Criminal Appeal No. 1252 of 2005,Criminal Application No. 1638 of 2005

5th December, 2012

Petitioner Counsel: Dr. YUGMOHIT CHAUDHARY
Respondent Counsel: Mr. H.J. DEDHIA

Cases Cited:
Baba @ Gulam Raza Hussain Hadi Tapti Vs. State of Maharashtra and Anr., 2000 ALL MR (Cri) 423 =2000(1) Mh. L.J. 164 [Para 6,11]

JUDGMENT

V. M. KANADE, J. :- 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 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 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] : [2000 ALL MR (Cri) 423]. He invited our attention to paragraph 13 and 13(a) of the said judgment.

7. 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.

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 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, [2000 ALL MR (Cri) 423] (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 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 is definitely a grave provocation."

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 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 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.

4. 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.

Appeal allowed.