[email protected] S/O. Ganpat ... vs The State Of Maharashtr Thr. ...
2021 Latest Caselaw 17623 Bom

                                                1                               apeal-608-18j.odt



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

                        CRIMINAL APPEAL NO. 608 OF 2018

  Machhindra @ Avinash S/o. Ganpat Teltumde,
  Aged about 42 years, Occ. Private Service,
  R/o. Dream Colony No. 5, Quarter No. 54(A),
  Butibori, Nagpur.                                                       . . . APPELLANT

                         ...V E R S U S.

  The State of Maharashtra through
  Police Station Officer,
  Police Station Butibor, Dist. Nagpur.                               . . . RESPONDENT

 ------------------------------------------------------------------------------------------------
 Shri R. M. Daga, Advocate for the appellant.
 Shri T. A. Mirza, A.P.P. for respondent/State.
 -----------------------------------------------------------------------------------------------
                               CORAM:- M. S. SONAK AND
                                       P. V. GANEDIWALA, JJ.

RESERVED ON DATED :- 15.12.2021

PRONOUNCE ON :- 18.12.2021

JUDGMENT (PER: M. S. SONAK, J.):-

1. Heard Shri R. M. Daga, learned counsel for the appellant,

and Shri T. A. Mirza learned counsel for respondent/State.

2. The challenge in this appeal is to the judgment and order

dated 19.06.2018 made by learned Principal District and Sessions

Judge, Nagpur in Sessions Trial No. 513/2014 convicting the appellant

for the offense under Section 302 of the Indian Penal Code and

sentencing him to suffer life imprisonment and to pay a fine of Rs.

2 apeal-608-18j.odt

5000/-, in default to suffer rigorous imprisonment for six months.

3. The prosecution version is that there was some dispute

between the families of the deceased-Sudhir and the appellant-

Machhindra over their children's clothing. Therefore, on 12.05.2014,

Machhindra came to Sudhir's house and enquired with Sudhir's wife

Kalpana (PW1) whether Sudhir was at home and if so to send Sudhir

out. After Sudhir came out, there was a quarrel between Sudhir and

Machhindra on the road and Machhindra murdered Sudhir by

inflicting no less than eight grievous injuries with a knife that he had

carried with him. According to the prosecution, this murderous assault

was witnessed entirely by Shubhangi (PW2), the daughter of Kalpana's

sister, and partly by Adesh (PW3), Kalpana, and Sudhir's son.

4. Shri Daga, learned counsel for the appellant submitted that

the prosecution has failed to prove beyond reasonable doubt that the

appellant was indeed the author of the crime. He submitted that

Adesh (PW3) has not witnessed the incident and Shubhangi (PW2) is

not a reliable witness. He submitted that the spot panchnama does not

refer to Bhushan Popali's (PW4) house at all though Shubhangi (PW2)

claims to have witnessed the incident from the terrace of his house.

There is no evidence on record to establish that the incident could be

seen from the terrace of Bhushan Popali's (PW4) house. There is

3 apeal-608-18j.odt

evidence about the injuries sustained by the appellant and Shubhangi

(PW2), who claims to be an eyewitness, failed to give any satisfactory

account about the genesis of the incident and these injuries. He

submitted that learned Sessions Judge has also totally ignored

evidence of Dr. Harshda (PW10) about the injuries sustained by the

appellant on his person. Shri Daga, based on all these, submitted that

it is impossible to say that the prosecution, in this case, has established

beyond reasonable doubt the involvement of the appellant in the

crime.

5. Shri Daga in the alternate submitted that evidence on

record does not make out a case under Section 302 of the IPC. He

submitted that there is a clear time gap between Sudhir going out to

meet the appellant and the alleged assault by the appellant on Sudhir.

He submitted that there is clear evidence about a scuffle between the

two. He submitted that there is evidence about injuries sustained by

the appellant during the scuffle. He submitted that the so-called

motive, in this case, is too trivial to warrant any serious consideration.

He submitted that there is no evidence of pre-meditation. He

submitted that evidence on record, at the highest, points out to sudden

fight in the heat of passion and upon a sudden quarrel. He submitted

that there is no evidence about the appellant having taken undue

advantage and acted cruelly or unusually. He submitted that intention

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to commit death was singularly absent and therefore, and in the

alternative, a punishment under Section 304, Part-II of the IPC and not

under Section 302 of the IPC could have been imposed.

6. Shri Daga relied on the case of Atul Thakur Vs. State of

Himachal Pradesh [(2018) 2 SCC 496] to contend that repeated eight

knife blows by the accused resulting in the death of the deceased is not

sufficient for not to convert the conviction under Section 302 of the

IPC to that under Section 300, Part-II of the IPC. He relied upon the

case of Sukhbir Singh Vs. State of Haryana [(2002) 3 SCC 327] and

Gali Venkataiah Vs. State of Andhra Pradesh [(2008) ALL MR (Cri)

561 (S.C.)] to submit that in circumstances similar to those in the

present case, the Hon'ble Supreme Court convicted the accused under

Section 304 instead of Section 302 of the IPC.

7. Shri Daga also relied upon the case of Vijay Ramkrishan

Gaikwad Vs. State of Maharashtra [(2012) 11 SC 592] to submit that

merely because the accused might have gone to the house of the

deceased armed with a knife, it is not sufficient to sustain a conviction

under Section 302 instead of Section 304 of the IPC. He also relied

upon State of Madhya Pradesh Vs. Ramniwas [2018 All SCR (Cri)

362], Suresh Maruti Shinde (Waikar) Vs. State of Maharashtra [2018

All MR (Cri) 3328] and Somling Ramanna Patrigida & Ors. Vs. State of

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Maharashtra [2012 All MR (Cri) 1577] to submit that failure to

explain the injuries on the person of the accused amounts to

suppression of genesis of the offense and this aspect is to be taken into

account for determining whether the case of the accused falls within

Exception 4 to Section 300 of the IPC.

8. Shri Mirza, learned A.P.P. defended the impugned

judgment and order based on reasoning reflected therein. He

submitted that this was a case of pre-meditation because otherwise

there was no reason for the appellant to go to the house of the

deceased armed with a dangerous weapon i.e. knife. He submitted

that there is no evidence about any sudden fight in this case. He

submitted that the appellant, in this case, has inflicted no less than

eight injuries on the person of the deceased with the knife, and out of

these three injuries proved to be fatal injuries. Based on the medical

evidence on record, Shri Mirza submitted that this is clearly a case

where the appellant took undue advantage of the situation and acted

most cruelly and unusually. Therefore, submitted that this is a case

where the prosecution has proved beyond reasonable doubt its case

and further, the evidence on record does not warrant the conversion of

the conviction under Section 302 of the IPC to Section 304 of the IPC.

He relied on the case of Pulicherala Nagaraju @ Nagaraja Reddy Vs.

State of A.P. [(2006) 11 SCC 444] in support of his submission.

6 apeal-608-18j.odt

9. The rival contentions now fall for our determination.

10. In this case, there is no doubt, whatsoever about the death

of the deceased being homicidal. The oral evidence and the

documentary evidence in the form of post-mortem report etc. leave no

manner of doubt that the deceased died of the eight stab injuries

inflicted upon him on 12.05.2014 at or about noon. Therefore, this

aspect of the death being homicidal has been proved beyond

reasonable doubt by the prosecution.

11. According to us, there is ample evidence on record that

establishes that the appellant, has inflicted these stab injuries on the

deceased on 12.05.2014 at about noon resulting in his demise. The

learned Sessions Judge has quite correctly marshaled the evidence to

evaluate the same and has found that the appellant was the author of

the crime. This finding warrants no interference in this appeal.

12. Even, we have carefully evaluated the evidence on this

aspect independently, and see no good reasons to take a different view

in the matter. There is direct evidence and medical evidence to

corroborate the same, assuming that such corroboration was necessary.

We refer to this material in brief to sustain this finding.

13. Kalpana (PW1), wife of the deceased, has deposed about

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how the appellant came to call her husband Sudhir at about noon on

12.05.2014, stating that he had some urgent work with Sudhir. She

then woke up Suhdir and after Sudhir went out, she resumed her

activities in the kitchen. She then came out after she heard a noise of

quarrel from outside and when her son Adesh (PW3) told her that

there was a quarrel involving her husband Sudhir and the Appellant.

She then rushed on the road and saw her husband Sudhir lying in

front of Shri Popali's house. She even saw the appellant standing there

but, the appellant fled away after she pelted a stone at him. She then

took her husband to Rachana Hospital but, the Doctor declared him

dead on arrival. Kalpana (PW1) deposed to the incident in which the

appellant's wife taunted her daughter Sharddha about wearing socks in

summer. She stated that there was a quarrel and one Shri Shende

from the colony pacified both the parties and resolved the quarrel. She

even stated that the appellant carried a grudge and therefore,

murdered her husband Sudhir.

14. Subhangi (PW2) was the daughter of Kalpana's sister and

was staying with Kalpana(PW1) during the summer vacation. She

deposed that she knows the appellant, who was residing in the same

colony, and the appellant on 12.05.2014 between 11.30 to 11.45 a.m.

came in front of their house. Shubhangi (PW2) has deposed that the

appellant inquired about the deceased being at home and upon being

8 apeal-608-18j.odt

told that he was sleeping told Kalpana (PW1) that he had urgent work.

Kalpana (PW1) woke up Sudhir, who then went to talk with the

appellant on the road.

15. Subhangi (PW2) has deposed that since there was a

dispute between her family and family of the appellant, she and Adesh

(PW3)- son of the deceased and Kalpana went to the terrace of the

house of Bhushan Popali to watch what would happen. She deposed

that first, they went to the terrace of the house of Suresh Gundala,

which is adjacent to the house of Bhushan Popali from there went

directly to the terrace of Bhushan Popali, which was attached.

16. Shubhangi (PW2) then deposed that she and Adesh (PW3)

were watching the events develop and saw that the appellant was

talking to the deceased in loud voice and thereafter, a scuffle took

place between both of them. Upon seeing this, Adesh (PW3) ran down

the stairs to report this to his mother Kalpana. Shubhangi (PW2)

stated that she was standing on the terrace watching the events unfold

and she saw the appellant push the deceased due to which the

deceased fell to the ground. Shubhangi (PW2) then deposed that the

appellant gave knife blows to the deceased upon his chest and

stomach. She further deposed that upon seeing this, she too ran down

the stairs and went near the spot, where the deceased was lying.

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Kalpana (PW1) and Adesh(PW3) were also reached the spot shouting

and, the appellant thereupon fled away.

17. Shubhangi (PW2) also deposed about the quarrel between

Kalpana and the wife of the appellant over Sharddha wearing socks

during summer. She also deposed about the intervention of Shri

Shende in resolving this dispute and pacifying them both. Shubhangi

(PW2) even identified the knife used in the incident.

18. There is nothing in the cross-examination of Shubhangi

(PW2) sufficient to make any dent in her clear and cogent deposition

about the appellant being the author of the crime. Shubhangi (PW2)

is an eye-witness to the incident and her evidence inspires confidence.

Her evidence is corroborated by the testimony of Kalpana(PW1) and

Adesh (PW3), who witnessed at least a part of the incident. The

prosecution also examined Bhushan Popali (PW4) and his evidence

also supports Shubhangi's (PW2) version about access to the terrace of

Popali's house through the terrace of Suresh Gundala's house.

Bhushan Popali (PW4) also supports Shugbhangi (PW2) and Adesh's

(PW3) version of being able to see the spot of the incident from the

terrace of his house.

19. If the spot of the offense panchnama and sketch is perused

then, there is a clear reference to Bhushan Popali's house. Simply

10 apeal-608-18j.odt

because there is no icon to indicate the house of Bhushan Popali in the

sketch attached to the spot of offense panchnama, there is no ground

to infer any lapse in the investigation or to suggest that no such house

exists. All this material has been quite correctly assessed by the

learned Sessions Judge. Upon independent assessment by us, we are

quite satisfied that the prosecution has proved beyond reasonable

doubt the complicity of the appellant in the homicidal death of the

deceased in the present matter.

20. In this case, though Shri Daga is somewhat justified in

contending that the learned Sessions Judge has ignored the testimony

of Dr. Harshda (PW10) concerning the injuries on the person of the

appellant, this is certainly not a case where the prosecution has

withheld any evidence or suppressed the genesis of the offense. The

prosecution examined Dr. Harshda (PW10), who deposed about the

contusion with suspected fracture over the right-hand shift ulna to the

appellant. She stated that the injury was simple in nature and was

caused by a hard and blunt object. She also deposed that these

injuries were seven and half hours old when she examined the

appellant on 12.05.2014 at about 7.45 p.m.

21. Dr. Harshda (PW10) deposed that injury on the person of

the appellant was possible by way of jerk while he was assaulting some

11 apeal-608-18j.odt

person with the right hand and with a knife. In her cross-examination,

she admitted that such injury is possible by a blunt and hard object.

She also admitted that such injury is possible if the person falls on the

ground touching the right-hand shift ulna to the ground. She also

admitted that such injury is possible if the appellant was assaulted

with a stick on the right-hand shift ulna.

22. The testimony of Dr. Harshada (PW10), no doubt,

establishes that some simple injuries were found on the person of the

appellant. Her evidence may also suggest that such injuries have their

genesis to the incident that took place at about noon on the said date,

in which the deceased was killed by the appellant. However, this

evidence of Dr. Harshda (PW10) also suggests that the said injuries

were a result of a jerk suffered by the appellant when he was

assaulting some person with a knife held in his right hand. This

evidence also establishes that such injuries were possible if the

appellant were fell on the ground touching his right-hand shift ulna to

the ground. Therefore, the evidence of Dr. Harshda (PW10) neither

detracts from the prosecution version nor based upon the same,

Shubhangi (PW2) can be styled as an unreliable witness as suggested

by Shri Daga.

23. In the case of Somling Ramanna Patrigida (supra), the

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Division Bench of this Court was concerned with the assault on one

Nagappa by several persons, and the prosecution alleged that Somling

gave a knife blow to Nagappa and pulled out his intestine. The

Division Bench found that several injuries were noticed on the person

of the accused himself and the prosecution offered no explanation for

the same. The Division Bench found that thought the injuries

sustained by some of the accused persons were neither simple nor

superficial but, were quite grievous, and yet there was no explanation

from the prosecution about the same. It is in these circumstances, the

Division Bench concluded with the defense of the accused persons that

they acted in self-defense or a free fight deserved to be accepted and

the Exception 4 of Section 300 of the IPC is extended to them.

24. In the present case, the appellant, has neither raised any

plea of self-defense nor does the evidence on record suggest even

remotely that the appellant may have acted in self-defense. This is

also not a case of any free fight and such a plea was not even advanced

before us. Besides, Dr. Harshda (PW10) has clearly deposed that

injuries were simple and therefore, the decision of the Hon'ble

Supreme Court in the case of Lakshmi Singh Vs. State of Bihar [(1976)

4 SCC 394] would apply. Therefore, the decision in Somling Ramanna

Patrigida (supra) can be of no assistance to the appellant in this case.

13 apeal-608-18j.odt

25. In Suresh Maruti Shinde (supra), the Division Bench found

that serious injuries were suffered by the accused persons, and even

though the eye-witnesses claimed to have seen the entire incident from

beginning to end and there was no whisper to explain how such

serious injuries were suffered by the accused person. It is in this state

of facts that the Division Bench held that the prosecution suppressed

the genesis and origin of occurrence and therefore, it would not be

safe to rely on the prosecution version. Again, such circumstances, are

not to be found in the present matter.

26. In the case of Khalid Abdul Razak Vs. State of

Maharashtra [2012 All MR (Cri) 2157], again the serious injuries on

the person of the accused were not at all explained by the prosecution

and in this circumstance, the Division Bench ruled that the prosecution

withholding the real genesis could not be ruled out. Ultimately, the

Division Bench converted the conviction from that under Section 302

of the IPC to 304, Part-I of the IPC.

27. In State of M. P. Vs. Ram Niwas (supra), the Hon'ble

Supreme Court found that the prosecution failed to explain the injuries

sustained by the accused persons in the same incident. Based on this,

the Hon'ble Supreme Court observed that there was some doubt cast

on the credibility of the prosecution witnesses. Having regard to the

14 apeal-608-18j.odt

evidence of Dr. Harshda (PW10), no such circumstance exists in the

present case and therefore, there is no reason to question the

credibility of the prosecution version in this matter.

28. Therefore, we are quite satisfied that in this case, the

prosecution has proved beyond reasonable doubt the involvement of

the appellant in the incident that took place on 12.05.2014 at about

noon, resulting in the death of the deceased due to the stab injuries

inflicted by the appellant with the knife which he was carrying, on the

person of the deceased.

29. Therefore, now the only question which remains for

consideration is whether the appellant is entitled to benefit of

Exception 4 to Section 300 of the IPC to hold that though this is a case

of capable homicide, it is nevertheless of culpable homicide not

amounting to murder. This exception provides that culpable homicide

is not murder if it is committed without premeditation in a sudden

fight in the heat of passion upon a sudden quarrel and without the

offender having taken undue advantage of the situation and acted in a

cruel or unusual manner.

30. The evidence on the record does not make out any case

that the appellant had not acted with premeditation. There is no

explanation forthcoming about the appellant carrying with him the

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dangerous weapon like a knife to the house of the deceased, where the

appellant had gone to accost the deceased about the fight that took

place earlier between their wives or between their families. This is a

case, where the appellant went to the house of the deceased and called

him outside the house, and the evidence on record establishes that the

appellant was armed with a knife with which he inflicted no less than

eight stab injuries on the person of the deceased. Based on this

evidence, therefore, we find it difficult to agree with Shri Daga that

there was no pre-meditation involved in this matter.

31. Shri Daga however relied upon the case of Vijay

Ramkrishan Gaikwad (supra) to point out that even in that case, the

accused had carried a knife to the house of the deceased and after an

exchange of abuses leading to a scuffle between the deceased and his

brother on one side and accused and his four accompanied on other,

the accused took out a knife, stabbed and grievously injured the

deceased Pawar.

32. We have carefully perused the ruling in Vijay Ramkrishan

Gaikwad (supra) and according to us, the same will not assist the case

of the present appellant because the position of facts in the said

decision was quite different from the facts proved in the present case.

There was clear evidence about the absence of premeditation and that

16 apeal-608-18j.odt

was a case of a free fight between the two groups and there was

evidence that the accused, as well as the family of the deceased, were

engaged in the business of breeding pigs. There was, therefore,

nothing unusual for them to carry knives with them. Besides, in that

case, the accused inflicted only one knife blow to the deceased and

himself received injuries on his fingers as was certified by Dr. Sushant

Mahale (PW2). Based on this evidence, the Hon'ble Supreme Court

converted the conviction from Section 302 to 304, Part-I of the IPC

33. The evidence on record in this case also establishes that

the appellant took undue advantage of the situation of his having gone

prepared with a knife to confront the deceased on the fateful day. The

evidence on record also establishes that the appellant, in this case,

acted cruelly and unusually. Shubhangi (PW2) has deposed in clear

terms as to how the appellant pushed the deceased on the ground and

after he fell, gave knife blows upon the chest and stomach of the

deceased when he was quite helpless. This evidence is fully

corroborated by the medical evidence, both oral as well as

documentary.

34. Dr. Jaideo Borkar (PW7), who conducted a post-mortem

in this matter has deposed that on external examination, he found the

following injuries on the dead body:-

                                             17                                apeal-608-18j.odt


               "[i]            Stab injury 1 cm x 0.3 cm x bone deep, oblique,

both angle acute, margin clean directing anteroposteriorly, present on left zygomatic area.

[ii] Stab injury 2 cm x 0.5 cm x cavity deep, horizontal, both angles acute, margins clean cut, directing anteroposteriorly, present on left side of chest at 4 th intercostal space just medial to midclavicular line.

[iii] Stab injury 1.5 cm x 0.5 cm x cavity deep, horizontal, both angles acute, margins clean cut, directing anteroposteriorly present on epigastric region of abdomen.

[iv] Stab injury 1.5 cm x 0.5 cm x cavity deep, horizontal, both angles acute, margins clean cut, directing anteroposteriorly present on left lumber region of abdomen.

[v] Stab injury 1.5 cm x 0.5 cm x muscle deep, oblique, both angles acute, margins clean cut, directing lateral to medially present on posterior of left arm, 2 cm above elbow joint.

[vi] Stab injury 2 cm. 0.3 x muscle deep, oblique, both angles acute, margins clean cut, directing posterior to anteriorly, present on exterior aspect of left forearm, 1 cm below elbow joint.

[vii] Stab injury 2.5 cm x 0.7 cm x muscle deep, oblique, both angles acute, margins clean cut, directing posteromedially present on exterior aspect of left forearm, 3 cm above wrist joint.

[viii] Incised wound 3 cm x 0.5 cm x bone deep, vertical, present on dorsal aspect of left hand little finger."

35. Dr. Borkar (PW7) deposed that injury nos. 2, 3, and 4 with

its internal damage mentioned in column nos. 20 and 21 of the post-

mortem report were individually sufficient in the ordinary course of

nature to cause death. He deposed that probable cause of death is an

18 apeal-608-18j.odt

injury to the vital organs. He deposed that injuries in the post-mortem

report with its internal damage could be caused by a knife, which was

attached at the spot and sealed after it was shown to him in the course

of the evidence. He deposed that he had issued the weapon report

after examining and analyzing this knife, which he refers to as 'Gupti'.

36. The injuries suffered by the deceased, in this case, militate

against Shri Daga's contentions about the appellant having taken no

undue advantage or having not acted cruelly or unusually. The

appellant, in this case, inflicted no less than eight injuries on the

helpless deceased after the deceased was put to the ground by the

appellant. The injuries described as numbers 2, 3, and 4 are very

serious and they were inflicted on the vital organs of the deceased. The

weapon of assault is also a dangerous weapon and the appellant

carried this weapon with him when he went to confront the deceased.

Based on all this, we are afraid that the appellant has failed to bring

the case within Exception 4 of Section 300 of the IPC.

37. Shri Daga, however, submitted that even Shubhangi

(PW2) spoke about "scuffle". True, Shubhangi (PW2) did speak about

a scuffle between the appellant and the deceased. Also, this is a case

where some simple injuries were found on the person of the appellant.

However, the evidence on record does not suggest this to be a case of

19 apeal-608-18j.odt

sudden fight in the heat of passion upon a sudden quarrel. In a case

where the assailant seeks to stab his victim, surely, it is not

unreasonable that the victim will offer some resistance. Now, such

resistance again always be styled as some scuffle. Similarly, even if the

accused suffered some simple injuries while his victim is resisting

assault, that by itself, will not be sufficient to either question the

credibility of the prosecution version or to bring the case within

Exception 4 of Section 300 of the IPC.

38. Besides, to bring the case within this Exception, it is not

sufficient that the evidence on record only points to some sudden fight

or sudden quarrel, there is a further requirement of the absence of pre-

meditation and the accused has not taken undue advantage or acted

cruelly or unusually. Unless all these circumstances are cumulatively

established that there is no question of the accused claiming benefit of

Exception 4 of Section 300 of the IPC.

39. In the case of Pulicherla Nagaraju (supra), the Hon'ble

Supreme Court after considering various rulings on the subject,

including that of Virsa Singh Vs. State of Punjab [AIR 1958 SC 465]

has held that the court should proceed to decide the pivotal question

of intention, with care and caution, as that will decide whether the

case falls under Section 302 or 304, Part I or 304, Part II. Many petty

20 apeal-608-18j.odt

or insignificant matters - plucking of a fruit, straying of a cattle,

quarrel of children, utterance of a rude word or even an objectionable

glance, may lead to altercations and group clashes culminating in

deaths. Usual motives like revenge, greed, jealousy or suspicion may be

totally absent in such cases. There may be no intention. There may be

no pre-meditation. In fact, there may not even be criminality. At the

other end of the spectrum, there may be cases of murder where the

accused attempts to avoid the penalty for murder by attempting to put

forth a case that there was no intention to cause death. It is for the

courts to ensure that the cases of murder punishable under section

302, are not converted into offences punishable under section 304 Part

I/II, or cases of culpable homicide not amounting to murder, are

treated as murder punishable under section 302. The intention to

cause death can be gathered generally from a combination of a few or

several of the following, among other, circumstances : (i) nature of the

weapon used; (ii) whether the weapon was carried by the accused or

was picked up from the spot;(iii) whether the blow is aimed at a vital

part of the body; (iv) the amount of force employed in causing injury;

(v) whether the act was in the course of sudden quarrel or sudden

fight or free for all fight; (vi) whether the incident occurs by chance or

whether there was any pre-meditation; (vii) whether there was any

prior enmity or whether the deceased was a stranger; (viii) whether

21 apeal-608-18j.odt

there was any grave and sudden provocation, and if so, the cause for

such provocation; (ix) whether it was in the heat of passion; (x)

whether the person inflicting the injury has taken undue advantage or

has acted in a cruel and unusual manner; (xi) whether the accused

dealt a single blow or several blows. The above list of circumstances is,

of course, not exhaustive and there may be several other special

circumstances with reference to individual cases which may throw

light on the question of intention

40. The Hon'ble Supreme Court in the case of Pulicherala

Nagaraju (supra) noted that the weapon, which the accused was

carrying was dangerous. There was the previous enmity and the

deceased was unarmed, there was no indication of any cause or any

apprehension on the part of the accused that the deceased may attack

him and the stabbing was with great force causing injury on the vital

part of the body, sufficient in the ordinary course of nature to cause

death. Based on all these, the Hon'ble Supreme Court concluded that

the intention to cause death or at all having intention of causing bodily

injury will sufficient in the ordinary course of nature was made out

and therefore, the circumstance to bring the case under Exception 4 of

Section 300 of the IPC did not exist.

41. The decision in Pulicherala Nagaraju (supra) quite entirely

22 apeal-608-18j.odt

supports the contention of Shri Mirza, learned A.P.P. having regard to

similar circumstances that are borne out from the evidence on record

in the present case. Applying the law laid down in Pulicherala

Nagaraju (supra), therefore, we feel that this is not a fit case to extend

the benefit of Exception 4 of Section 300 of the IPC to the appellant in

the present case.

42. The decision in the case of Gali Venkataiah (supra) turns

on the facts which are in no manner similar to the facts of the case

borne out of the evidence on record in the present matter. Similarly,

the facts in Atul Thakur (supra) are also quite different and there was

no evidence whatsoever about pre-meditation. The accused,

immediately after the incident of stabbing showed some contrition

upon recovering his senses and took the deceased to the hospital. The

incident took place when the appellant and the deceased gathered at

the house of one of the accused persons for a drinking party arranged

at the instance of the deceased. All of them consume drinks at the

time of the incident. Quarreling started when the deceased while

smoking blew smoke on the face of the appellant, who got enraged.

The Hon'ble Supreme Court did hold that number of wounds caused

by itself could not be a decisive factor and that all other factors have to

be cumulatively considered. Upon cumulative consideration of all such

factors, the Hon'ble Supreme Court converted the conviction from that

23 apeal-608-18j.odt

under Section 302 of IPC to Section 304, Part-II of the IPC.

43. Sukhbir Singh (supra) also turns on facts that have no

similar facts whatsoever with the facts of the present case. Again, in

this case, there was evidence that after the deceased had fallen down,

the appellant did not inflict any injury on his person, when he was in a

helpless position. There was no evidence of the accused acting cruelly

or unusually. Such circumstances are not found in the present case

concerning the present appellant.

44. For the aforesaid reasons, we see no good reason to

interfere with the impugned judgment made by the learned Sessions

Judge in this case.

45. This appeal is hereby dismissed. There shall be no order

as to costs.

                        (P. V. GANEDIWALA, J)                   (M. S. SONAK, J)




RR Jaiswal