Holding

The conviction under Section 302 read with Section 34 cannot be sustained; the appellants are guilty of culpable homicide not amounting to murder under Section 304 Part I, and the conviction under Section 324 read with Section 34 is upheld.

Summary

The appellants, two brothers, were convicted of murder (Sec. 302 IPC) and causing hurt (Sec. 324 IPC) for the death of their uncle Devaji and injuries to his children during a property‑related dispute. They claimed they acted in private defence after being attacked by the deceased and his son, who allegedly came armed. The trial court and High Court upheld the murder conviction, but the Supreme Court examined whether the prosecution had explained the injuries on the accused and whether the force used exceeded the right of private defence. Finding no pre‑meditation, that the accused were initially unarmed, and that a sudden mutual fight likely occurred, the Court held the murder charge could not be sustained. Consequently, the conviction was altered to culpable homicide not amounting to murder under Sec. 304 Part I, while the conviction under Sec. 324 read with Sec. 34 was upheld, and the appeal was partly allowed.

Issues considered

The appropriateness of conviction under Section 302 IPC given the circumstances of a sudden fight and claim of private defence
Whether the prosecution must explain injuries on the accused when a plea of private defence is raised
Whether the accused exceeded the limits of the right of private defence
The validity of conviction under Section 324 IPC read with Section 34

Legislation cited

Indian Evidence Act, 1872s. 105
Indian Penal Code, 1860s. 302, s. 304(Part I), s. 324, s. 34, s. 96

Subjects

murderculpable homicideprivate defenceSection 302 IPCSection 304 IPCSection 324 IPCburden of proofsudden fightproperty dispute

Judgment

SURENDRA AND ANR. A
v.
ST ATE OF MAHARASHTRA

AUGUST 24, 2006

[S.B. SINHA AND DAL VEER BHANDARI, JJ.] B

Penal Code, 1860:

Section 304, Part I-Culpable homicide not mnounting to murder-
When PW-3, the son of the deceased, was going to the pan shop early in the C
morning, accused No. 2 allegedly came out with a stick and hurled some
blows on him-PW-I, daughter of the deceased raised hue and cry-The
deceased came out thereafter to rescue his son-At that time, accused No. I
allegedly took out one ubhari (a big stick) from a bullock cart and assaulted
him-It was the case of the accused persons that the deceased and his son, D
nurturing deep resentment against them, came armed and made attempts to
assault accused No. I who was milking his cows in the cattle shed-Trial
court convicted the accused persons under S. 302134-High Court affirmed
the conviction-Correctness of-Held: It was necessary on the part of the
prosecution to explain the injuries on the person of the accused-The
possibility of PW-3 and the deceased being the aggressors cannot be ruled E
out-Evidently, there was no pre-meditation on the part of accused No. 1-
He was not armed-He took out an ubhari from his bullock cart at a later
stage-It is, therefore, a case where it is likely that a sudden fight between
the parties had erupted-Hence, conviction is altered to one under. S. 304,
Part I and S. 324134.
F
Section 96-Right of private defence-Exercise of-Principles-Held:

• In all circumstances injuries on the person of the accused need not be
explained but a different standard would be applied in a case where a ·
specific plea of right of private defence has been raised-Right of private
defence cannot be exceeded by using more force upon the deceased than was G
necessary.

According to the prose~ution, the appellants-accused were brothers and
the deceased was their uncle and there were some property disputes between
them. When PW-3, the son of the deceased, was going to the pan shop early
291 fl·
292 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A in the morning, appellant No. 2 allegedly came out with a stick and hurleci
some blows on him. PW-I, daughter of the deceased raised hue and cry. The
deceased came out thereafter and made endeavours to rescue his son. At that
time, appellant No. I allegedly took out one ubhari (a big stick) from a bullock
cart and assaulted him. It was the case of the appellants that the deceased and
his son, nurturing deep resentment against them, came armed and made
B attempts to assault appellant No. I who was milking his cows in the cattle
shed. On the complaint of appellant No. I a case under Section 324 read with
Section 34 of the Penal Code, 1860 was registered against the deceased and

c
his son. Appellant No. I had raised a plea of private defence and the injuries
on the person of the appellants were not explained.

The trial court convicted the appellants-accused persons under Sections
-
302/34 and 324/34 IPC. The High Court affirmed the conviction. Hence the
appeal.

Allowing the appeal in part, the Court
D
HELD: I. In a case of this nature, a broad view of the entire matter was
required to be taken, viz.

(a) Appellant No. I was not armed and he at a later stage of the quarrel
took out an ubhari (a big stick) from a bullock cart.
E
(b) He had raised a contention even in his bail petition that he had
exercised his right of private defence. (298-E, F(

2. In all circumstances injuries on the person of the accused need not
be explained but a different standard would be applied in a case where a specific
F plea of right of private defence has been raised. It may be true that in the
event the prosecution discharges its primary burden of proof, the onus would
shift on the accused but the same would not mean that the burden can be
discharged only by examining defonce witnesses. (298-F, Gf •
3. The courts below committed a manifest error of law in opining that
G the appellants had not discharged the initial burden which is cast on them.
Even such a plea need not be specifically raised. The Courts may only see as
to whether the plea of exercise of private defence was probable in the facts
and circumstances of the case. (299-A(

State of UP. v. Ram Swarup, (1974( 4 SCC 764; Yogendra Morarji v.
H
SURENDRA v. ST ATE OF MAHARASHTRA 293
State of Gujarat, 1198012 SCC 218; Cherlopalli Cheliminabi Saheb v. State A
of A.P., 1200312 SCC 571; Bishna Alias Bhiswadeb Mahato v. State of W.B.
12005112 SCC 657 and Nagarathinam v. State, Rep. by Inspector of Police,
JT (2006) 4 SC 288, relied on.

3. The defence of the appellants, therefore, could not have been wished
away. In a case of this nature, it was necessary on the part of the prosecution B
to explain the injuries on the person of the accused. The investigation of the
entire cases and particularly in regard to the fact that there were cross cases,
a fair investigation was expected. The possibility of PW-3 and the deceased
•• being the aggressors cannot be ruled out. They had been bearing a grudge
against appellant No. l.1302-G; 303-AJ C
4. Why the occurrence took place in front of the house of the appellants
had not properly been explained by the prosecution witnesses. Evidently, there
was no pre-meditation on the part of appellant No. l. He was not armed. He
took out an ubhari from his bullock cart at a later stage. [303-AI
D
5. The statements of the prosecution witnesses in regard to the genesis
of the occurrence and the presence of the prosecution witnesses at different
stages are not uniform. It is, therefore, a case where it is likely that a sudden
fight between the parties had erupted which would attract Section 304 of the
Penal Code, 1860 and not Section 302 thereof. It is also a case where an
;- ·-- inference can safely be drawn that the blows were initially not hurled on the E
deceased by the appellants. They did so at a later stage. But, appellant No. I
suffered minor injuries. He had not been able to show that the situation was
such that he could reasonably apprehend his death. They have er.ceeded their
right of private defence in using more force upon the deceased than was
necessary. (303-B, C, DI F
Pappu v. State of Madhya Pradesh. 12006] 7 SCALE 24, relied on.

6. The conviction of the appellants under Section 302 read with Section
34 IPC cannot be sustained. They are held guilty for commission of an offence
under Part I, Section 304 of the IPC. The conviction and sentence imposed on G
them under Section 324 read with Section 34 is, however, upheld. (304-A, Bl

CRIMINAL APPELLATE JURJSDICTION : Criminal Appeal No. 506 of
2005.

From the Judgment/Order dated 10.7.2002 of the High Court of Judicature H

...
294 SUPREME COURT REPORTS [2006J SUPP. 5 S.C.R.
.
A at Bombay, Nagpur Bench, Nagpur, in Criminal Appeal No. 285 of 1997.
Rishi Malhotra and Prem Malhotra for the Appellants.

V.N. Raghupathy and Asha G. Nair (for Ravindra Keshavrao Adsure) for
the Respondent.
B
The Judgment of the Court was d71ivered by

S.B. SINHA, J. The Appellants herein are brothers. They were charged
with commission of an offence punishable under Section 302 read with Section
34 of the Indian Penal Code for causing the death of one Devaji and for
c committing an offence punishable under Section 324 read with Section 34 of
the Indian Penal Code for causing hurt to Mina Yenurkr and her brother Dilip
Yenurkr.

The deceased admittedly was the uncle of the Appellants. Injured Di lip
and Miµa are his son and daughter. He had three other sons, viz., Jaywanta,
D Umaka11t and Navin Nischal as also a daughter by the name of Hemlata. The
incidence took place on 11.12.95 at about 7 a.m. Dilip was allegedly going to
a Pan Shop early in the morning. When he crossed some distance, Appellant
No. 2 allegedly came out with a stick and hurled some blows on him. Mina
(PW- I) seeing this is said to have raised hue and cry. The deceased Devaji
E came out thereafter and made endeavours to rescue him. At that time Surendra
Appellant No. I allegedly took out one ubhari (a big stick) from a bullock cart
and assaulted him. Mina went to police station and filed a complaint which
was marked as Ex. P-29. However, a First Information Report was lodged on
a complaint made by Navin Nischal (PW-2).

F The Appellants contend that Devaji and Dilip had been nurturing deep
resentment against them and in particular against Appellant No. I who after
his father's death had been looking after the family properties. They were
determined to kill Appellant No. I. Devaji and Dilip allegedly came armed and
made attempts to assault Appellant No. I who was milking his cows in the
cattle shed. Dilip entered into the cattle shed and hurled a blow on his
G abdomen. He warded off the blows by taking them on his left hand and, thus,
received injuries. Thereafter in course of scuffle between them, Di lip fell down
in the courtyard and sustained an injury on his head. Devaji thereafter
assaulted Appellant No. I with a stump of bullock cart on his right hand. He
with a view to exercise his right of private defence took out an ubhari from ~

H his bullock cart and injured Devaji. Mina also intervened in the meantime and
SURENDRA v. STATE OF MAHARASHTRA [S.B. SINHA, J.] 295

sustained an injury on her left hand. Allegedly, Appellant No. I Surendra A
thereafter went to police station and lodged a report pursuant whereto a First
Infonnation Report was lodged against Dilip and others for commission of
an offence under Section 324 read with Section 34 of the Indian Penal Code .
... All the injured persons were also sent to the Hospital by the Investigating
Officer, A chargesheet was also filed under Section 324 of the Indian Penal
Code against some, of the prosecution witnesses. B

Before the learned Trial Judge the prosecution examined several
witnesses out of whom PWs I, 2 and 3 Mina, Navin and Dilip were daughter
.
_ and sons of the deceased. PW -4 is said to be an independent witness.

The learned Sessions Judge as also the High Court relying on or on c
the basis of the evidence adduced by the prosecution, found the Appellants
guilty of commission of the offence charged against them and sentenced
them to undergo rigorous imprisonment for life.

Mr. Rishi Malhotra, learned counsel appearing on behalf of the D
Appellant submitted that the learned Sessions Judge as also the High Court
failed to consider the evidences brought on record from the perspective of
the defences raised by the Appellants and, thus, could have been convicted
only under Part II of Section 304 of the Indian Penal Code.

Mr. V.N. Raghupathy, learned counsel appearing on behalf of the State, E
on the other hand, supported the impugned judgments submitting that the
onus to prove valid exercise of right of private defence was on the Appellants
but they failed to discharge the same.

Mina, PW- I is one of the injured witnesses. According to her, she had
gone to police station and her statement was recorded. The same was marked F
before the learned Sessions Judge as Ex. P-29. The report of Navin Nischal
(PW-2) which was considered as the First Information Report and on the
basis whereof the investigation started was marked as Ex. P-31. No explanation
has been offered by the prosecution as to why the report of Mina was not
treated to be a First Infonnation Report. Mina does not appear to be wholly G
truthful as she in her statement before the police did not allege that both the
Appellants were anned with sticks. In her statement before the police, she
also did not state that Dilip was taken to the house of a neighbour for taking
water although in his statement Dilip stated he had become unconscious.
Mina had also not made any statement that immediately after the occurrence,
the Appellants had threatened others not to intermeddle in the matter and H
296 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A if they do so they would face dire consequences. PW-2 categorically stated
that Mina had gone to police station prior to him.

In the First Information Report, PW-2 categorically stated:

"my father and siste1 went there to act as a mediator, so my brother
B Dilip ran away"

He also stated:

"It is true that Mina was not present when the accused assaulted my
father."
c He admitted that there was a dispute as regards some land; possession
whereof was taken over by the Appellants.

PW-3 is Dilip. Interestingly, the witness stated that after being assaulted,
he felt 'somewhat like unconscious' and went to the house of neighbour and
D stayed there. It may be placed on record that he categorically stated before
the learned Trial Judge:

"We had intention to kill accused Surendra."

It is not in dispute that the applicants obtained possession of some
E lands from them in execution of a decree.
A suggestion was given to him that Appellant No. I had taken out
ubhari from bullock cart to save his life which he denied. In his cross-
examination, he further stated:

"I myself were on inimical terms with the accused. I did not ask any
F
reason to my father about non-talking terms of the accused inimical
terms from my birth. I and my father are having dispute about the
agricultural land, with the accused."
..
PW-4 is Kawardu. He deals in sale of milk. Although, as noticed
G hereinbefore, PW-3 denied that Appellant No. I had taken out an ubhari from
his bullock cart but PW-4 categorically stated:

" ... The accused Surendra had taken Ubhari from the bullock - cart
which was parked in front of his house ... "

H He, however, accepted that he was the Manger of Hindustan Nagrik
....

SURENDRA v. ST ATE OF MAHARASHTRA.[S.B. SINHA, J.] 297

Sanstha Bhandara and Dilip had been working under him as a peon. He A
furthermore admitted that he had good relation with Devaji for a long time.
It may be noted that in his statement before the police, he had not stated
that Appellant No. 1 assaulted the deceased with an ubhari.

PW-5 Govindlal found the dead body of Devaji lying in front of the
house of the accused. B
PW-8 Dr. Vijay conducted the post mortem. He found the following
ante-mortem injuries on the person of the deceased:

"(I) Lacerated wound 7" x 2", I" depth on right partial region of
~ c
(2) Lacerated wound 2" x I" skin deep right partial region I" posterior
to injury No. I.

(3) Lacerated wound I" cm x I 'Ii cm. Triangular on right pinna of right
ear opposite tragus. D
(4) Lacerated wound 2/2" x I" x V2" on mastoid.

(5) Lacerated wound 2" x V2" right side of forehead extending right
laterally to occipital region.
, (6) Abrasion on right shoulder. E
(7) Abrasion on back 6 x 'h" left side infra scapular region.

(8) Abrasion on back 4" x 'h" left side 2" below injury No. 7."

The injuries on the person of PW-I were as under:
F
"(I) Contusion I" x 'h" on the doraome of left palm.

(2) Contusion left elbow I" x 'h"

(3) Contusion on left shoulder I" x 'h"."
G
Dilip is said to have suffered the following injuries:

"(I) Contusion 2: x 'h" on forehead above left eye brow.

(2) Lacerated wound I cm. xV2 cm. Above injury No. I"

PW-8 accepted that the injuries suffered by PW-I and PW-3 could be H
298 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A caused by fall on hard substance. They did not suffer any fracture. He also
accepted that injuries Nos. 6, 7 and 8 on the person of the deceased being
abrasions which were suffered by Devaji, could be caused due to fall.

The Investigating Officer examined himself as PW-9. He admitted that
he had sent Appellant No. I to the Central Hospital, Bhandara because he
B had injuries on his person.

Taking place of the incidence is not in dispute. The Appellants had
taken possession of the land from the deceased in execution of a decree. The
deceased and Dilip, therefore, must be nurturing grudge against them.
C Admittedly, a large number of litigations were pending between the parties.

The learned Trial Judge also in his judgment noticed that the deceased
and his son had intention to kill Appellant No. I and the Appellants suffered
injuries. Despite the admitted fact that a case under Section 324 of the Indian
Penal Code was registered against Dilip and his father, the Investigating
D Officer had not brought any material on records as regards the injuries
suffered by them. The Appellants had called for the injury report but the same
was not produced.

The Investigating Officer even did not draw up a sketch map. He did
not make any investigation from the point of view of the defence. The
E investigation was, thus, not fair.

In a case of this nature, in our opinion, a broad view of the entire matter
-
was required to be taken, viz.,

(i) Appellant No. I was not armed and he at a later stage of quarrel
F took out an ubhari from a bullock cart.
(ii) He had raised a contention even in his bail petition that he had
exercised his right of private defence.

We are not unmindful of the fact that in all circumstances injuries on
the person of the accused need not be explained but a different standard
G would be applied in a case where a specific plea of right of private defence
has been raised. It may be true that in the event prosecution discharges its
primary burden of proof, the onus would shift on the accused but the same
would not mean that the burden can be discharged only by examining defence
witnesses.
H
SURENDRA v. STATE OF MAHARASHTRA [S.B. SINHA . .!.] 299
The learned courts below committed a manifest error of law in opining A
that the Appellants had not discharged the initial burden which is cast on
them. Even such a plea need not be specifically raised. The Courts may only
see as to whether the plea of exercise of private defence was probable in the
facts and circumstances of the case.

In State of U.P. v. Ram Swarup and Anr., [1974] 4 SCC 764, this Court B
stated the law, thus:

"The burden which rests on the prosecution to establish its case
beyond a reasonable doubt is neither neutralised nor shifted because
the accused pleads the right of private defence. The prosecution must
discharge its initial traditional burden to establish the complicity of C
the accused and not until it does so can the question arise whether
the accused has acted in self-defence. This position, though often
overlooked, would be easy to understand if it is appreciated that the
Civil Law Rule of pleadings does no.t govern the rights of an accused
in a criminal trial. Unlike in a civil case, it is open to a criminal court D
to find in favour of an accused on a plea not taken up by him and
by so doing the Court does not invite the charge that it has made out
a new case for the accused. The accused may not plead that he acted
in self-defence and yet the Court may find from the evidence of the
witnesses examined 'by the prosecution and the circumstances of the
case either that what would otherwise be an offence is not one E
because the accused has acted within the strict confines of his right
of private defence or that the offence is mitigated because the right
of private defence has been exceeded. For a moment, therefore, we will
keep apart the plea of the accused and examine briefly by applying
the well-known standard of proof whether the prosecution, as held by F
the Sessions Court, has proved its case."

Yet again in Yogendra Morarji v. State a/Gujarat, [1980] 2 SCC 218, this
Court opined:

"Before coming to the facts of the instant case, the principler. governing G
the burden of proof where the accused sets up a plea of private
defence, may also be seen. Section 105, Evidence Act enacts an
exception to the general rule whereby in a criminal trial the burden of
proving everything necessary to establish the charge against the
accused beyond reasonable doubt, rests on the prosecution. According
to the section, the burden of proving the existence of circumstances H
,-

300 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

A bringing the case within any of the General Exceptions in the Indian
Penal Code; or within any special exception or proviso contained in
any other part of the Code or in any other law, shall be on the accused
person, and the Court shall presume the absence of such circumstances.
But this section does not neutralise or shift the general burden that
lies on the prosecution to prove beyond reasonable doubt all the
B ingredients of the offence with which the accused stands charged.
Therefore, where the charge against the accused is one of culpable
homicide, the prosecution must prove beyond all manner ofreasonable
doubt that the accused caused the death with the requisite knowledge
or intention described in Section 299 of the Penal Code. It is only after
c the prosecution so discharges its initial traditional burden, establishing
the complicity of the accused, that the question whether or not the
accused had acted in the exercise of his right of private defence,
arises."

In Cherlopalli Cheliminabi Saheb and Anr. v. State of A.P., [2003] 2
D sec 571, this Court stated the law, thus:
" ... In this case, as stated above, the prosecution has come out with
a particular narration of the incident in question according to which
these appellants and two others stabbed the deceased but the
prosecution has recovered only one weapon, therefore, it is difficult
E to appreciate the prosecution case how by one single weapon all
these four accused persons could have stabbed the deceased. That
apart, the prosecution in its version of the incident has not explained
how the accused persons suffered injuries and by whom. There is an
obligation on the part of the prosecution to explain the injuries suffered
by the accused. In the instant case, the accused also came to the
F
hospital almost at the same time as the deceased and the doctor
examined them after examining the deceased, therefore, these injuries
on the accused persons must have been caused in the same incident
in which the deceased suffered injuries which later became fatal.
Hence, in the absence of any explanation from the prosecution as to
G the injuries on the appellant, we are of the opinion that the prosecution
version of the incident becomes doubtful..."

The question was examined at some details in Bishna Alias Bhiswadeb
Mahato and Ors. v. State of W.B., [2005] 12 SCC 657 wherein this Court
opined:
H
SURENDRA v. STATE OF MAHARASHTRA [S.B. SINHA, J.] 301
"Private defence can be used to ward off unlawful force, to prevent A
unlawful force, to avoid unlawful detention and to escape from such
detention. So far as defence of land against the trespasser is concerned,
a person is entitled to use necessary and moderate force both for
preventing the trespass or to eject the trespasser. For the said purposes,
the use of force must be the minimum necessary or reasonably believed
to be necessary. A reasonable defence would mean a proportionate B
defence. Ordinarily, a trespasser would be first asked to leave and if
the trespasser fights back, a reasonable force can be used."

In regard to the duty of the prosecution to explain the injuries on the
part of the accused, this Court observed:
c
"Section I05 of the Evidence Act casts the burden of proof on the
accused who sets up the plea of self-defence and in the absence of
proof, it may not be possible for the court to presume the correctness
or otherwise of the said plea. No positive evidence although is required
to be adduced by the accused; it is possible for him to prove the said D
fact by eliciting the necessary materials from the witnesses examined
by the prosecution. He can establish his plea also from the attending
circumstances, as may transpire from the evidence led by the
prosecution itself.

In a large number of cases, this Court, however, has laid down the law E
that a person who is apprehending death or bodily injury cannot
weigh in golden scales on the spur of the moment and in the heat of
circumstances, the number of injuries required to disarm the assailants
who were armed with weapons. In moments of excitement and disturbed
equilibrium it is often difficult to expect the parties to preserve
composure and use exactly only so much force in retaliation F
commensurate with the danger apprehended to him where assault is
imminent by use of force. All circumstances are required to be viewed
with pragmatism and any hypertechnical approach should be avoided.

To put it simply, if a defence is made out, the accused is entitled to
be acquitted and if not he will be convicted of murder. But in case of G
~.
use of excessive force, he would be convicted under Section 304 IPC."

The question again came up for consideration in Nagarathinam and
Ors. v. State, Rep. by Inspector of Police, JT (2006) 4 SC 288 wherein this
Court in an almost identical situation opined:
H
302 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

A "The genesis of the occurrence is, therefore, shrouded in mystery.
This occurrence, admittedly, took place, but who were thus initial
aggressors, i.e., the prosecution witnesses or the appellants, is difficult
to say. The High Court has found that the prosecution had not been
able to prove the charge of rioting. The appellants and others did not
have any common object to cause death of the accused of the
B prosecution witnesses. We have noticed hereinbefore the nature of
injuries on the person of the appellants. The first appellant received
two stab wounds and also an incised wound over the scalp at frontal
region. The appellant No.2 received deep cut wound and an incised
wound over the scalp left side parietal region. The appellant No.3 also
c received an incised scalp wound over frontal parietal region. It is not
denied and disputed that they were in the hospital as indoor patients
for a few days. We have furthermore noticed hereinbefore that they
were also arrested after a few days.

The High Court although saw that the injuries suffered by the
D accused were on the vital parts of their bodies but without discussing
the evidences, brought on record held that the same were not sustained
by them while exercising their right of self-defence. It is true that it
is not for the prosecution to prove injuries on the person of the
accused, in each and every case irrespective of the nature thereof, but
in a case of this nature the same would require serious consideration
E as a plea of right of exercise of self-defence was raised. It is in that
context that the apprehension of death or bodily injury in the mind
of the accused persons would have to be determined having regard
to the number of people assembled to take part in assaulting them, the
manner in which they were assaulted, the arms used as also the situs
F of injury received by them. It is now well settled that a person
apprehends death or bodily injury cannot be weighed in golden scales
on the spur of the moment and in the heat of circumstances, the
number of injuries required to disarm the assailants who were armed
with weapons."

G The defence of the Appellants, therefore, could not have been wished
away. In a case of th is nature, it was necessary on the part of the prosecution
to explain the injuries on the part of the accused. The investigation of the
entire cases and particularly in regard to the fact that there were cross cases,
a fair investigation was expected. The possibility of PW-3 and the deceased
H being the aggressors cannot be ruled out. It would bear repetition to state
SURENDRA v. STATE OF MAHARASHTRA [S.B. SINHA, J.] 303
that they had been bearing grudge against Appellant No. 1. A
Why the occurrence took place in front of the house of the Appellants
had not properly been explained by the prosecution witnesses. Evidently,
there was no pre-meditation on the part of Appellant No. 1. He was not
armed. He took out an ubhari from his bullock cart at a later stage.
B
The possibility of PW-3 and the deceased being aggressors must be
judged from the admission made by PW-3 that they intended to kill Appellant
No. 1. As has been noticed hereinbefore, the statements of the prosecution
"l
witnesses in regard to the genesis of occurrence and the presence of the
prosecution witnesses at different stages are not uniform. It is, therefore, a C
case where it is likely that sudden fight between the parties erupted which
would attract Section 304 of the Indian Penal Code and not Section 302
thereof. It is also a case where an inference can safely be drawn that the
blows were initially not hurled on the deceased by the Appellants. They did
so at a later stage. But, Appellant No. 1 suffered minor injuries. He had not
been able to show that the situation was such that he could reasonably D
apprehend his death. They have exceeded their right of private defence in
using more force upon the deceased than was necessary.

Recently, the question has been examined at some details in a decision
of this Court in Pappu v. State of Madhya Pradesh, (2006) 7 SCALE 24
holding: E
" ... 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 I. There is no previous deliberation or F
determination to fight. A fight suddenly takes place, for which both
parties are more or Jess 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 tum it did. There is then mutual
provocation and aggravation, and it is difficult to apportion the share G
of blame which attaches to each fighter. The help of Exception 4 can
be invoked if deat~ 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 pershn killed. To oring a case within Exception 4 all
the ingredients mentioned in it must be found .... " H
304 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A For the reasons aforementioned, we are of the opinion that the conviction
of the Appellants under Section 302 read with Section 34 of the Indian Penal
Code cannot be sustained. They are held guilty for commission of an offence
under Part I, Section 304 of the Indian Penal Code. They are directed to
suffer rigorous imprisonment for a period of I0 years. The conviction and
B sentence imposed on them under Section 324 read with Section 34 is, however,
upheld. The sentences, however, shall run concurrently. This appeal is, thus,
allowed in part and to the extent mentioned hereinbefore.

V.S.S. Appeal partly allowed.