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Tuesday, August 18, 2015

It is a case of only one injury and the accused also suffering injury during the scuffle. The situation in the case of the appellant is totally different. It has been established in evidence that the deceased and the other members of the family were wholly unarmed, the deceased had come to his village only in the morning of the fatal day, the appellant and his younger brother, who is the co-accused, both were in possession of arms, the appellant had fetched the knife (Article-15) which had a wooden handle and 17 centimeter long blade portion with which the fatal injury was caused on the left side of the chest of the deceased. It is a situation where the appellant has taken undue advantage of the situation as held by this Court in Babulal Bhagwan Khandare and another v. State of Maharashtra[5]. Therefore, it is not a case where the appellant is entitled to alteration of sentence from Sec.302 of I.P.C. to Sec.304 Part II of I.P.C.




                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL  APPELLATE  JURISDICTION


                       CRIMINAL APPEAL NO. 812 OF 2008

Sunil Khergade                                     … Appellant (s)





































                                   Versus

State of Maharashtra                         … Respondent (s)




                               J U D G M E N T




KURIAN, J.:


The appellant along with his younger brother  was  convicted  under  Section
302 read with Section 34 of the Indian Penal Code (45 of 1860)  (hereinafter
referred to as ‘IPC’) and sentenced to  undergo  life  imprisonment  by  the
Court of 2nd Additional Sessions Judge, Nagpur. They were also sentenced  to
pay a fine of Rs.300/- each, a default sentence of two months. .

In appeal before the High Court of  Judicature  Bombay,  Nagpur  Bench,  the
High Court declined to interfere  with  the  conviction  and  sentence,  and
hence, the present appeal.

The appellant’s younger  brother-Sanjay  had  also  filed  a  Special  Leave
Petition before this Court as Special Leave Petition (Criminal) No. 7667  of
2007.  Since he had not  surrendered,  as  required  under  the  Rules,  the
Special  Leave  Petition  filed  by  him  was  dismissed  by   Order   dated
02.05.2008.

The incident took place on 12.02.1999 between 07.00 A.M. and 08.00 A.M.  The
deceased had returned to the village  only  in  the  morning  of  that  day,
around the time of the incident. There was a quarrel  between  the  families
who were sharing common open space. The genesis  of  the  quarrel  was  with
regard to the conduct of wife of the  deceased  who  allegedly  threw  night
soil in the open space. They had picked up such  quarrel  earlier  also.  It
has come in evidence that the co-accused was armed with crowbar and  he  had
held the hands of the deceased and made him lie  on  the  ground,  at  which
time the appellant fetched a knife and inflicted the  fatal  injury  on  the
left side of the chest.  The following are the injuries:

“1.   Stab wound in left mammary area medial to nipple  2  cm  x  1cm  x  5”
directed upward forward and medially.

Abrasion on chest wall left side above the stab wound 4 x ¼ cm.

Incised wound on back left sides  5  cm  x  ½  cm  and  akin  deep  tapering
laterally.”



The trial court  mainly  relied  on  the  evidence  of  PW-1-father  of  the
deceased, PW-2-wife of the deceased and PW-7-mother of the  deceased.  There
was no evidence for the defense. In the Statement under Section 313  of  The
Code of Criminal Procedure, 1973, the  appellant  explained  the  injury  as
having been caused when the deceased fell on the bamboo  fences  amidst  the
scuffle. However, it was contended before the  trial  court  that  appellant
inflicted the injury on the deceased in exercise of his private defence  and
the protection under Section 97 of IPC was canvassed.  That  contention  was
turned down in view of the  overwhelming  evidence  that  the  deceased  was
wholly unarmed and the other members of the family  were  also  unarmed.  It
was then contended that the act of stabbing was  on  account  of  grave  and
sudden provocation and that the act was done without any intention to  cause
death or to cause such bodily injury as is likely to cause death  and  hence
canvassed for the benefit of Section 304 Part II of IPC.

The trial court, however, having regard to the evidence of  PWs-1, 2 and  7,
who were also injured witnesses, and taking note of the  nature  and  manner
of the commission of the crime, convicted  the  appellant  and  his  brother
under Section 302 read with Section 34 of IPC. However, on evidence,  taking
note of the young age of the accused and on reaching the conclusion that  it
is not a case of rarest of the rare cases, the appellant  was  sentenced  to
suffer imprisonment for life. The  trial  court  found  that  accused  no.1-
Sanjay (younger brother of the appellant) had caught hold of  the  deceased,
made him lie on the ground and the appellant brought knife  from  the  house
and inflicted a stab injury on the chest of the deceased.

In appeal, having analysed the evidence at length, the High  Court  was  not
inclined to take a different view.

Learned Counsel for the appellant mainly stressed for the conviction  to  be
altered to Section 304 Part II of  IPC.   Even  otherwise,  private  defence
under Section 97 of IPC and the benefit under exception to  Section  300  of
IPC will not go together.

It is submitted that there was only one injury  that  is  mentioned  in  the
First Information Report,  and  with  that,  it  cannot  be  held  that  the
appellant  committed  murder.  The  First  Information   Report   need   not
necessarily contain each  and  every  particular  injury  sustained  by  the
deceased. It needs to contain only some  information  about  the  crime  and
some information about the manner in which the offence has  been  committed.
It is not required to contain the minute details of the  whole  crime.  (See
Patai alias Krishna Kumar v. State of  Uttar  Pradesh[1]).  In  the  instant
case, the First  Information  Report  was  prepared  on  the  basis  of  the
statement given by PW-1-father of the  deceased.  To  him,  it  is  not  the
number of injuries sustained what mattered but the death resulting from  the
stab injury. It has also  come  in  evidence  that  the  deceased  had  been
inflicted with three injuries by the appellant and the fatal injury  is  the
one which pierced the heart of the deceased.

Learned Counsel for the appellant, placing reliance on Salim Sahab v.  State
of M.P.[2], prayed for alteration of the conviction from Section 302 of  IPC
to Section 304 Part II of IPC. Reference is also  invited  to  Mohd.  Ismail
alias Haji Abdul Kadar Sheikh v. State of Gujarat[3].  Salim  Sahab  (supra)
is a case where the Court, having discussed the factual  scenario,  came  to
the conclusion that “…  during  a  quarrel  between  the  deceased  and  the
accused, they were grappling and during that quarrel, the  accused  attacked
the deceased with a pair of scissors. It was not  a  very  big-sized  weapon
though it was certainly having a sharp-edged point”. In  that  view  of  the
matter, the conviction was altered to Section 304  Part-II  of  IPC.   Mohd.
Shakeel v. State of A.P.[4] is also one  where  the  conviction  is  altered
from Section 302 of IPC to Section 304 Part II of IPC.   It  is  a  case  of
only one injury and the accused also suffering injury  during  the  scuffle.
The situation in the case of the appellant  is  totally  different.  It  has
been established in evidence that the deceased and the other members of  the
family were wholly unarmed, the deceased had come to  his  village  only  in
the morning of the fatal day, the appellant and his younger brother, who  is
the co-accused, both were in possession of arms, the appellant  had  fetched
the knife (Article-15) which had a wooden  handle  and  17  centimeter  long
blade portion with which the fatal injury was caused on  the  left  side  of
the chest of the deceased. It is a situation where the appellant  has  taken
undue advantage of the situation as held by this Court  in  Babulal  Bhagwan
Khandare and another v. State of Maharashtra[5].  Therefore,  it  is  not  a
case where the appellant is entitled to alteration of sentence from  Section
302 of IPC to Section 304 Part II of IPC.









There is no merit in the appeal, hence, it is dismissed.




                                                          ………..………………………..J.
                                (KURIAN JOSEPH)


                                                            …………………..……………J.
          (ADARSH KUMAR GOEL)
New Delhi;
August 13, 2015.
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[1]    (2010) 4 SCC 429
[2]    (2007) 1 SCC 699
[3]    (2007) 3 SCC 118
[4]    (2007) 3 SCC 119
[5]    (2005) 10 SCC 404

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                                                                  REPORTABLE


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