THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 812 OF 2008 Sun

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 812 OF 2008

Sunil Khergade

,
ADARSH KUMAR GOEL

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 812 OF 2008

Sunil Khergade Appellant (s)

Versus

State of Maharashtra Respondent (s)

J U D G M E N T

KURIAN, J.:

The appellant along with his younger brother was convicted under Section
302 read with Section 34 of the Indian Penal Code (45 of 1860) (hereinafter
referred to as ‘IPC’) and sentenced to undergo life imprisonment by the
Court of 2nd Additional Sessions Judge, Nagpur. They were also sentenced to
pay a fine of Rs.300/- each, a default sentence of two months. .

In appeal before the High Court of Judicature Bombay, Nagpur Bench, the
High Court declined to interfere with the conviction and sentence, and
hence, the present appeal.

The appellant’s younger brother-Sanjay had also filed a Special Leave
Petition before this Court as Special Leave Petition (Criminal) No. 7667 of
2007. Since he had not surrendered, as required under the Rules, the
Special Leave Petition filed by him was dismissed by Order dated
02.05.2008.

The incident took place on 12.02.1999 between 07.00 A.M. and 08.00 A.M. The
deceased had returned to the village only in the morning of that day,
around the time of the incident. There was a quarrel between the families
who were sharing common open space. The genesis of the quarrel was with
regard to the conduct of wife of the deceased who allegedly threw night
soil in the open space. They had picked up such quarrel earlier also. It
has come in evidence that the co-accused was armed with crowbar and he had
held the hands of the deceased and made him lie on the ground, at which
time the appellant fetched a knife and inflicted the fatal injury on the
left side of the chest. The following are the injuries:

“1. Stab wound in left mammary area medial to nipple 2 cm x 1cm x 5″
directed upward forward and medially.

Abrasion on chest wall left side above the stab wound 4 x ¼ cm.

Incised wound on back left sides 5 cm x ½ cm and akin deep tapering
laterally.”

The trial court mainly relied on the evidence of PW-1-father of the
deceased, PW-2-wife of the deceased and PW-7-mother of the deceased. There
was no evidence for the defense. In the Statement under Section 313 of The
Code of Criminal Procedure, 1973, the appellant explained the injury as
having been caused when the deceased fell on the bamboo fences amidst the
scuffle. However, it was contended before the trial court that appellant
inflicted the injury on the deceased in exercise of his private defence and
the protection under Section 97 of IPC was canvassed. That contention was
turned down in view of the overwhelming evidence that the deceased was
wholly unarmed and the other members of the family were also unarmed. It
was then contended that the act of stabbing was on account of grave and
sudden provocation and that the act was done without any intention to cause
death or to cause such bodily injury as is likely to cause death and hence
canvassed for the benefit of Section 304 Part II of IPC.

The trial court, however, having regard to the evidence of PWs-1, 2 and 7,
who were also injured witnesses, and taking note of the nature and manner
of the commission of the crime, convicted the appellant and his brother
under Section 302 read with Section 34 of IPC. However, on evidence, taking
note of the young age of the accused and on reaching the conclusion that it
is not a case of rarest of the rare cases, the appellant was sentenced to
suffer imprisonment for life. The trial court found that accused no.1-
Sanjay (younger brother of the appellant) had caught hold of the deceased,
made him lie on the ground and the appellant brought knife from the house
and inflicted a stab injury on the chest of the deceased.

In appeal, having analysed the evidence at length, the High Court was not
inclined to take a different view.

Learned Counsel for the appellant mainly stressed for the conviction to be
altered to Section 304 Part II of IPC. Even otherwise, private defence
under Section 97 of IPC and the benefit under exception to Section 300 of
IPC will not go together.

It is submitted that there was only one injury that is mentioned in the
First Information Report, and with that, it cannot be held that the
appellant committed murder. The First Information Report need not
necessarily contain each and every particular injury sustained by the
deceased. It needs to contain only some information about the crime and
some information about the manner in which the offence has been committed.
It is not required to contain the minute details of the whole crime. (See
Patai alias Krishna Kumar v. State of Uttar Pradesh[1]). In the instant
case, the First Information Report was prepared on the basis of the
statement given by PW-1-father of the deceased. To him, it is not the
number of injuries sustained what mattered but the death resulting from the
stab injury. It has also come in evidence that the deceased had been
inflicted with three injuries by the appellant and the fatal injury is the
one which pierced the heart of the deceased.

Learned Counsel for the appellant, placing reliance on Salim Sahab v. State
of M.P.[2], prayed for alteration of the conviction from Section 302 of IPC
to Section 304 Part II of IPC. Reference is also invited to Mohd. Ismail
alias Haji Abdul Kadar Sheikh v. State of Gujarat[3]. Salim Sahab (supra)
is a case where the Court, having discussed the factual scenario, came to
the conclusion that ” during a quarrel between the deceased and the
accused, they were grappling and during that quarrel, the accused attacked
the deceased with a pair of scissors. It was not a very big-sized weapon
though it was certainly having a sharp-edged point”. In that view of the
matter, the conviction was altered to Section 304 Part-II of IPC. Mohd.
Shakeel v. State of A.P.[4] is also one where the conviction is altered
from Section 302 of IPC to Section 304 Part II of IPC. It is a case of
only one injury and the accused also suffering injury during the scuffle.
The situation in the case of the appellant is totally different. It has
been established in evidence that the deceased and the other members of the
family were wholly unarmed, the deceased had come to his village only in
the morning of the fatal day, the appellant and his younger brother, who is
the co-accused, both were in possession of arms, the appellant had fetched
the knife (Article-15) which had a wooden handle and 17 centimeter long
blade portion with which the fatal injury was caused on the left side of
the chest of the deceased. It is a situation where the appellant has taken
undue advantage of the situation as held by this Court in Babulal Bhagwan
Khandare and another v. State of Maharashtra[5]. Therefore, it is not a
case where the appellant is entitled to alteration of sentence from Section
302 of IPC to Section 304 Part II of IPC.

There is no merit in the appeal, hence, it is dismissed.

….J.
(KURIAN JOSEPH)

..J.
(ADARSH KUMAR GOEL)
New Delhi;
August 13, 2015.
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[1] (2010) 4 SCC 429
[2] (2007) 1 SCC 699
[3] (2007) 3 SCC 118
[4] (2007) 3 SCC 119
[5] (2005) 10 SCC 404

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REPORTABLE

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