ssp 1 APEAL 640 of 2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.640 OF 2005 Narsinh Arjun Jadhav, Age 43, Occu – Labourer, Add – Room No.133, Shivshahi Chawl, Sanjay Nagar Zopadpatti, Marol Pipe Line, Andheri (E), Mumbai – 400 059 Presently at Kolhapur Prison .....Appellant Versus The State of Maharashtra ..... Respondent Mr.Yug Mohit Chaudhary, for the appellant. Mrs.V.R.Bhosale, APP, for the respondent State. CORAM :P.B.MAJMUDAR & MRS.MRIDULA BHATKAR, JJ. DATE : 07th JULY, 2011 ORAL JUDGMENT ( PER MRS.MRIDULA BHATKAR, J.) : - 1. This appeal is preferred by the appellant/accused against the judgment and order of conviction passed by the learned Sessions Judge, Greater Bombay, in Sessions Case No.345 of 2004 dated 11-05-2005. The accused is held guilty for the offence of murder and is convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced him to suffer life imprisonment. 2. The prosecution case in a nutshell, is as under : - The accused on the night intervening 11-01-2004 at about ssp 2 APEAL 640 of 2005 23.30 hrs., to 2.45 hrs., in the locality of Shivshahi Chawl, Sanjay Nagar Hutments, Near Saibaba Temple, Marol Pipe Line, Andheri (E), Mumbai – 400 059, committed the murder of deceased Rajesh Kanojiya, who was also residing in the same locality. On the fateful night, water from the municipal tab was flowing and wasted, therefore, the accused abused the deceased as he was responsible for the same. The deceased in response though, was apologetic in the beginning; he got angry and asked the accused to come out of the house and accept his challenge. The accused enraged on hearing this challenge and came out with kitchen knife and stabbed the deceased. The deceased unsuccessfully tried to ward off the said assault, got injured and started running. The accused chased him and gave stab blow on his back and therefore, the deceased fell down, but the accused stabbed him in the chest. The deceased succumbed to the injuries and died. The said incident was witnessed by other slum dwellers in the locality. A complaint (FIR) was immediately lodged by one Pappu Ramsurat Rajbhar (P.W.1) at Sahar Police Station, Mumbai and it was registered at C.R.No.14 of 2004. The police sent deadbody of the deceased for post-mortem. Thereafter, police recorded the statements of the witnesses and drew panchanama. After completion of investigation, charge sheet was filed against the accused. The case was committed to the Court of Sessions, Greater Bombay, for trial. The accused was charged ssp 3 APEAL 640 of 2005 and tried for the offence punishable under Section 302 of Indian Penal Code on 20-10-2004, which is at Exh.2. The trial concluded in conviction against the accused. Being aggrieved by the said judgment and order, the above appeal is preferred by the accused. 3. Learned counsel for the appellant opened his submissions with a specific stand that the appellant/accused is not challenging the actual assault made by the accused and the deceased died due to stab injuries which were inflicted by the accused to the deceased on the date of the incident. Learned counsel for the appellant submitted that the accused since his arrest on 12-01-2004 is in the prison and has undergone seven and half years of sentence. Learned counsel for the appellant confined his submissions to only one aspect i.e. the case of the prosecution, even if as it is taken, does not constitute an offence punishable under Section 302 of Indian Penal Code i.e. murder, but it falls under the exceptions covered under Section 300 of the Indian Penal Code, as it is a culpable homicide not amounting to murder. While elaborating this submission, learned counsel for the appellant wants us to take into consideration number of factors i.e. the cause of the quarrel was trivial; social and economical background of the accused; absence of enmity and sudden provocation etc. He drew our attention to the evidence of eye witnesses Pappu Ramsurat Rajbhar (P.W.1) and Shantidevi Rammurat Rajbhar (P.W.3). Learned ssp 4 APEAL 640 of 2005 counsel for the appellant argued that both these witnesses have deposed that there was an incident of over flowing and wastage of water in their locality and accused was abusing the deceased for the said reason. As per the FIR (Exh.8) dated 12-01-2004, the deceased tendered apology to the accused. He pointed out that deceased challenged the accused that ‘he should come out’ and therefore, accused came out of the house armed with kitchen knife. Learned counsel for the appellant further submitted that the accused no doubt, became angry because of this quarrel between him and deceased, however, there is no evidence adduced by the prosecution in respect of any previous enmity between them. He pointed out that there is no evidence to show that the accused has planned or it was a premeditated attack on the deceased. He relied on Exception (1) and (4) to Section 300 of Indian Penal Code. He submitted that considering the evidence of the prosecution, benefit of the exceptions (1) and (4) is required to be given to the accused. The present case squarely falls under these exceptions. Learned counsel for the appellant in support of his submissions placed reliance on the ruling of the Apex Court in the case of K.M.Nanavati V/s. State of Maharashtra1, on the point of grave and sudden provocation laid down by the Apex Court. 4. Learned counsel for the appellant has placed reliance on 1 AIR 1962 SC 605 ssp 5 APEAL 640 of 2005 the ruling of the Apex Court in the case of V.Sreedharan V/s State of Kerala1, on the aspect of bringing the case under the exceptions of Section 300 and the conviction altered from Section 300 to Section 304 (I) of Indian Penal Code. Learned counsel for the appellant, in so far as Exception (4) to Section 300 of Indian Penal Code is concerned, placed reliance on a ruling of the Apex Court in the case of Surinder Kumar V/s. Union Territory, Chandigarh2. Learned counsel for the appellant placed further reliance on the judgment of the Supreme Court in the case of Raju and Anr. V/s. State of Haryana3 in which case, the ruling of V.Sreedharan V/s. State of Kerala4 is followed. 5. Learned APP on the other hand, submitted that considering the nature of the offence, the act of the accused is a murder which is punishable under Section 302 IPC. She submitted that though there is grave and sudden provocation, the act committed by the accused by inflicting three blows with knife amounts to cruel or unusual act. It is submitted that the accused after inflicting first blow, has chased the deceased upto certain distance and then again stabbed the deceased. This act of chasing and also inflicting three blows, does not allow to bring the case under Section 304 Part I of the IPC. In support of her submissions, 1 AIR 1992 SC 754 2 (1989) 2 SCC 217 3 (2010) 3 SCC 235 4 1992 (3) SCC 21 : 1992 SCC (Cri) 952 ssp 6 APEAL 640 of 2005 she placed reliance on a ruling of the Apex Court in the case of Imtiaz and Anr. V/s. State of Uttar Pradesh1 wherein it was held that 15. For taking the benefit of the sudden provocation under Exception 1 to Section 300 IPC, it was incumbent upon the appellants to prove beyond doubt that the complainant or his brothers abused or used any other provocative words which were sufficient to provoke a reasonable person in ordinary circumstances. The appellants failed on this count also to prove that the complainant or his companions abused them or used provocative words as aforementioned. We therefore, hold that the case does not fall under Exception 1 of Section 300 IPC. 6. Learned APP has also relied upon a judgment of this Court in the case of Manik s/o Ganpatrao Talwade V/s. State of Maharashtra.2 7. We have gone through the evidence led by the prosecution and have perused the documents forming part of the paper-book. The prosecution in order to prove the incident of murder, has examined 12 witnesses, including Investigating Officer and two eye witnesses. The accused was arrested on 12-01-2004. The arrest panchanama (Exh.9), Inquest Panchanama dated 12-01-2004 (Exh.11) were proved by the prosecution through the evidence of Sitaram Andappa Kamble, PW 2. Spot panchanama was drawn in the presence of Ramlal Chandan Vishwakarma, PW 5. On the point of recovery of weapon i.e. knife, recovery panchanama drawn by the police was proved through Panch 1 (2007) 15 SCC 299 2 2009 (2) Bom.C.R. (Cri) 140 ssp 7 APEAL 640 of 2005 witness Pramod Chandrakant Patil, PW 11. On the point of incident of assault, the prosecution has relied on the version of Papu R. Rajbhar, PW 1 and his mother Shantidevi R.Rajbhar, PW 3. These two witnesses, especially Papu Rajbhar, PW 1, were present and have seen the accused armed with knife and stabbing the deceased. The evidence of Papu Rajbhar, PW 1 and Shantidevi PW 3, found to be cogent, credible and trustworthy. The above witnesses, Rammurat Shivnath Rajbhar, PW 4; Sarvanand Kannaswami Nadar, PW 6; Umanath Murari Vishwakarma, PW 7 and Kumar Pushpa Nair, PW 10, are residing in the same vicinity, though have not seen actual assault, they were examined to prove further events and the conduct of the accused and conduct of the eye-witnesses. The learned Sessions Judge have considered the evidence of all these witnesses, their corroboration and has rightly came to the conclusion that the accused is guilty of killing the deceased. 8. We have to answer a short issue whether the act of the accused is murder, which is punishable under Section 302 IPC or a culpable homicide not amounting to murder and be punished under Section 304 Part I IPC. For the better understanding of the submissions of both the sides, the Exceptions (1) & (4) to Section 300 IPC are gainfully reproduced herein under : - Exception 1 – When culpable homicide is not murder – ssp 8 APEAL 640 of 2005 Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos : - First – That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly – That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly, That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation – Whether the provocation was grave and sudden enough to prevent the offence from amount to murder is a question of fact. Exception 4 – 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 or acted in a cruel or unusual manner. Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault. 11. Thus, the facts and evidence needs to be probed. Shortage and wastage of water in the slum area was the cause of sudden and grave provocation. Shantidevi Rajbhar, PW 3 in her examination-in-chief has categorically stated that such type of quarrels in the locality take place every day and therefore, initially she did not pay much attention to it. No evidence is on record to show the previous enmity between the accused ssp 9 APEAL 640 of 2005 and deceased. The incident has happened suddenly and there was no premeditation or any planning to assault or kill the deceased. As per the FIR (Exh.8), the deceased gave call to the accused that he should come out and accept his challenge. The accused who was in the house, came out with a knife and gave a blow of knife, which deceased tried to stop with his hands. However, the blow was given with such a force that it went through the forearm of the deceased and went upto the chest. Thereafter, deceased started running and accused followed and chased him and again inflicted second blow in his back, deceased fell down and accused again stabbed him in the chest. Medical Officer Dr.Prakash Maruti Shinde, PW 9 in examination-in-chief has deposed that one stab wound found in the chest and back each and third one was on the right fore-arm. The Medical Officer opined that the injury which was in the chest, was sufficient in the ordinary course of nature to cause death and the cause of death was shock and hemorrhage due to multiple injuries. 12. At this stage, it would be appropriate to refer to the judgment of the Supreme Court in the landmark case of K.M.Nanavati V/s. State of Maharashtra1. The observations of the Supreme Court in para 85 are as follows :- The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of “grave and sudden” 1 AIR 1962 SC 605 ssp 10 APEAL 640 of 2005 provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S. 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time or otherwise, giving room and scope for premeditation and calculation. 13. While considering the the act and also keeping the ratio of celebrated Nanavati’s case in mind under Exception (1), it was our query to the learned counsel for the appellant that whether a fight or quarrel which has taken place due to water problem, can be construed as a case for grave and sudden provocation. Learned counsel pointed out from the evidence that water problem in the slum area especially in Mumbai, is a routine and every day problem. He relied upon the evidence of eye- witnesses. Undoubtedly, it was a sudden provocation due to small issue. Further, grave provocation was due to challenge given by the deceased, which finds place in FIR (Exh.8) that ‘you should come out’ (eSnku es vkvks). This challenge aggravated fury of the accused, who is from the slum locality. Thus, it was sudden as well as grave provocation for him. The ssp 11 APEAL 640 of 2005 accused thereafter, came out of the house with kitchen knife. The weapon which was used to kill the deceased was a kitchen knife, which is easily available generally in every house. The evidence on record shows that the accused lost his self control and has acted in a heat of anger. The Exception (1) to Section 300 if deciphered, the requisite ingredients are fully complied with. 14. The sequence of the incident made us to deliberate on the aspect, whether the act of chasing the deceased by the accused with knife and inflicting more than one blows with knife, would amount to act in cruel and unusual manner or not. At this stage, a reference is again required to be made to the ruling of the Apex Court in the case of Raju and Anr. V/s. State of Haryana1 in which the Apex Court has placed reliance and has referred the ruling in the case of V.Sreedharan V/s. State of Kerala 2 . The observations of the Supreme Court reads as follows : - The Supreme Court in para No.4, observed as follows : 4. We have heard learned counsel for the parties and we are of the view that in the facts and circumstances of this case, the offence committed by the appellant falls under section 304, Part I. Although the High Court accepted the contention that sheer impudence on the part of the deceased in kicking food on an auspicious day could have provoked the appellant but the High Court went further and held that since the appellant ran after Peethambaran for about 81 feet and gave 1 (2010) 3 SCC 235 2 1992 (3) SCC 21 : 1992 SCC (Cri) 952 ssp 12 APEAL 640 of 2005 him fatal injury by stopping him on the road, the provocation which the appellant got as a result of the kitchen incident could not have continued due to time lapse. We are of the view that the High Court has not appreciated the sequence in the proper perspective. The whole incident beginning from the kitchen and ending on the road was one continuous sequence. We are of the view that the single dagger blow given by the appellant to Peethambaran was as a result of provocation which he got in the heat of passion upon a sudden quarrel and he is guilty of culpable homicide not amounting to murder. 16. In the said case, the accused has caused death of deceased after chasing him about 81 feet and gave a blow of dagger. There was grave and sudden provocation as deceased kicked the food on the auspicious day, which led provocation to the accused, who ran after him for about 81 feet and gave a fatal blow with a dagger. These act of chasing is to be construed as one sequence and giving blow is construed one continuous incident, which has taken place in the heat of anger i.e. in continuous sequence of provocation which is not interrupted or discontinued. In the present case, there was a sudden provocation which led the accused to loose his mental balance. There is no such evidence to the effect that the accused got provoked and then subsequently, he was cooled down and there was no any other incident or quarrel or provocation and after cooling down, he suddenly again provoked and chased the deceased and killed him. Thus the provocation is due to a ssp 13 APEAL 640 of 2005 particular cause and its degree remained the same. While assessing the continuity of the provocation, we also have to take into account the duration of the incident. The incident of quarrel, abuse, taking knife, giving blow to the deceased, chasing the accused and immediately giving blow, these all events or actions on the part of the accused, have taken place one after the other and they all undoubtedly form one act of assault. 15. The another aspect before us is that the accused had inflicted not a single blow, but more than one blow. On this point, learned APP placed reliance in the case of Imtiaz and Anr. V/s. State of Uttar Pradesh1. In the said case, the Supreme Court has denied the relief to the accused and held that the case does not cover under Exception (1) and (4) of Section 300 of IPC but was a case under Section 302 read with Section 34 IPC. However, in the said case, murder was committed by the accused where the act was premeditated and was not sudden provocation. The accused arrived at the spot armed with deadly weapon and their conduct shows that they reached to the spot with definite intention and therefore, plea of the accused was denied and they were held guilty under Section 302 read with Section 34 IPC. 14. In the case of Surinder Kumar V/s. Union Territory, Chandigarh2, it was held by the Supreme Court as follows : 1 (2007) 15 SCC 299 2 (1989) 2 SCC 217 ssp 14 APEAL 640 of 2005 7. To invoke Exception 4, the above requirements must be satisfied, namely (1) it was a sudden fight; (2) there was no premeditation; (3) the act was done in a heat of passion; and (4) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. 16. The reliance placed by the learned APP in the case of Manik s/o Ganpatrao Talwade V/s. State of Maharashtra,1 infact is not helpful to the prosecution. In that case, there was no premeditation between the accused, but they shared common intention which developed on the spot. The accused gave single blow indicates that he did not take undue advantage and hence, the Exception 4 to Section 300 is attracted. The conviction in the said case, was altered from Section 302 read with Section 302 to Section 304 Part I read with Section 34 IPC. 18. Considering the aforesaid aspect and the provisions of law, especially the aforementioned Exceptions, we are of the opinion that the case of the accused falls within Exceptions (1) and (4) to Section 300 IPC. 1 2009 (2) Bom.C.R. (Cri) 140 ssp 15 APEAL 640 of 2005 Considering the mitigating circumstances and the manner in which the incident has taken place, it is the fit case to bring down the sentence from Section 302 IPC to Section 304 Part I IPC. Section 304 Part I provides punishment of imprisonment for life or imprisonment for 10 years and fine. The appeal is accordingly partly allowed and the sentence recorded by the learned Sessions Judge is altered to Section 304 (I) of the Indian Penal Code. The accused is held guilty for the offence punishable under Section 304 Part I of Indian Penal Code and is sentenced to undergo rigorous imprisonment for 10 years. The order of the learned Sessions Judge in respect of fine amount and in default of payment of fine amount, is confirmed. The accused has undergone 7 and half years of imprisonment and is in jail since 12-01-2004. He is entitled to set off under Section 428 of Cr.P.C. ( MRS.MRIDULA BHATKAR, J. ) ( P.B.MAJMUDAR, J. )