain. One person by name Sadashiv
suffered a lacerated wound over occipital region, scalp deep with a fracture
of skull. According to the appellants, he was their associate. He was examined
by the Medical Officer-PW5. There was no explanation for these injuries
D received by the accused and some others in the course of the same incident.
In fact, the incident as such has not been denied by either of the parties. It
is not possible to say with reasonable certainty as to which party provoked
the other and how the fight was initiated. In the circumstances, a reasonable
inference based on a high degree of probability could be drawn that there
was a sudden quarrel and free fight between the parties. The attack by the
E ;;tppellants on the prosecution party in the course of this· fight cannot be said
to be a premeditated affair. It is not the prosecution case that the accused
anticipated the arrival of the prosecution .party and they were lying in wait
to cause harm to the deceased. Though A 1 had a fire arm, he did not use it
against the deceased. He fired a shot or two in the air. After that there is
F nothing to show that he tried to reload and use it against the deceased. In fact
initially only one accused was having an axe. It is only later on that the
accused No.4 i~ alleged to have joined the fight armed with an axe which is
also indicative of the fact that there was no pre-concert amongst the accused
to attack the members of the prosecution party. Though he is alleged to have
attacked PWIO with an axe, no severe injury was inflicted on· PWIO. Above
G all, the incident was of a short duration and the accused fled from the scene
immediately after the fight. These events could probablize the fact that there
was no premeditation and the attack was in the course of free fight. There is
therefore a case to apply Exception 4 to Section 300 provided the ingredients
of the last clause, that is to say, "without the offender having taken undue
H advantage or acted in a cruel or unusual manner" are satisfied. There is no
DA TTU SHAM RAO VALKE v. ST ATE OF MAHARASHTRA [REDD!, J.] 64 7

difficulty in holding that the offenders have not taken undue advantage of the A
situation. Both parties, who were armed, engaged themselves in a fight and
both inflicted injuries against the other.

The only doubt that arises is whether A3, in causing three axe injuries
to the deceased Bajirao, acted in a cruel manner? In examining this point, we
have to take note of the fact that A3 (2nd appellant), in spite of having an B
axe with him, had suffered quite a severe injury viz., contusion of 8"xl" over
chest which could have been caused, according to the Doctor, by an object
like cycle chain. It is not possible to say at what stage A3 had received such
injury. At any rate, there was no clarification bearing on this aspect from the
prosecution side. The deceased Bajirao was wielding an axe. The 2nd appellant, C
probably already injured, might have become apprehensive that he would be
attacked by Bajirao with the axe. Though three injuries were noted, they are
all on the left parietal region causing the fracture of skull bone. Looking at
the na!ure of injuries, it is quite possible to say that all the injuries would
have been caused by one or two axe blows, but not necessarily three. In fact,
PW6 states in cross examination that she had seen one axe blow being given D
by accused No.3 on the neck of Bajirao. No doubt he had used excessive
force against Bajirao by causing injury with the axe on a vital part, may be

-- more than once. However, taking an overall picture, we cannot say beyond
doubt that the 2nd appellant acted in a cruel or atrocious manner by attacking
the deceased with the axe once or twice. We are therefore not inclined to
deprive the 2nd appellant of the benefit of Exception No.4. At the same time,
E
vie are of the view that it would be appropriate to convict him under Part I
of Section 304 IPC because having regard to the gravity of the injuries
caused with a dangerous weapon, each one of which was fatal, the 2nd
appellant must be imputed with the intention to cause such bodily injury as

• was likely to cause death, if not the intention of causing death. Accordingly
we convict the 3rd accused-appellant No.2 under Section 304 Part I and we
F

are of the view that in the circumstances, a sentence of eight years R.I. and
fine of Rs. l ,000 would be sufficient. In default of payment of fine, appellant
No.2 will suffer imprisonment for four months.
I°!
The case of the accused No.1-lst appellant, undoubtedly falls under '-'
Section 304 Part·JI. As noticed supra, Al, althQugh having fire ann, did not
shoot the deceased or any other member of the prosecution party. Other than
the gun, he was not having any weapon in his hand. Instantaneously he
picked up the axe that was in the hands of the injured-Bajirao and dealt a
blow with that axe on the neck of the deceased Krishna. Though another H
648 SUPREME COURT REPORTS [2005] 3 S.C.R.

A injury was found on the left parietal region, according to the Doctor-PW5,
it was injury No. I that was serious. Krishna who, according to postmortem
report, was aged about 75 years, succumbed to the injury the following day.
It is reasonable to infer, from the conduct of the I st appellant and the manner
of attack on an old person, that the appellant No. I, by causing the injury with
B axe on the neck of the deceased Krishna, was having knowledge that the said
act was likely to cause death; but, he had no intention to cause death or such
bodily injury as was likely to cause death. We therefore find the 1st appellant-
A I guilty under Section 304 Part II. As regards sentence, we feel that having
regard to the facts and circumstances of the case, five years of imprisonment
and fine ofRs.l,000 will be adequate and proper. Accordingly, he is.convicted
C and sentenced. In default of payment of fine, he will suffer further
imprisonment of four months. The appellants will of course be given the
benefit of set off of the period of detention already undergone.

Accordingly, the judgment of the High Court is modified and the appeal
is partly allowed.
D
D.G. Appeal partly allowed.

--
/