Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1603 OF 2012
[@ SLP (CRL) NO.5734 OF 2012]
Sudhakar …Appellant
VERSUS
State of Maharashtra …Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. Leave granted and the scope of consideration in this appeal is limited
to the nature of offence and the sentence to be imposed.
2. This appeal is directed against the judgment of the High Court of
Judicature at Bombay, Nagpur Bench dated 01.12.2011 passed in Criminal
Appeal No.84 of 2006. By the judgment impugned in this appeal, the
conviction of the appellant for an offence under Section 302 of IPC
with a sentence of life imprisonment apart from fine of Rs.500/- in
default of which to undergo rigorous imprisonment for three months by
the learned Sessions Judge, Amravati in Sessions Trial No.195/2004
dated 22.09.2005 came to be confirmed.
3. The brief facts which are required to be stated are that on 10.07.2004
P.W.1-Tulsabai preferred a complaint under Exhibit-38 with P.W.3-PSI
Madhav Dhande attached to Police Station Frezarpura, Amravati which
came to be registered as Crime No.138/2004. The printed First
Information Report is Exhibit-39. According to the complainant, on
09.07.2004 between 9.30 p.m. to 10.00 p.m. while her husband, the
appellant herein, was sleeping on a wooden cot which was in the front
court-yard of the house, her son Balya-the deceased, came from outside
and asked the appellant as to whether he had taken his dinner to which
the appellant replied in the negative. Thereafter, the deceased asked
P.W.1 to serve food for him which she did inside the house. Balya went
inside the house for washing his hands. The deceased stated to have
asked his father, appellant herein, to sleep inside the house and,
thereafter, the appellant went inside which was being watched by P.W.1
who was standing near the door of the house. It is sated that at that
point of time she saw the appellant inflicting a stab injury on the
deceased on which the deceased raised shouts about the inflicting of
the injury by his father and so saying he also fell down. The
appellant stated to have come out of the house by shouting to the
effect that he had stabbed the deceased and on hearing shouts the
appellant’s brother one Sunil Chandrabhan Bansod arrived at the spot
and arranged for an auto rickshaw to take the deceased to Irwin
Hospital, Amravati. It is stated that on being admitted in the
hospital, it was declared that the deceased succumbed to the injuries.
4. After investigation, P.W.3 stated to have arrested the appellant at
1.50 a.m and drew the scene of occurrence in the presence of Panchas
under Exhibit-45, seized the clothes of the appellant under seizure
memo Exhibit-46, seized the knife under seizure memo Exhibit-47 and
also seized two blood stained bed-sheets, simple and blood stained
soil from the spot in the presence of Panch witnesses under seizure
memo Exhibit-48 which were sent for chemical analyzer report. The
report of the chemical analyzer was marked as Exhibits-30, 35 and 36.
Exhibit 35 disclosed that the knife was stained with human blood while
the clothes of the appellant were stained with blood group ‘A’ which
was the blood group of Balya, the deceased. Exhibit-36 disclosed that
the blood group of the appellant as ‘B’ group. On framing of the
charges for the offence under Section 302 of IPC, the trial was held
against the appellant in which four witnesses were examined on the
side of the prosecution. In the 313 questioning the appellant totally
denied the offence alleged against him.
5. P.W.1, the wife of the appellant, is also the mother of the deceased.
As per her version before the Court on the date of the incident she
was present along with her husband, when the deceased in the first
instance asked the appellant whether he had his dinner and thereafter
P.W.1 served dinner to the deceased inside the house. The appellant,
who was sitting on the cot outside the house, stated to have went
inside the house while P.W.1 was standing at the entrance of the
house. Then P.W.1 stated to have heard the cries of the deceased to
the effect that he was dying and when she asked him, he replied that
he was stabbed by the appellant and that she cried for help to which
the neighbours gathered who took the deceased in an auto rickshaw to
the hospital and that thereafter she lodged the report Exhibit-38. In
the cross-examination P.W.1 came out with the information that the
deceased was under the influence of liquor and that whenever he was
under the influence of liquor he used to throw the household articles
and also beat himself.
6. According to P.W.2, a neighbour of the house, on hearing the cries of
a lady i.e. P.W.1 he rushed towards her house where he saw the
appellant standing outside his house and that the door was closed.
According to him, when he asked the appellant as to what happened, the
appellant, who was holding a knife in his hand, informed P.W.2 that he
gave one blow to his son which made him sleep for ever. P.W.2 also
stated that P.W.1 Tulsabai opened the door which was latched from
inside and she ran outside the house. P.W.2 was declared hostile. He
admitted that the appellant was holding a knife in his hand and was
standing outside the house.
7. P.W.4, the postmortem doctor, who issued Exhibit 51-postmortem report
deposed that the deceased sustained one stab injury of 1½ inch in
length and 2 inches in depth which was perforated up to intestine.
According to P.W.4 on internal examination he found that the abdominal
wall was ruptured due to stab on right lateral part of abdominal wall
and that peritoneal cavity was full of blood, the liver was also found
ruptured below the stab injury. As per the opinion of P.W.4, the
probable cause of death was the injury to the vital organ like liver
which caused internal haemorrhage and shock. To the suggestion put to
P.W.4 that the injury mentioned in postmortem report could have been
caused by the knife of 19 cm. in length and 4 cm. in width, the same
was denied by him.
8. Whatever be the subsequent versions made by P.Ws 1 and 2 before the
Court, it came out in evidence that at the time of occurrence there
were only three persons, namely, the appellant, P.W.1 and the
deceased. The admission of P.W.1 that the deceased had drinking habit
and that whenever he was under the influence of liquor he used to
create a ruckus in the house was a factor which had to be necessarily
borne in mind while considering the offence alleged and proved against
the appellant. Though there is variation in the version of P.W.1, as
between the complaint and her evidence before the Court, going by the
evidence available on record, the conclusion of the Trial Court that
the appellant was responsible for the death of the deceased is
unassailable. Apart from the exclusive presence of the appellant with
a weapon in his hand as deposed by P.W.2, the other two persons were
the deceased and P.W.1. The said conclusion of the Trial Court as well
as that of the High Court cannot be doubted. Further the report of the
chemical analysis Exhibits 35 and 36 also disclosed that the blood
stained clothes of the appellant matched with the blood group of the
deceased which were found on the clothes of the deceased himself.
Therefore, there was conclusive proof to hold that it was appellant
who was responsible for the single stab injury inflicted upon the
deceased with the aid of the knife seized under Exhibit-47. Having
reached the above conclusion, the only other question raised was as to
whether there is any mitigating circumstance in order to hold that the
offence would fall under any of the Exceptions to Section 300 of IPC
to state that it was a case of culpable homicide not amounting to
murder.
9. Going by the narration of the facts disclosed, there was nothing to
suggest that there was any premeditation in the mind of the appellant
to cause the death of the deceased. Taking into account the statement
of P.W.1 that the deceased was under the influence of liquor and that
whenever he was under the influence of liquor he used to throw the
household articles and create a ruckus in the house was a factor which
created a heat of passion in the appellant who as a father was not in
a position to tolerate the behaviour of his son whose misbehaviour
under the influence of liquor was the torment. Therefore, unmindful of
the consequences, though not in a cruel manner the appellant inflicted
a single blow which unfortunately caused severe damage to the vital
organs resulting into the death of the deceased. In such
circumstances, as rightly contended by learned counsel for the
appellant, we are convinced that the offence alleged and as found
proved against the appellant can be brought under the First Part of
Section 304 of IPC. Accordingly, while affirming the conviction of the
appellant, we are only altering the same as falling under Section 304
Part I of IPC in place of Section 302 of IPC. As far as the sentence
imposed on the appellant in as much as we reached at the conclusion
that the conviction should fall under Section 304 Part I of IPC,
taking note of the sentence already undergone, we find from the
Imprisonment Certificate that the appellant is in jail from 12.07.2004
and he is 60 year old, P.W.1, who is the wife of the appellant, is
left all alone and the appellant having suffered imprisonment for more
than eight years, we hold that the sentence already undergone would be
sufficient punishment apart from the fine imposed with the default
sentence as per the judgment of the Trial Court and as affirmed by the
High Court. The appeal stands partly allowed with the above
modifications of the charge and the sentence imposed on the appellant.
10. In the light of the modification of the sentence, the appellant shall
be set at liberty forthwith, if not required in any other case.
.……….……….…………………………...J.
[T.S. Thakur]
....…………….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
October 05, 2012
