Bombay High Court
Prison vs Through Meghwadi Police on 5 December, 2012
Bench: V.M. Kanade, P. D. Kode
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(Appeal 1252 of 2005)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1252 OF 2005
WITH
CRIMINAL APPLICATION NO.1638 OF 2005
Vinod Vasant Mahadik )
Age about 30 years, )
Resident of Laxmi Chawl, )
Chawl No.5, Room No.8, )
Meghwadi, Behind Shramik )
Road, Jogeshwari (East), )
Mumbai - 400 060 )
Presently in Kolhapur Central )
Prison )..Appellant
Versus
The State of Maharashtra )
Through Meghwadi Police )
Station (C.R. No.10 of 2004) )..Respondent
****
Dr. Yugmohit Chaudhary for Appellant
Mr. H.J. Dedhia - APP for the State
****
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(Appeal 1252 of 2005)
CORAM: V.M. KANADE &
P.D.KODE, JJ.
DATE: 5th December, 2012
[ORAL JUDGMENT - PER : V.M. KANADE J]
1. Heard the learned counsel appearing on behalf of the
Appellant and the learned APP for the State.
2.
The Appellant has been convicted by the 4th Ad-Hoc
Additional Sessions Judge, Sewree, Mumbai by his judgment
and order dated 14.11.2005 for the offence punishable under
section 302 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for life and to pay fine amount of
Rs.1,000/- and, in default, to suffer rigorous imprisonment
for six months.
3. The Appellant being aggrieved by the judgment and order
passed by the Trial Court, has preferred this appeal which
was admitted in the year 2005 and is pending since then. The
Appellant is in jail from the date of his arrest and has already
undergone eight years and nine months of actual
imprisonment and if taking into consideration his remissions,
he has actually undergone 11 years and 1 month of
imprisonment.
4. The prosecution case in brief is that the Accused and the
(Appeal 1252 of 2005)
deceased who was his friend were having liquor together and
after they went together, at that time, the deceased made
some unfavourable and uncharitable remarks about the
sister of the accused that his sister was of loose moral
character and having affairs with number of married men.
The accused, as a result of the said statement, which was
made by the deceased, took out a knife and inflicted as many
as nine injuries on various parts of the bodies and as a
result of which, he succumbed to the injuries and died on the
spot.
5. The Trial Court on the evidence adduced by the
prosecution, convicted the Appellant for the offence
punishable under section 302 of the Indian Penal Code.
6. The learned counsel appearing on behalf of the Appellant
submitted that he did not wish to challenge the conviction.
He, however, submitted that the Trial Court has erred in
holding that the accused had committed the offence
punishable under section 302 instead of 304 Part -I. He
submitted that the case of the Appellant would fall under
Exception 1 to Section 300 of the Indian Panal Code. He
submitted that through the Trial Court had recorded a
positive finding that the accused had acted on account of
grave and sudden provocation, did not give a benefit of
Exception 1 to section 300 of the Indian Penal Code to the
(Appeal 1252 of 2005)
Appellant only on the ground that he had inflicted stab
wounds. He submitted that the Trial Court has held that if he
had given one stab blow then his case would fall under the
Exception 1. However, since he had acted in cruel manner
and inflicted nine injuries, he could not get benefit of the said
Exception. He relied on the judgment of the Apex Court in the
case of Baba @ Gulam Raza Hussain Hadi Tapti Vs. State of
Maharashtra and Anr.[2000(1) Mh. L.J. 164]. He invited our
7.
attention to paragraph 13 and 13(a) of the said judgment.
The learned APP for the State, on the other hand, has
vehemently opposed the said submission. He submitted that
the accused had acted in a very cruel manner and after
committing the murder, had decapitated and decimated the
body and kept in a trunk and he was caught while he was
carrying the said dead-body and therefore, the Trial Court was
justified in not giving the benefit of Exception 1 to section 300
of IPC.
8. After hearing both the learned counsel appearing on
behalf of the Appellant and the State at length, we are of the
view that the Trial Court has clearly erred in convicting the
Appellant for the offence punishable under section 302 of IPC
since the argument has been restricted to the sentence which
has been awarded and the fact of homicidal death and assault
of the accused on the deceased is not disputed, it is necessary
to see the correct legal position at this aspect.
(Appeal 1252 of 2005)
9. Perusal of the Exception 1 to section 300 of IPC clearly
reveals that if it is established from the circumstances of the
case that the accused was deprived of his self control on
account of grave and sudden provocation and in that state of
mind he commits the said offence, benefit has to be given to
him and the offence then in such cases would fall not under
section 302, but under section 304 Part I of IPC.
10. The Trial Court has accepted that the deceased, by
making uncharitable remarks against the sister of the
Appellant, had provoked the Appellant and the said
provocation was grave and sudden. The Trial Court,
however, further has observed as under:-
""67. Indeed, it is apparent from the record that,
at the time of commission of crime, the accused
as well as the deceased were under intoxication.
The accused was enraged by the deceased by
saying something about character of his sister.
Therefore, out of anger, the accused assaulted
the deceased knife and inflicted injuries on his
person. If at all, the accused would have
stopped by inflicting one blow of knife, it would
be appropriate to say that, there was no
intention in causing death. However, there were
in all 9 injuries on the person of deceased. Out
(Appeal 1252 of 2005)
of it, the injury no. 3 and 5 had pierced
stomach. The injury no. 4 had pierced lower
lobe of lung and injury no.6,7, 8 and 9 pierced
small intestine and large intestine. Infliction of
number of injuries which are fatal to the life
would not given rise to hold that, those injuries
were caused due to provocation by the deceased.
In such circumstances, it cannot be said that,
only knowledge of causing death by blow of knife
can be attributed to the accused. As such, I do
not think that, there is any substance in the
contention of the Ld. Advocate."
The Trial Court, therefore, was impressed by the fact that
since the Appellant had inflicted more than seven stab
injuries, he would not get the benefit of Exception 1.
11. The Trial Court, in our view, therefore, has committed
error of law, which clearly apparent on the face of record. The
Division Bench of this Court in a similar case in the case Baba
@ Gulam Raza Hussain Hadi Tapti (supra.) has in paragraph
13 and 13A observed as under:
"13. The question which remains is e quantum
of sentence to be awarded to the appellant. We
have mentioned earlier that in the concluding
(Appeal 1252 of 2005)
portion of para 21 of the impugned Judgment the
learned trial Judge has observed thus :-
"Therefore, in the circumstances, it will
have to be accepted that the deceased used
filthy language or abused the accused
concerning female members of the family
and suggestion to ask one to ask his
daughter or wife or mother to do
prostitution
provocation."
is definitely a grave
In our view when the deceased suggested to the
appellant that he should ask his daughter or
wife or mother, to indulge in prostitution, he gave
a very grave provocation to the appellant. If on
the face of this provocation, the appellant
inflicted seven knife blows on him, of which six
were on vital parts of the body. It was
understandable.
13A. It should be borne in mind that when a
person makes an assault as a consequence of a
grave and sudden provocation, he is deprived of
his self-control and is not in a position to weigh
on gold scales the number of blows which he
should inflict. Reason and balance are a post-
mortem phenomena and persons placed in
situations in which the appellant was when he
(Appeal 1252 of 2005)
launched an assault on the deceased, cannot
always be expected to act with it.
This is the rationale why in cases of sudden
provocation, number of injuries are not a crucial
determinative factor in the matter of sentence to
the extent to which, they are in cases where a
cool and calculated assault is made."
Perusal of the said observations and the ratio of the said
judgment, in our view, would squarely apply to the facts of
the present case.
12. The rational behind the said principle enunciated in the
Exception 1 to section 300 of IPC is that if a person as a result
of grave and sudden provocation, looses his self control and
in such a state of mind, he commits an offence, then he is
absolved of the liability which otherwise would entail under
section 300 of committing murder and the act having been
committed while he was deprived of his self control, the case
would fall under section 304 Part -1 of IPC.
13. The conviction of the Appellant, therefore, is altered from
section 302 to section 304 Part I. The Appellant has already
undergone more than 8 years and 9 months and if actual
remissions is taken into consideration, he has undergone 11
years and 1 month of imprisonment. Taking into
(Appeal 1252 of 2005)
consideration the peculiar facts and circumstances of the
case, it would be appropriate if the Appellant is sentenced to
suffer R.I for 10 years. Hence the following order is passed:
1. Criminal Appeal is allowed.
2. The Judgment and Order passed by the Trial Court is
quashed and set aside to the extent of Appellant's
conviction under section 302 of the Indian Penal Code.
The Appellant, therefore, is acquitted of the offence
punishable under section 302 and he is convicted for the
offence punishable under section 304 Part 1 and
sentenced to suffer RI for 10 years. The Appellant has
already under gone 8 years and 9 months sentence.
Taking into consideration his remissions, he has actually
undergone 11 years and 1 month of imprisonment.
3. The Appellant be released forthwith, unless his presence
is required in any other case.
5. Fine amount, if any paid, be refunded to the Appellant.
In view of disposal of the Criminal Appeal, Criminal
Application for bail does not survive and is, accordingly,
disposed of.
(P.D. KODE J.) (V.M. KANADE J.)
V.A. Tikam
