PREMCHAND versus THE STATE OF MAHARASHTRA
[2023] 2 S.C.R. 119, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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PREMCHAND
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal No. 211 of 2023)
 MARCH 03, 2023
[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]
Penal Code,1860 – ss. 300,302 307 and 304 – The trial Court
convicted the appellant for the offence of murder of the victim-
deceased and attempt to murder three others – The judgment of the
trial Court was challenged by the appellant by preferring appeal
before the High Court – The High Court upheld the judgment of
trial Court – On appeal, held: The trial court and the High Court
did not consider written Statement (Ext. 96) of the appellant u/s
313(5) Cr.P.C. in its entirety, non-consideration of the same has
made the conviction vulnerable to interference – Trial Court failed
to appreciate the defence version as spelt out in the Ext.96, which
appears plausible – There is a missing link in the prosecution case
as to the motive of the appellant to inflict the blow on the victim –
Reading of the contents of Ext.96 does evince an act of retaliation
spurred by sudden provocation resulting in a quarrel as well as a
scuffle which resulted into death of the victim and others injured –
The circumstances clearly negate any suggestion of premeditation
in mind – The trial court lacked in objectivity by not examining the
facts and circumstances as to whether the situation was such as is
likely to reasonably cause an apprehension in the mind of the
appellant that there was imminent danger to his body, of either death
or grievous hurt being
caused to him, if he did not act in private
defence – To impute intention to cause death or the intention to
cause that particular injury, which proved fatal, in circumstances
of the case considered as unreasonable – Thus, appellant is entitled
to the benefit of Exception 4 to s. 300, IPC – Conviction for murder
and sentence of life imprisonment set aside – Appellant convicted
u/s. 304, Part II, IPC.
 Code of Criminal Procedure,1973 – s.313 – Object and scope
discussed.
[2023] 2 S.C.R. 119
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[2023] 2 S.C.R.
Allowing the appeal, the Court
HELD:1. This is a case where it does not appear from the
records that the written statement (Ext. 96) engaged the attention
of both the trial court as well as the High Court. Applying the
principles of law, there can be no quarrel that non-consideration
of Ext. 96, to a limited extent, in relation to recording of
conviction and consequently imposition of sentence, has rendered
it vulnerable to interference. [Para 18][129-C-D]
2.By not looking into Ext. 96 with the other evidence on
record, what the trial court omitted to consider is, whether the
prosecution was justified in claiming that the offensive act
amounted to culpable homicide amounting to murder or whether
the appellant being guilty of culpable homicide not amounting to
murder, deserved punishment under section 304, Part II, IPC.
True it is, the trial court considered the arguments advanced on
behalf of the appellant that (i) he had “exercised his right of private
defence”, and though (ii) “he exceeded such right”, (iii) the present
case at the most would fall under section 304, Part II, IPC; but, it
proceeded to overrule such arguments by relying on the oral
testimony of P.W.s 2 to 4. In the process, the trial court failed to
appreciate the defence version as spelt out in Ext.96, which
appears to us to be plausible. Reading Ext.96 as it is, this Court
found it probable that there could have been provocation at the
instance of
the victim, who allegedly indulged in spitting on the
appellant coupled with verbal abuse, whereafter P.W.2 and later
P.W.s 3 and 4 sprang into action, resulting in a scuffle where both
parties indulged in inflicting injuries on each other resulting in
an unwanted loss of life. Regrettably, pointed attention of the
High Court does not appear to have been drawn to Ext.96 by
counsel on behalf of the appellant. [Paras 20 and 21][129-H; 130-
A-E]
3. Though there is no specific admission by the appellant
that he had stabbed the victim or the other injured witnesses,
reading of the contents of Ext.96 does evince an act of retaliation
spurred by sudden provocation resulting in a quarrel as well as a
scuffle which ultimately, most unfortunately, cost the victim his
life and left some others injured. The appellant too sustained
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injuries in the scuffle and there is evidence on record that one of
the injuries was grievous, yet, the criminal law was surprisingly
not set in motion to bring to book those responsible for inflicting
such injury. It was in a sudden quarrel, which could have been
provoked by the victim and P.W.2, that blows followed from each
side. Most importantly, the circumstances in which the incident
occurred does clearly negate any suggestion of premeditation in
mind. That apart, it cannot be overlooked that while the victim
was middle-aged, the appellant was in his late fifties. At the time
of the alleged incident, apart from P.W.s 2 and 3, other three
persons who were present at the spot were not examined, as per
the version of P.W.2. It is indeed improbable that in the presence
of such persons, the appellant wielding a weapon like a knife
would come to the spot with an intention to commit the offence of
murder overpowering all of them without any sufficient reason or
provocation. In this Court’s opinion, the trial court lacked in
objectivity by not examining the facts and circumstances as to
whether the situation was such as is likely to reasonably cause
an apprehension in the mind of the appellant that there was
imminent danger to his body, of either death or grievous hurt
being caused to him, if he did not act in private defence. To impute
intention to cause death or the intention to cause that particular
injury, which proved fatal, in these circumstances
seems to be
unreasonable. [Para 23][131-E-H; 132-A-C]
4. The appellant was entitled to the benefit of Exception 4
to section 300, IPC. The appellant could not be convicted for
murder of the victim. His conviction for murder and sentence of
life imprisonment are liable to be set aside. It is ordered
accordingly. However, this Court found it proper to convict the
appellant under section 304, Part II, IPC. [Paras 25, 26 and
27][132-E-F]
State of U.P. v. Lakhmi (1998) 4 SCC 336 : [1998] 1
SCR 850; Sanatan Naskar v. State of West Bengal (2010)
8 SCC 249 : [2010] 7 SCR 1023; Reena Hazarika v.
State of Assam (2019) 13 SCC 289 : [2018] 13
SCR 1108; Parminder Kaur v. State of Punjab (2020)
8 SCC 811 : [2020] 6 SCR 508 - referred to.
PREMCHAND v. THE STATE OF MAHARASHTRA
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Case Law Reference
[1998] 1 SCR 850
referred to
Para 14
[2010] 7 SCR 1023
referred to
Para 14
[2018] 13 SCR 1108
referred to
Para 14
[2020] 6 SCR 508
referred to
Para 14
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
211 of 2023.
From the Judgment and Order dated 06.08.2019 of the High Court
of Judicature at Bombay at Nagpur in CRA No. 211 of 2016.
Ravindra Bana, Sudheer Voditel, Advs. for the Appellant.
Siddharth Dharmadhikari, Aaditya A. Pande, Bharat Bagla,
Ms. Kirti Dadheech, Advs. for the Respondent.
The Judgment of the Court was delivered by
DIPANKAR DATTA, J.
1. This appeal, by special leave, calls in question the judgment and
order dated 06th August, 2019 of the High Court of Judicature at Bombay,
Bench at Nagpur, whereby Criminal Appeal No 211 of 2016 carried by
the appellant assailing his conviction under section 302, Indian Penal
Code, 1860 (for brevity ‘IPC’) and sentence of life imprisonment with a
fine of Rs.6,000.00 and a default sentence of one year as well as sentence
of seven years of rigorous imprisonment and fine of Rs.4,000.00 for the
offence punishable under section 307, IPC was dismissed.
2. The prosecution case was that Nandkishor Korde (for brevity
‘the victim’) was murdered on 26th September, 2013 at around 5:00 pm
by the appellant. The other three victims, namely Namdeo Korde (P.W.2),
Vilas Charde (P.W.3), and Kunal Babhulkar (P.W.4) received stab injuries
caused by a knife, also
inflicted by the appellant. A report was lodged
soon thereafter by the mother of the victim Rekhabai Korde, (P.W.1),
leading to registration of an F.I.R. under sections 302 and 307, IPC. The
post-mortem report dated 27th September, 2013 (Ext.35) recorded “stab
injury to neck” of the victim as the probable cause of death.
3. Consequent to the registration of the F.I.R., Police Inspector
Bharat Thakre (P.W.8) took up the investigation, visited the spot of the
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incident and prepared spot panchnama. He found the spot of the incident
stained with blood and recovered a blood-stained knife, a wooden stick
stained with blood, three pairs of chappals, two spectacles, and a blue
dot pen. P.W.8 arrested the appellant and since he too had received
injuries, he was referred to the Rural Hospital, Katol for his medical
examination.
4. Upon completion of the investigation, a charge sheet under
sections 302 and 307, IPC was filed before the concerned court against
the appellant. Upon committal, charges for the above-said offences were
framed to which the appellant pleaded not guilty and claimed to be tried.
5. The prosecution examined 8 (eight) witnesses to support of its
case. None was examined on behalf of the defence. However, the
appellant filed a written statement, which we propose to refer to at a
later part of this judgment. The Additional Sessions Judge largely relied
on the statements of P.W.2, P.W.3, and P.W.4 to convict the appellant.
The Court concluded that the appellant committed the murder of the
victim with the knife (Art.1) and also attempted to commit the murder of
P.W.2, P.W.3 and P.W.4. The defence of the appellant appeared to the
Court to be false and the prosecution was held to have proved its case
beyond reasonable doubt. This was followed by the convictions and
sentences, noted above.
6. The aforesaid judgment having been challenged before the High
Court, the relevant Division Bench was of the view
that the findings did
not warrant any interference and that the appeal was devoid of any
merit; hence, it was dismissed.
7. The first limb of the arguments advanced by learned counsel
for the appellant is that the courts below clearly erred in convicting the
appellant. According to him, the following points deserve consideration:
a.
Firstly, the courts below failed to appreciate that none of
the other persons present at the site of the occurrence,
namely Shankarrao Fartode, Umrao Charde, and Ramesh
Korde (as per the version of P.W.2) were examined as
prosecution witnesses. The courts ought to have inferred
that had they been produced they would not have supported
the prosecution case and, thus, were deliberately withheld.
Non-examination of such independent witnesses, therefore,
should be held to be fatal to the prosecution case.
PREMCHAND v. THE STATE OF MAHARASHTRA
[DIPANKAR DATTA, J.]
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b.
Secondly, having regard to the age of the appellant (he was
58 years old on the date of the incident), it is quite improbable
that he could freely inflict stab injuries on the victim and the
others without anyone of the injured as well as the others
present at the site (Shankarrao Fartode, Umrao Charde,
and Ramesh Korde) even making an attempt to resist the
appellant from inflicting injuries as also to save anyone of
the others.
c.
Thirdly, it was necessary to establish, by examining these
independent witnesses, that it was the appellant who came
with the knife and holding it was on a stabbing spree resulting
in the death of the victim and injury to the others.
d.
Fourthly, all eyewitnesses (P.W.2, P.W.3 and P.W.4) who
deposed against the appellant were interested witnesses
and, therefore, not credible and their testimony ought not to
have been relied upon.
e.
Fifthly, the courts below failed to take note that P.W.2 and
P.W.3 were both interested witnesses and it was a clear
case of false implication by suppressing the original story
of the actual incident.
f.
Sixthly, it is surprising that although P.W.4 claimed to have
snatched the knife from the appellant, there is no injury on
his hand; on the contrary, there is no explanation from the
side of the prosecution with regard to the six injuries suffered
by the appellant.
g.
Seventhly, no motive could be established for the appellant
to assault the victim and P.W.2
as the dispute between the
parties arising out of unauthorized construction made by
P.W.2 on the ground floor of the building of the appellant
relates back to the year 2003.
h.
Seventhly, the knife was not recovered at the instance of
the appellant under section 27 of the Indian Evidence Act,
1872 but seizure has been shown to have been made at the
site. There being contradictory statements of P.W.2 and
P.W.4, it is unclear as to who introduced the knife in the
scuffle.
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i.
Finally, the appellant was a permanent resident of Nagpur
whereas the place of the incident is Katol, a tehsil place
situated about 50 kms. from Nagpur. There could hardly be
any reason for the appellant to travel such distance and
murder the victim, and that too with a knife in broad daylight
and in the presence of a host of people.
8. The second limb of the arguments of learned counsel is that
even if it be assumed that death of the victim occasioned at the hands of
the appellant, as per the prosecution case the victim was initially away
from the place of incident and was the last to join the scuffle. There
was, thus, no premeditation on the part of the appellant as such and the
victim seems to have got injured unintentionally in the scuffle between
the appellant on the one side and the victim, P.W.s 2, 3 and 4 on the
other. Therefore, clearly, the victim was not the target. He contended
that conviction of the appellant under section 302, IPC was erroneous
on facts and in the circumstances and that the evidence at best made
out a case punishable under section 304, Part II, IPC. The appellant has
been behind bars for nine years and it is only fair, just and proper that
this Court upon consideration of the materials on record directs his release
by converting the conviction from section 302, IPC to section 304, Part
II, IPC and sentencing him to the period already spent in custody.
9. Learned counsel appearing for the State, on the other hand,
supported the judgment of conviction and order of sentence of the Sessions
Judge. He also submitted that the High Court took pains to reappraise
the evidence and finally concurred with the Sessions Judge. No case
having been set up by the appellant for interference, he urged this Court
to dismiss the appeal.
10. We have heard the parties, considered the evidence led by
them before the trial court and perused the judgment and order of the
trial court and the High Court.
11. Any detailed discussion of the oral evidence of the prosecution
witnesses is considered unnecessary in view of the “WRITTEN
STATEMENT” dated 31st March, 2016 (Ext.96) of the appellant
[Annexure ‘P-16’ to the paperbook], which was filed by him before the
trial court in his defence, in terms of sub-section (5) of section 313 Code
of Criminal Procedure, 1973 (for brevity ‘Cr. P.C.). It is also noted that
while replying to Q. No.79 in course of examination under section 313(1),
the appellant had referred to such a statement.
PREMCHAND v. THE STATE OF MAHARASHTRA
[DIPANKAR DATTA, J.]
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12. The gist of Ext. 96, to the extent relevant for the purpose of a
decision on this appeal, is that the appellant used to come to Katol from
Nagpur for collecting rent every 2-3 months; that the appellant came to
Katol on 26th September, 2013 for collecting rent; that while the appellant
was returning from a credit society after withdrawing money and climbing
the stairs of his house, the victim spit on him and threatened him by
saying “Aaj tere ko fitate hai, tera game bajate hai”; that while the
appellant was leaving his house, P.W.2 gave a signal to the victim and
P.W.4 by saying “Ala re ala”; on seeing the appellant, the victim took out
a knife and P.W.4 took out a ‘fighter’ belonging to P.W.3 and started
beating him; that the appellant could take the knife with both his hands
and in the meantime P.W.2 and P.W.3 came forward to beat the appellant;
that while the appellant tried to save himself, the victim and P.W.s 2 to 4
sustained injuries; that the appellant too suffered serious injuries on the
fingers of both his hands, knife wounds on his chest and injuries on his
chest and right shoulder having been beaten by a wooden stick.
Immediately after such incident, the appellant went to the police station
for lodging a complaint against his assailants but the same was not
received. He was made to wait in the police station till 10.00 pm without
his injuries being treated. He also stated that P.W.s 2, 3 and 4 had
strained
relations with him and that is the reason why they tried to seriously
injure him.
13. There is a plethora of judicial pronouncements on consideration
of section 313, Cr. P.C., a few of which need to be noted at this stage.
14. A bench of three Hon’ble Judges of this Court in State of
U.P. vs Lakhmi1 has extensively dealt with the aspect of value or utility
of a statement under section 313, Cr. P.C. The object of section 313, Cr.
P.C. was explained by this Court in Sanatan Naskar vs. State of West
Bengal2. The rationale behind the requirement to comply with section
313, Cr. P.C. was adverted to by this Court in Reena Hazarika vs.
State of Assam3. Close on the heels thereof, in Parminder Kaur vs.
State of Punjab4, this Court restated the importance of section 313, Cr.
P.C. upon noticing the view taken in Reena Hazarika (supra) and M.
Abbas vs. State of Kerala5.
1 (1998) 4 SCC 336
2 (2010) 8 SCC 249
3 (2019) 13 SCC 289
4 (2020) 8 SCC 811
5 (2001) 10 SCC 103
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15. What follows from these authorities may briefly be summarized
thus:
a.  section 313, Cr. P.C. [clause (b) of sub-section 1] is a valuable
safeguard in the trial process for the accused to establish his innocence;
b. section 313, which is intended to ensure a direct dialogue
between the court and the accused, casts a mandatory duty on the court
to question the accused generally on the case for the purpose of enabling
him to personally explain any circumstances appearing in the evidence
against him;
c. when questioned, the accused may not admit his involvement
at all and choose to flatly deny or outrightly repudiate whatever is put to
him by the court;
d. the accused may even admit or own incriminating circumstances
adduced against him to adopt legally recognized defences;
e. an accused can make a statement without fear of being cross-
examined by the prosecution or the latter having any right to cross-
examine him;
f. the explanations that an accused may furnish cannot be
considered in isolation but has to be considered in conjunction with the
evidence adduced by the prosecution and, therefore, no conviction can
be premised solely on the basis of the section 313 statement(s);
g. statements of the accused in course of examination under section
313, since not on oath, do not constitute evidence under section 3 of the
Evidence Act, yet, the answers given are relevant for finding the truth
and examining the veracity of the prosecution case;
h. statement(s)
of the accused cannot be dissected to rely on the
inculpatory part and ignore the exculpatory part and has/have to be read
in the whole, inter alia, to test the authenticity of the exculpatory nature
of admission; and
i. if the accused takes a defence and proffers any alternate version
of events or interpretation, the court has to carefully analyze and consider
his statements;
j. any failure to consider the accused’s explanation of incriminating
circumstances, in a given case, may vitiate the trial and/or endanger the
conviction.
PREMCHAND v. THE STATE OF MAHARASHTRA
[DIPANKAR DATTA, J.]
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16. Bearing the above well-settled principles in mind, every criminal
court proceeding under clause (b) of sub-section (1) of section 313 has
to shoulder the onerous responsibility of scanning the evidence after the
prosecution closes its case, to trace the incriminating circumstances in
the evidence against the accused and to prepare relevant questions to
extend opportunity to the accused to explain any such circumstance in
the evidence that could be used against him. Prior to the amendment of
section 313 in 2009, the courts alone had to perform this task. Instances
of interference with convictions by courts of appeal on the ground of
failure of the trial court to frame relevant questions and to put the same
to the accused were not rare. For toning up the criminal justice system
and ensuring a fair and speedy trial, with emphasis on cutting down
delays, the Parliament amended section 313 in 2009 and inserted sub-
section (5), thereby enabling the court to take the assistance of the Public
Prosecutor and Defence Counsel in preparing such questions [the first
part of sub-section (5)]. Ideally, with such assistance (which has to be
real and not sham to make the effort effective and meaningful), one
would tend to believe that the courts probably are now better equipped
to diligently prepare the relevant questions, lest there be any infirmity.
However, judicial experience has shown that more often than not, the
time and
effort behind such an exercise put in by the trial court does not
achieve the desired result. This is because either the accused elects to
come forward with evasive denials or answers questions with stereotypes
like ‘false’, ‘I don’t know’, ‘incorrect’, etc. Many a time, this does more
harm than good to the cause of the accused. For instance, if facts within
the special knowledge of the accused are not satisfactorily explained,
that could be a factor against the accused. Though such factor by itself
is not conclusive of guilt, it becomes relevant while considering the totality
of the circumstances. A proper explanation of one’s conduct or a version
different from the prosecution version, without being obliged to face
cross- examination, could provide the necessary hint or clue for the court
to have a different perspective and solve the problem before it. The
exercise under section 313 instead of being ritualistic ought to be realistic
in the sense that it should be the means for securing the ends of justice;
instead of an aimless effort, the means towards the end should be
purposeful. Indeed, it is optional for the accused to explain the
circumstances put to him under section 313, but the safeguard provided
by it and the valuable right that it envisions, if availed of or exercised,
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could prove decisive and have an effect on the final outcome, which
would in effect promote utility of the exercise rather than its futility.
17. Once a written statement is filed by the accused under sub-
section (5) of section 313, Cr. P.C. and the court marks it as an exhibit,
such statement must be treated as part of the accused’s statement under
sub-section (1) read with sub-section (4) thereof. In view of the latter
sub-section, the written statement has to be considered in the light of the
evidence led by the prosecution to appreciate the truthfulness or otherwise
of such case and the contents of such statement weighed with the
probabilities of the case either in favour of the accused or against him.
18. This is a case where it does not appear from the records that
the written statement (Ext. 96) engaged the attention of both the trial
court as well as the High Court. Applying the principles noted above and
for the reasons discussed below, there can be no quarrel that non-
consideration of Ext. 96, to a limited extent, in relation to recording of
conviction and consequently imposition of sentence, has rendered it
vulnerable to interference.
19. Ext. 96 refers to inculpatory admissions as well as seeks to
bring out exculpatory circumstances. The statement has to be read in its
entirety. The inculpatory admissions emerging from this statement against
the appellant are (i) his presence at the spot and (ii) sustaining of injuries
by the victim and the
other prosecution witnesses while the appellant, as
claimed, was attempting to save himself from getting injured. The
exculpatory circumstances sought to be established are (i) the appellant’s
description of the act complained of as involuntary, which was compelled
by inevitable circumstances and not guided by choice and, (ii) sustaining
of injury by him in the same transaction.
20. In view of the inculpatory admissions appearing from Ext.96,
the trial court, and the High Court while concurring with the trial court,
need not have laboured much to convict the appellant as the person
instrumental for the homicidal death of the victim by discussing the
evidence led in course of the trial in details. The appellant’s presence at
the spot and the victim and the injured witnesses sustaining injury in
course of the scuffle could be held to have been established from Ext.96
itself. However, by not looking into Ext. 96 with the other evidence on
record, what the trial court omitted to consider is, whether the prosecution
was justified in claiming that the offensive act amounted to culpable
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homicide amounting to murder or whether the appellant being guilty of
culpable homicide not amounting to murder, deserved punishment under
section 304, Part II, IPC. True it is, the trial court considered the
arguments advanced on behalf of the appellant that (i) he had “exercised
his right of private defence”, and though (ii) “he exceeded such
right”, (iii) the present case at the most would fall under section 304,
Part II, IPC; but, it proceeded to overrule such arguments by relying on
the oral testimony of P.W.s 2 to 4. In the process, the trial court failed to
appreciate the defence version as spelt out in Ext.96, which appears to
us to be plausible. A senior citizen who visits Katol from Nagpur, his
place of residence, for collecting rent, having the intention of murder
would possibly not attempt to do so in broad daylight and in the presence
of witnesses, and that too with a weapon such as a knife. Reading Ext.96
as it is, we do find it probable that there could have been provocation at
the instance of the victim, who allegedly indulged in spitting on the
appellant coupled with verbal abuse, whereafter P.W.2 and later P.W.s
3 and 4 sprang into action, resulting in a scuffle where both parties
indulged in inflicting injuries on each other resulting in an unwanted loss
of life.
21. Regrettably, pointed attention of the High Court does not appear
to have been drawn to Ext.96 by counsel on behalf of the appellant,
as a
consequence whereof the Court went on to hold that the “act could not
be shown to have come in any of the exceptions enumerated in
Section 300 of IPC”, that “it is neither the result of sudden
provocation nor done in the heat of passion during quarrel”, and
that it had “no hesitation to hold that the death of Nandkishor is
culpable homicide amounting to murder”.
22. Be that as it may, we have no difficulty in proceeding to record
our conclusions resting on the evidence on record as well as Ext.96,
which the appellant voluntarily filed before the trial court as his response
to the incriminating materials appearing in the evidence against him while
being questioned under section 313, Cr. P.C, for whatever it is worth. It
appears to us to be a fair and proper disclosure of the appellant’s version
as to what transpired on that fateful evening. The offensive act committed
by the appellant has to be appreciated in the surrounding circumstances
noted below.
23. In the normal run of events, the victim as well as P.W.2 and
the appellant were not supposed to interact with each other on 26th
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September, 2013. P.W.2 opened the shop of the victim because the victim
had not returned from the field. If P.W.2 had not opened the shop, the
appellant would probably not have met him. It was by chance that the
appellant and P.W.2 met each other. The victim and the appellant had no
quarrel with each other; whatever was there, it was between the appellant
and P.W.2. The inter se quarrel between the two had long subsided.
There is a missing link in the prosecution case as to the motive of the
appellant to inflict the blow on P.W.2 first. It is in the evidence of P.W.2
that he was reading a newspaper sitting in front of the shop of the victim
and that the appellant was sitting in the saloon of Baburao Sawarkar
(not examined), which was opposite to the shop of the victim. The
appellant, as per P.W.2, was unarmed initially. P.W.2’s further version
was that the appellant went to his house, fetched a knife and then stabbed
P.W.2 on his left shoulder, neck and left-hand finger resulting in serious
bleeding injuries. The reason why the appellant suddenly on seeing the
septuagenarian P.W.2 would go to his house and return with a knife is
not there in the evidence. We shall, for the present, assume that there
were heated exchanges and that the appellant gave a blow to P.W.2
first, and thereafter to the others one by one. Then again, the victim
who, according to P.W.2, was supposed to be in the field but appeared in
the scene from some other place all on a sudden,
was the third in the
series to be stabbed by the appellant and, thus, was not his target. Though
there is no specific admission by the appellant that he had stabbed the
victim or the other injured witnesses, reading of the contents of Ext.96
does evince an act of retaliation spurred by sudden provocation resulting
in a quarrel as well as a scuffle which ultimately, most unfortunately,
cost the victim his life and left some others injured. The appellant too
sustained injuries in the scuffle and there is evidence on record that one
of the injuries was grievous, yet, the criminal law was surprisingly not
set in motion to bring to book those responsible for inflicting such injury.
It was in a sudden quarrel, which could have been provoked by the
victim and P.W.2, that blows followed from each side. Most importantly,
the circumstances in which the incident occurred does clearly negate
any suggestion of premeditation in mind. That apart, it cannot be
overlooked that while the victim was middle-aged, the appellant was in
his late fifties. At the time of the alleged incident, apart from P.W.s 2 and
3, Shankarrao Fartode, Umrao Charde, Ramesh Korde (all three not
examined) were present at the spot, as per the version of P.W.2. It is
indeed improbable that in the presence of such persons, the appellant
PREMCHAND v. THE STATE OF MAHARASHTRA
[DIPANKAR DATTA, J.]
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[2023] 2 S.C.R.
wielding a weapon like a knife would come to the spot with an intention
to commit the offence of murder overpowering all of them without any
sufficient reason or provocation. In our opinion, the trial court lacked in
objectivity by not examining the facts and circumstances as to whether
the situation was such as is likely to reasonably cause an apprehension
in the mind of the appellant that there was imminent danger to his body,
of either death or grievous hurt being caused to him, if he did not act in
private defence. To impute intention to cause death or the intention to
cause that particular injury, which proved fatal, in these circumstances
seems to be unreasonable.
24. Exception 4 to section 300, IPC ordains 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 or acted in a cruel or unusual manner.
The explanation thereto clarifies that it is immaterial in such cases which
party offers the provocation or commits the first assault. Four requirements
must be satisfied to invoke this exception, viz. (i) it was a sudden fight;
(ii) there was no premeditation; (iii) the act was done in a heat of passion;
and (iv) the assailant had not taken any undue advantage or acted in a
cruel or unusual manner.
25. Taking an overall view of the matter, we are inclined to the
opinion that the
appellant was entitled to the benefit of Exception 4 to
section 300, IPC.
26. The upshot of the above discussion is that this is not a case
where the appellant could be convicted for murder of the victim. His
conviction for murder and sentence of life imprisonment are liable to be
set aside. It is ordered accordingly.
27. However, we think it proper to convict the appellant under
section 304, Part II, IPC. Since the appellant has suffered imprisonment
for more than nine years and he is presently in his late sixties, we consider
incarceration for such period as adequate punishment. The appellant
shall be released from custody forthwith, unless required in connection
with any other case.
28. Since the appellant has already served the sentence imposed
for commission of offence under section 307, IPC, based on a conviction
which is highly suspect, we allow it to rest.
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29. The appeal stands allowed to the extent indicated above. No
costs.
30. Before parting, we observe that this is a case where the police
should have investigated the injuries suffered by the appellant too. The
appellant also did not pursue any available remedy to right the wrong.
However, in view of little less than a decade having passed since the
incident took place, any direction to investigate at this distance of time
may not yield any fruitful result. We, therefore, refrain from issuing such
direction.
Ankit Gyan
Appeal allowed.
(Assisted by : Aarsh Choudhary, LCRA)
PREMCHAND v. THE STATE OF MAHARASHTRA
[DIPANKAR DATTA, J.]