MURLIDHAR SHIVRAM PATEKAR & ANR.versusSTATE OF MAHARASHTRA

                      [2014] 12 S.C.R. 134

A           MURLIDHAR SHIVRAM PATEKAR & ANR.
                                v.
                   STATE OF MAHARASHTRA
                (Criminal Appeal No. 111 of 2008)
                     SEPTEMBER 25, 2014
B
         [DIPAK MISRA AND V. GOPALA GOWDA, JJ.]

        Penal Code, 1860 - s. 304 Part II, s. 300 Exception 4 -
  Murder - Scuffle between accused-husband and wife and the
C deceased, resulting in the death of the victim - Complainant
  and others witness to the incident - Conviction and sentence
  u/s. 302 - Accused pleading provocation on the part of the
  deceased and lack of evidence, however, order passed by
  trial court upheld by High Court - On appeal, held: Death of
D the victim was homicidal in the light of the evidence produced
  by prosecution witnesses - There was no premeditation on
  the part of the accused and the scuffle took place due to
  sudden provocation on the part of the deceased - Thus,
  accused entitled to the benefit of s. 300 Exception 4 -
E Conviction of the accused modified to s.304 Part II- Sentence
  of imprisonment for 1O years would meet the ends of justice.

       Disposing of the appeal, the Court

       HELD: 1.1. The medical evidence acts as a check
F upon the testimony of eye witnesses and also as
  independent evidence in so far as it establishes facts,
  example, nature and grievousness of the injuries suffered
  by the deceased. Therefore, the findings of PW-5, post
  mortem doctor clearly supports the findings recorded by
G the trial court that the death of the victim was homicidal
  on account of the injuries sustained by him by means of
  a sharp weapon like knife. [Para 11] [143-F, G]

       1.2. The testimony of PW-2, eye witness is fully
H                              134
   MURLIDHAR SHIVRAM PATEKAR v. STATE OF                 135
              MAHARASHTRA

corroborated with the testimony of PW-3, which was               A
further corroborated by the testimony of PW-4, who had
also stated the same version as deposed by PW-2 and
PW-3. Thus, the evidence on record led by the
prosecution eyewitnesses is sufficient to show that the
accused nos. 1 and 2 are the persons, who caused                 B
injuries on the vital parts of the body of the deceased.
 [Para 12,13] [144-G, H; 145-A]

    1.3. The fact that all the witnesses saw the incidence
of scuffle is not disputed; however, they entered the            C
scene only after they heard the shout of the victim. What
transpired prior to that, between the accused and the
deceased has not been corroborated by anyone save the
accused no. 2. However, none of the witnesses stated
anywhere that the knife belonged to the accused no.1,
th0refore, the question that who had actually possessed          D
the knife first is still unknown. [Para 14] [145-C-E]
     1.4. The submission made by the prosecution that the
delay in lodging the complaint or revealing the same to
the Sarpanch was premeditated on the part of the                 E
accused cannot be accepted on the fact and
circumstances of the case. There was no premeditation
on the part of the accused and the scuffle took place due
to sudden provocation on the part of the deceased. This
was further corroborated by the fact that the accused            F
themselves reached the police station and lodged a
complaint against the deceased and confessed to the
scuffle, thereby submitting the knife (the murder weapon)
at the police station. [Para 18] [147-A-E]

     1.5. If· there is intent and knowledge then the same        G
would be a case of s. 304 Part I and if it is only a case of
knowledge and not intention to cause murder and bodily
injury then the same would fall u/s. 304 Part II. In the facts
and circumstances of the instant case, it cannot be said
                                                                 H
    136      SUPREME COURT REPORTS            [2014] 12 S.C.R.


A that the appellants/accused had any intention of causing
  the death of the deceased when they committed the act
  in question. The incident took place out of grave and
  sudden provocation and hence, the accused are entitled
  to the benefit of s. 300 Exception 4 IPC. Thus, the act of
B the accused-appellants was not a cruel act and the
  accused did not take undue advantage of the deceased.
  The scuffle took place in the heat of passion and all the
  requirements u/s. 300 Exception 4, IPC have been
  satisfied. Therefore, the benefit of Exception 4 u/s.300,
c IPC, is attracted to the fact situation and both the
  appellants are equally entitled to this benefit. The
  appropriate conviction of the appellants would be u/s.304
  Part II IPC instead of s. 302 IPC. Hence, the sentence of
  imprisonment for 10 years would meet the ends of justice.
D [Para 19] [150-A-G]
       Surinder Kumar v. Union Territory of Chandigarh 1989
  (1) SCR 941: (1989) 2 SCC 217; Arumugam v. State 2008
  (14) SCR 309 (2008) 15 SCC 590; Satish Narayan Sawant
  v. State of Goa 2009 (14) SCR 464:(2009)17) SCC 724 -
E referred to.

         Black's Law Dictionary, Abridged 6th Edn.1991 at p.819
    - referred to.
                        Case Law Reference:
F
          1989 (1) SCR 941      Referred to       Para 9, 19
          2008 (14) SCR 309     Referred to       Para 19
          2009 (14)SCR 464      Referred to       Para 19
G       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1'11 of 2008.

      From the Judgment & Order dated 20.01.2004 of the Higl"\
  Court of Judicature at Bombay Bench at Aurangabad in
H Criminal Appeal No. 255 of 1999.
     MURLIDHAR SHIVRAM PATEKAR v. STATE OF                    137
                MAHARASHTRA

     Bhaskar Y. Kulkarni for the Appellants.                         A

     Asha Gopalan Nair, Aniruddha P. Mayee for the
 Respondent.

     The Judgment of the Court was delivered by
                                                                     B
       V. GOPALA GOWDA, J. 1. This appeal is filed by the
  appellants against the judgment and order dated 20.01.2004
  passed in Criminal Appeal No. 255 of 1999 by the High Court
  of Judicature at Bombay, Bench at Aurangabad, whereby the
  High Court upheld the Trial Court's decision of convicting the C
  appellants under Section 302 of the Indian Penal Code (in short
  IPC) on the charge of murder of one Asaram and sentencing
  them to life imprisonment along with a fine of Rs.1,000/- and
  in default of payment of fine. to undergo further simple·
  imprisonment for one year. The present appeal is filed by the      o
· appellants praying to set aside the impugned judgment and
  order of the High Court, urging various grounds.

     2. The necessary relevant facts are briefly stated
 hereunder:
                                                                     E
      The accused-appellant Nos. 1 and 2 are husband and wife
 respectively, who are the residents of Village Motigavan in
 Jalgaon District in Maharashtra. They have been charged with
 the murder of one Asaram, as a result of a scuffle that took
 place between the accused and the deceased. An FIR was              F
 originally lodged by Madhav Gore, the complainant, who had
 witnessed the incident. Initially, the crime was registered under
 Section 307 read with Section 34 of IPC. However, after the
 death of Asaram, the crime was registered under Section 302
 read with Section 34 of IPC. The Trial Court found both the         G
 accused guilty of the offence of murder and sentenced them to
 suffer life imprisonment.

      3. Aggrieved by the judgment and order of the Trial Court,
 the appellants filed an appeal before the l;ligh Court of Bombay,   H
    138      SUPREME COURT REPORTS                 [2014) 12 S.C.R.


A   pleading provocation on the part of the deceased and lack of
    evidence and prayed for reversal of the conviction and
    sentence. The High Court dismissed the appeal and upheld the
    verdict of the Trial Court. Hence, the present appeal.

       4. It has been contended by the learned counsel on behalf
8
  of the appellants that on 27 .08.1993 at about 6.00 p.m. when
  it was raining, Asa ram entered the house of the appellants and
  raped appellant No.2, in-tile absence of her husband-appellant
  No. 1 and children. On 28.08.1993, when the accused/
C appellants were proceeding to report the incident at the police
  station, Asaram allegedly tried to prevent them from doing the
  same and as a result a scuffle broke between the accused No.1
  and the deceased-Asaram. In the scuffle, the wife, accused/
  appellant No. 2 noticed that Asaram had over-powered her
  husband-appellant No.1, she therefore caught hold of the
D genitals of Asaram and tried to rescue appellant No.1.
  Thereafter, Asaram took out a knife from his pocket and made
  an attempt to stab appellant No.1. It is further contended by the
  learned counsel, that the deceased-Asaram during the course
  of the scuffle, fell on the knife, thus causing injuries to himself.
E The accused No.1 removed the knife and proceeded towards
  the police station where he produced the knife before the P.S.I.
  Andhale (P.W.8) and also lodged an F.l.R ag_ainst the
  deceased-Asaram for committing rape on his wife-appellant
  No. 2 under Section 376 of the IPC.                  ·
F
       5. In justification of failure to lodge a complaint on the very
  same day, it is contended by the learned counsel on behalf of
  the accused-appellants that it was raining heavily on the date
  of occurrence of the crime; therefore, they could not approach
G any villagers or the police station.

      6. On the other hand, it has been contended by the
  prosecution that the accused-appellant No.2, noticing that the
  deceased Asaram had over powered the accused-appellant
  No.1, caught hold of his genitals and facilitated accused-
H appellant No. 1 to gfve blows with knife. The incidence was
   MURLIDHAR SHIVRAM PATEKAR v. STATE OF                    139
     MAHARASHTRA [V. GOPALA GOWDA, J.]
witnessed originally by the complainant, Madhav Gore who           A
died during the pendency of the trial as well as Kishan Mohite
(PW-2), Pandurang (PW-3) and Prahlad Mohite (PW-4). The
deceased was taken to the hospital at Jalna in a tractor. A
seizure Panchanama was made. The Head-Constable Babula
Labhange (PW-7), while proceeding towards the said village         B
met the injured and recorded his dying declaration at about
10.45 a.m. on the same day. The doctor at Jalna hospital
directed that the deceased be taken to the Government Medical
College Hospital at Aurangabad as he was in serious condition.
The deceased was therefore, brought by the police to the Ghati     c
Hospital at Aurangabad, where, the doctor on examination of
the injured, declared him dead.

     It is further contended by the prosecution that Madhav, the
complainant filed his complaint which came to be registered
as F.l.R for an offence punishable under Section 307 read with     D
Section 34 of IPC, which after the death of the deceased
Asaram was converted to Section 302 read with Section 34
of the IPC. The blood stained clothes of the deceased were
sent for chemical analysis along with the weapon (knife) and
the blood samples of the accused and the deceased. The body        E
was sent for post mortem to Dr. Anil Digambarrao Jinturkar
(PW-5) on 28.08.1993. The accused came to be arrested on
the very same day and charge-sheet was filed on completion
of the investigation.
                                                                   F
     7. The Judicial Magistrate, 1ST Class committed the case
to the Sessions Court at Jalna on 19.02.1994. Charges were
framed against both the accused under Section 302 read with
Section 34 of the IPC, which the accused consequently denied
and claimed to be tried. In addition to 3 eye witnesses, panch     G
witness-Fakir Mohite PW-1, was examined to prove spot
punchnama.

    8. Dr. Anil Jinturkar (PW-5), in his disposition has stated
before the Trial Court that the injuries had been caused within
                                                                   H
    140       SUPREME COURT REPORTS              (2014) 12 S.C.R.


A 6 to 12 hours before the post mortem and in his cross
   examination, he specifically denied the suggestion that injuries
   1 and 2 were possible my means of fall over the knife or during
   the scuffle. It was contended that this evidence clearly supports
   the findings recorded by the Trial Court that Asaram died
B homicidal death on account of the injuries sustained by him by
 . means of a sharp weapon like a knife. The cause of death as
   described by the doctor was hemorrhagic shock due to stab
   injury over the chest and abdomen involving liver and lung.

       It is further contended by the prosecution that during the
C cross examination of PW-3, he has stated that there was-no
  rain during the night of the incident (alleged rape). He also
  denied that Asaram had taken out the knife and assaulted the
  accused no.1. The evidence of PW-4 and PW-5 further
  supported the description of the incident as narrated by PW-
D 3.

       9. Further, as contended by the prosecution that the High
  Court has rightly held that the defence plea raised by the
  accused no.1 has been falsified by the ocular evidence of PW-
E 2, PW-3 and PW-4. The evidence of the three eyewitnesses
  is not impaired in any manner and the accused no.2 had
  contradicted her statement made in the complaint. The
  accused-appellant No. 2 by holding the genitals of the
  deceased had virtually disarmed him, giving accused-appellant
F No. 1 the opportunity to catch hold of his collar and inflict him
  with blows with the knife. Hence, it was a premeditated act to
  attack the deceased. The High Court has further held that the
  requirements in the Exception 4 of Section 300 IPC are not
  attracted in the present case as held by this Court in the case
  of Surinder Kumar v. Union Territory of Chandigarh'. The
G High Court further held that the common intention of the accused
  was shared and developed by them right in their house. The
  possession of the deadly weapon by accused no. 1 and the


H   1.   (1989) 2 sec 211.
   MURLIDHAR SHIYRAM PATEKAR v. STATE OF                    141
    MAHARASHTRA [V. GOPALA GOWDA, J.]
injuries inflicted on the deceased that were caused on his vital   A
parts were attributed to accused no.1.

     10. On the basis of the aforesaid rival legal contentions,
evidence of the prosecution witnesses on record and the
reasoning taken by the courts below, the following points would    B
arise for consideration of this Court:

    1. Whether the death of Asaram was homicidal in the light
    of the evidence produced by Prosecution Witnesses?

    2. Whether the appellants in furtherance of their common       c
    intention, to take revenge of the alleged rape on accused
    No. 2, murdered Asaram and whether the accused are
    entitled to the benefit under Exception 4 of Section 300,
    IPC?
                                                                   D
    3. What order?

    Answer to Point No.1:

     11. The prosecution has relied on the evidence of PW-5,
Dr. Jinturkar, who examined and conducted the post-mortem          E
of Asaram's body. In his deposition before the Trial Court, PW-
5 stated as under:

     "External Injuries:

    1. An elliptical obliquely placed stab wound over the chest    F
    and right side, anteriorly in the 8th intercostals space, at
    midclavicular line, it was 2" x 0.75" x lung deep, it was
    directed medially and upwards, torn tags of under lying
    pleura were found to be protruding out of the wound, there
    was oozing of dark reddish colour blood through the wound,     G
    margins clean cut, inverted, surrounding skin shows blood
    stains.

    2. An elliptical obliquely placed stab wound over the chest
    and right hypochohorium of the abdomen just about Y."          H
    142       SUPREME COURT REPORTS                   (2014] 12 S.C.R.


A         below and lateral to the injury No.1 and in the 9th
          intercostal space, it was 2" x 0. 75" x liver deep, directed
          medially downwards in slightly oblique manner, underlying
          tissue and dark reddish blood oozing out of the wound
          substance. Margins clean cut inverted, bevelling noticed
B         at life margin of wound, dried blood stains seen over the
          skin in vicinity.

          3. l.V. injections sites seen at cubital fosse.

          INTERNAL INJURIES
c
          4. On internal examination I found congestion of meanings,
          brain was pale.

          5. The thorasix wall on the right side showed corresponding
          elliptical stab wound at all layers beneath injury no. 1 and
D
          no. 2 of col. No.17. Pleura shows clean cut elliptical stab
          below injury no. 1 and 2 as described in col. No.17, with
          collection of 310 ml. of reddish fluid blood in the right plural
          cavity, trachea contains reddish blood.

E         6. Right lung shows collapsed appearance and an oblique
          stab wound of 2" x 0.75" in size at its lower lobe, dark
          adherent blood clots seen at this site, involved tissue was
          friable.

          7. Left lung was pale in appearance, pericardium showed
F
          petechial hemorrhage.

          8. The Heart was contracted and right side contained
          scanty blood and left side was empty.

G         9. He further stated that the walls showed corresponding
          stab injury at all layers beneath injury No.2 of col. No.17.
          Peritoneum was cut obliquely at right hypondrium,
          measuring 2" x 0.75" in dimension, Peritoneal cavity
          contained about 450 ml of dark reddish blood and plenty
H         of blood clots. Liver showed clean cut through stab injury
   MURLIDHAR SHIVRAM PATEKAR v. STATE OF                       143
     MAHARASHTRA [V. GOPALA GOWDA, J.]
    of size 2" x 0. 75" at its super lateral aspect of right lobe of . A
    liver. The right lung was also damaged. He further stated
    that these injuries were possible by means of a knife and
    they were sufficient in ordinary course of nature to cause
    death.
                                                                       B
    10. He has further stated that these injuries would have
    been caused within 6 to 12 hours before the post mortem.
    According to him the cause of death was heamorrhagic
    shock due to stab injuries on chest and abdomen involving
    liver and right lung and accordingly he issued post-mortem C
     notes at Exh.32. he also issued provisional death
    certificate at Exh.33.

    11. Further, PW-5 has categorically denied the
    suggestions that injuries 1 and 2 were possible by means
    of fall over the knife or in scuffle or self inflicted."          D

    In Black's Law Dictionary, Abridged 6th Edition, 1991 at
page 819, it is stated that:

    "Preponderance of evidence is evidence which is of
    greater weight or more convincing than the evidence which         E
    is offered in opposition to it; i.e. evidence which as a whole
    shows that the fact sought to be proved is more probable
    than not."

     Thus, it is stated that the medical evidence acts as a check     F
upon the testimony of eye witnesses and also as independent
evidence in so far as it establishes facts, example, nature and
grievousness of the injuries suffered by the deceased.
Therefore, the above mentioned findings of PW-5 clearly
supports the findings recorded by the Trial Court that the death      G
of Asaram was homicidal on account of the injuries sustained
by him by means of a sharp weapon like knife on 28.08.1993.

    Answer to Point Nos.2 & 3 :

     12. Now we have to examine whether the appellant in              H
    144         SUPREME COURT REPORTS               [2014] 12 S.C.R.


A furtherance of their common intention, to take revenge of the
  alleged rape on accused No. 2, murdered Asaram. For this
  purpose the prosecution has relied on the following evidence:

           1.     Direct evidence of PW-2 Kisan, PW-3 Pandurang
8                 and PW-4 prahlad.

           2.     Dying declaration of the deceased Asaram at
                  Exb.40

           3.     Evidence of Accused No.2 and circumstantial
C                 evidence on record.

        Black's Law Dictionary, Abridged 6th Edition, 1991 at
    page 819 further states that:

          "A person, who deposes before the Court a fact which he
D         states he saw, must either speak truly or must have
          invented the story. Test of Proof is the test of probabilities
          upon which a prudent man may base his opinion."

       Adverting to the ocular evidence of PW-2, who along with
E complainant Madhavrao was sitting in front of their drawing
  room, heard the shout of deceased Asaram and rushed to the_
  said place of incidence and found that the accused no.2 had
  caught hold of the genitals of the deceased while accused no.
  1 had caught hold of the collar of the deceased. PW-2 further
F disclosed that the accused no.1 had a knife in his hand and
  he inflicted 2 knife blows into the chest and stomach of Asaram,
  who fell on the ground and the accused no. 1 and 2, went away.

       The testimony of PW-2 is fully corroborated with the
  testimony of PW-3, which was further corroborated by the
G testimony of PW-4, who had also stated the same version as
  deposed by PW-2 and PW-3.

        13. Thus, the evidence on record led by the prosecution
    eyewitnesses is sufficient to show that the accused nos. 1 and
H
   MURLIDHAR SHIVRAM PATEKAR v. STATE OF                      145
    MAHARASHTRA [V. GOPALA GOWDA, J.]
2 are the persons, who caused injuries on the vital parts of the     A
body of the deceased.

      14. After hearing the learned counsel for both the parties
and carefully examining the ocular evidence on record, we would
like to bring certain relevant facts into light that were deposed    8
by the above mentioned witnesses in their testimony and cross
examination, which the High Court and the Trial Court have
failed to notice the same.

     The fact that all the above witnesses saw the incidence of
scuffle is not disputed; however they entered the scene only         C
after they heard the shout of Asaram. What transpired prior to
that, between the accused and the deceased has not been
corroborated by anyone save the accused no. 2. None of the
witnesses seem to know the cause of the scuffle and neither
were they able to hear the altercation that was going on             D
between them.

     Further, all the witnesses saw accused no.1 inflicting injury
to deceased-Asaram by way of a knife that was later produced
as the murder weapon. However, none of the witnesses have            E
stated anywhere that the knife belonged to the accused no. 1,
therefore, the question that who had actually possessed the
knife first is still unknown.

     15. Further, the evidence of PW-4 cannot be completely
relied upon. This is because of the fact that in his cross           F
examination he has clearly stated that the incident was already
over by the time he reached the said place where the scuffle
had taken place. The facts and circumstances must be
reasonable and proximate and not conjectural and remote and
the prosecution has failed to satisfy this Court beyond any          G
reasonable doubt the reason and intent of the accused that
resulted in the death of Asaram.

    16. Now, we move on to the aspect of dying declaration.
The evidence of the deceased at Exb.39 which was reduced
                                                                     H
    146       SUPREME COURT REPORTS                (2014] 12 S.C.R.


A to writing by PW-8 at Exb.40, who has recorded the statement
  of Asaram at 10.45 a.m., stated that on enquiring about the
  assault, Asaram had stated that the accused assaulted him
  under the pretext that he had entered their house. Asaram had
  further stated that the accused assaulted him in the morning at
B about 8 a.m. There is no infirmity in recording the said dying
  declaration as it was recorded on the way when the injured was
  being taken to the police station and from there to the hospital.

        17. Now we come to the evidence of accused no. 2, the
C wife, which was outrightly disregarded by the High Court as well
  as the Trial Court. In her deposition, she has clearly stated that
  the deceased Asaram had entered her house and had pressed
  her neck and put a knife over her chest rendering her
  defenceless and making it impossible for her to raise her voice
  and thereby he committed rape. She further stated that the
D incident took place when her husband and children were not
  at home. She has also stated that when her husband reached
  home after a while she disclosed the incident of rape to him.
  However, they could not approach the police station or the
  Sarpanch on the very same night as it was raining but
E proceeded towards the police station the next morning at 8.00
  a.m. She further stated that Asaram, who was sitting with the
  other prosecution witnesses, rushed towards them and
  prevented them from proceeding further. Thereby, the deceased
  started assaulting the accused. She has further stated that the
F deceased had over powered her husband and none of the
  prosecution witnesses came to their rescue. Then she caught
  hold of the testicles of Asaram and her husband snatched the
  knife from the hand of the deceased who had pierced himself
  in the stomach during the scuffle with the knife. Her husband
G thereby proceeded towards the police station and narrated the
  incidence of the scuffle and lodged a complaint of rape against
  the deceased.

          18. Further, on the question of not raising the voice by the

H
   MURLIDHAR SHIVRAM PATEKAR v. STATE OF                   147
     MAHARASHTRA [V. GOPALA GOWDA, J.]
accused no. 2, in our opinion, it is understandable under this A
situation that the accused no.2 could have been in a state of
shock and scared and hence would not have been in a position
to reveal the incident of the rape to anyone. Thus, the contention
made by the prosecution that the delay in lodging the complaint
or revealing the same to the Sarpanch was premeditated on B
the part of the accused cannot be accepted by us on the fact
and circumstances of the case. Even for the sake of argument,
if we consider that the delay in lodging the complaint was a
premeditated plan on the part of the accused, then the accused
would not have delayed confronting the deceased until 8.00 a.m.   c
the next morning. Premeditation calls for construction of a plan
to execute a certain act. If the accused had planned on
confronting and eventually committing the act of murder against
the deceased, then they would not have executed the same in
their own neighbourhood, in the presence of a number of
                                                                   0
witnesses. Hence, we are of the opinion that there was no
premeditation on the part of the accused and the scuffle took
place due to sudden provocation on the part of the deceased.
This is further corroborated by the fact that the accused
themselves reached the police station and lodged a complaint E
against the deceased and confessed to the scuffle, thereby
submitting the knife (the murder weapon) at the police station.

     19. The question however still remains as to the nature of
the offence committed by the accused and whether it falls under
Exception 4 of Section 300, IPC.                                  F

    In the case of Surinder Kumar (supra), this Court has held
as under:-               ·

     "7. To invoke this Exception four requirements must be
     satisfied, namely, (1) it was a sudden fight; (i1) there was G
     no premeditation; (iii) the act was done in a heat of
     passion; and (iv)The assailant had not taken any undue
     advantage or acted in a cruel manner. The cause of the
     quarrel is not relevant nor is it relevant who offered the
                                                                  H
    148       SUPREME COURT REPORTS                  [2014] 12 S.C.R.


A         provocation or started the assault. The number of wounds
          caused during the occurrence is not a decisive factor but
          what is important is that the occurrence must have been
          sudden and unpremeditated and the offender must have
          acted in a fit of anger. Of course. the offender must not
B         have taken any undue advantage or acted in a cruel
          manner. Where. on a sudden quarrel. a person in the heat
          of the moment picks up a weapon which is handy and
          causes injuries. one of which proves fatal. he would be
          entitled to the benefit of this Exception provided he has not
C         acted cruelly."

                                                  (emphasis supplied}

         Further in the case of Arumugam v. State', in support of
    the proposition of law that under what circumstances Exception
D   4 to Section 300, IPC can be invoked if death is caused, it has
    been explained as under:-

          "18. 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
E
          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 Penal Code,
F         1860. 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 had worked themselves into
          a fury on account of the verbal altercation in the beginning.
          A fight is a combat between two and more persons
G         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

H   2.   (2008) 15 sec 590, at page 595.
     MURLIDHAR SHIVRAM PATEKAR Ii. STATE OF                   149
       MAHARASHTRA [V. GOPALA GOWDA, J.]
     proved facts of each case. For the application of Exception      A
     4, it is not sufficient to show that there was a sudden
     quarrel and there was no premeditation. II 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                B
     advantage'."

    .further in the case of Satish Narayan Sawant v. State
of Goa3 , this Court has held as under:

      " 24 ........ Section 300 IPC further provides for the          C
      Exceptions which will constitute culpable homicide not
      amounting to murder and punishable under Section 304.
      When and if there is intent and knowledge then the same
      would be a case of Section 304 Part I and if it is only a
      case of knowledge and not the intention to cause murder         D
      and bodily injury, then the same would be a case of
      Section 304 Part 11.

      28 .......... Records clearly establish that there was indeed
      a scuffle between the parties with regard to the availability   E
      of electricity in a Pilrticular room and during the course of
      scuffle the appellant also received an injury which was
      simple in nature and that there was heated exchange of
      words and scuffle between the parties before the actual
      incident of stabbing took place. There is, therefore,
                                                                      F
      provocation and the incident happened at the spur of the
      moment. That being the factual position, we are of the
      considered view that the present case cannot be said to
      be a case under Section 302 IPC but it is a case falling
      under Section304 Part II IPC. It is trite law that
      Section 304 Part II comes into play when the death is           G
      caused by doing an act with knowledge that it is likely to
      cause death but there is no intention on the part of the


3.   (2009) 11 sec 72,4.                                              H
    150          SUPREME COURT REPORTS            (2014] 12 S.C.R.


A         accused either to cause death or to cause such bodily
          injury as is likely to cause death."

        Thus, if there is intent and knowledge then the same would
  be a case of Section 304 Part I and if it is only a case of
  knowledge and not intention to cause murder and bodily injury
8
  then the same would fall under Section 304 Part II. We are
  inclined to the view that in the facts and circumstances of the
  present case, it cannot be said that the appellants/accused had
  any intention of causing the death of the deceased when they
C committed the act in question. The incident took place out of
  grave and sudden provocation and hence the accused are
  entitled to the benefit of Section 300 Exception 4 of IPC.

       Thus, in entirety, considering the factual scenario of the
  case on hand, the legal evidence on record and in the
D background of legal principles laid down by this Court in the
  cases referred to supra, the inevitable conclusion is that the act
  of the accused-appellants was not a cruel act and the accused
  did not take undue advantage of the deceased. The scuffle took
  place in the heat of passion and all the requirements under
E Section 300 Exception 4, IPC have been satisfied. Therefore,
  the benefit of Exception 4 under Section 300, IPC is attracted
  to the fact situations and both the appellants are equally entitled
  to this benefit.

         20. Thus, considering the factual background and the legal
F   position set out above, the inevitable conclusion is that the
    appropriate conviction of the appellants would be under Section
    304 Part II IPC instead of Section 302 IPC. Hence, the sentence
    of imprisonment for 10 years would meet the ends of justice.

G         21. The appeal is disposed of in the above said terms.

    Nidhi Jain                                     Appeal disposed of.