Full Judgment Text
2020:BHC-AS:7294-DB
apeal-302-2014.doc .
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 302 OF 2014
Somnath Virbhadrayya Vijapure, )
Age: 32 years, Occ.: Agriculture/ Labour )
Residing at Hiroli, Taluka Aland, )
District Gulbarga (K) )
(At present in Solapur District Prison )
Solapur) ) ...Appellant
Versus
The State of Maharashtra )
(Notice to be served on A.P.P. High Court,)
A.S., Bombay ) ...Respondent
. . . . . .
Ms.Payoshi Roy i/b. Dr. Yug Mohit Chaudhary for the Appellant.
Mr.V.B.Konde-Deshmukh, APP for the Respondent -State.
. . . . . .
CORAM : PRASANNA.B.VARALE &
V.G. BISHT, JJ.
RESERVED ON :15TH SEPTEMBER 2020
PRONOUNCED ON:13TH OCTOBER, 2020
JUDGMENT (PER: V.G.BISHT, J.)
1. The appellant-original accused has preferred this appeal under
Section 374 of the Code of Criminal Procedure, 1973 (for short, “the
Cr.PC”) challenging the judgment and order of conviction a
sentence passed by learned Sessions Judge, Solapur in Sessions Cas
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No. 169 of 2013 dated 15 March, 2014 by which the trial Court
convicted the appellant/ original accused for the offence punishable
under Section 302 of the Indian Penal Code, 1860 (for short, “the
IPC”) and sentenced him life imprisonment with a fine of
Rs. 10,000/- and in default to deposit the amount of fine, ordered to
undergo further rigorous imprisonment for a period of six months.
The trial Court was, however, pleased to acquit the appe
original accused of the offences punishable under Sections 504 and
506 of the IPC.
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2. Briefly stated the prosecution case is that, on 30 January,
2013 at about 9.30 a.m., Bhalchandra Somshekhar Jawalkoti i.e.,
informant (PW-1), while standing in front of hotel of one Girmal
Pomaji of village Wagdari, one Raghuveer Nanjude (PW-2) came and
informed that on the same day at about 9.15 a.m., he
informant’s father, namely, Somshekhar Jawalkoti (deceased) while
proceeding towards the village Hiroli by walk from Wagdari village,
a luxury bus came from the Hiroli side and from which Somnath
Virbhadrayya Vijapure i.e., accused alighted and came before them.
The accused started complaining the deceased in respect of bandh
(boundary) to which the deceased asked not to quarrel.
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prosecution alleges that after hearing this, the accused told decease
that he would see him immediately and then gave blow of an axe on
his head, back and chest brutally. The deceased fell down. After
getting injured seriously and when the informant tried to intervene,
the accused rushed on his person and therefore, the informant kept
himself aside. Later on, the accused ran into the forest.
3. The prosecution then contends that the informant then along
with PW-2 rushed to the spot and with the help of others took his
father to Rural Hospital, Akkalkot where the deceased was declared
dead.
4. The First Information Report (for short, “FIR”) was registered
vide Crime No. 21 of 2013 with Akkalkot Police Station, Solapur for
the offence punishable under Sections 302, 504 and 506 of the IPC.
The investigation was taken up by the investigating officer, who
prepared spot panchnama, seizure panchnama of various articles
seized from the spot and recorded statements of witnesses.
5. PW-10 Police Naik took the muddemal property from
Regional Forensic Science Laboratory.
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6. PW-7 Dr.Ravindra Mallikarjun Bansode conducted autopsy on
the body of the deceased and noted number of injuries on his person
and opined that the deceased had died due to haemorrhagic shock.
The result of analysis issued by Forensic Science Laboratory shows
that the human blood of group “O” was found on the clothes of the
deceased and accused and an axe was also found to have stained
with human blood. On completion of the investigation, police filed
the chargesheet against the appellant-original accused unde
Sections 302, 504 and 506 of the IPC and committed the case to the
Court of Sessions, Solapur.
7. To substantiate the charge against the appellant-origina
accused, the prosecution has examined as many as 10 witnesses an
exhibited number of documents. The appellant- original accused
was questioned under Section 313 of the Cr.P.C about th
incriminating evidence and circumstances and the appellant- origina
accused denied all of them as false.
8. Upon appreciation of oral evidence and circumstances, the tria
Court convicted the appellant- original accused for the offe
punishable under Section 302 of the IPC and sentenced him in the
manner stated here in above. Hence, this appeal.
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9. Ms.Roy, learned Counsel for the appellant/original accused
has made a valiant attempt to bring the case within the scope of
Exception 4 to Section 300 of the IPC. She emphasized that a
sudden quarrel broke out between the deceased and accused and in
a fit of anger, the accused assaulted the deceased. Except one injur
rest of the injuries were simple in nature and in view o
circumstances, the learned trial Court wrongly convicted the accuse
under Section 302 of the IPC. The learned Counsel further
submitted that having regard to the facts and circumstances of the
present case, the accused ought to have been given the benefit of
Exception 4 to Section 300 of the IPC. For all these reasons, the
conviction under Section 302 of the IPC is not sustainable, argued
learned Counsel. The learned Counsel placed reliance on the
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judgments in Surinder Kumar Versus Union Territory, Chandi
2..
and Adu Ram Versus Mukna and others
10. Mr.Konde-Deshmukh, learned APP, on the other hand, not only
supported the impugned judgment and order of conviction
vehemently submitted that the injury was inflicted on the vital parts
of the body by means of an axe. The evidence on record clearly
indicates that the accused had clear intention to kill the deceased
1 (1989) 2 Supreme Court Cases 217
2 (2005) 10 Supreme Court Cases 597
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and accordingly the accused acted cruelly and caused death of the
deceased. The learned trial Court, according to learned APP, has
properly appreciated the evidence and circumstances of the case an
rightly convicted the appellant-original accused under Section 302 o
the IPC. There being no illegality or perversity, the conviction so
awarded by learned trial Court should not be disturbed, arg
learned APP.
11. At the very outset, we would like to make it clear that the
present appeal is argued by the learned Counsel for appe
original accused purely on the point of sentence. The conviction is
not disputed in any manner. What we understand from th
submissions advanced before us by learned Counsel for th
appellant- original accused is that the incident in question took place
on a sudden fight without any premeditation and the act of appellan
hitting the deceased was committed in the heat of passion upon a
sudden quarrel without appellant -original accused having t
undue advantage or acting in a cruel or unusual manner.
12. Section 299 of the IPC explains culpable homicide as causing
death by doing an act with the intention of causing death, or with
the intention of causing such bodily injury as is likely to cause death
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or with the knowledge that the act complained of is likely to cause
death. The first two categories require the intention to cause death
or the likelihood of causing death while the third category confines
itself to the knowledge that the act complained of is likely to cause
death.
13. Section 300 of the IPC declares that except in those cases
which are specifically excepted culpable homicide is murde
situations which have been specifically laid down. These are
commonly referred to as firstly, secondly, thirdly and fourthly under
Section 300 of the IPC. The Hon’ble Apex Court in the judgment in
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State of Andhra Pradesh v. Rayavarapu Punnayya and Ano inter
alia held as follows :
21. From the above conspectus, it emerges that
whenever a court is confronted with the question
whether the offence is ‘ murder’ or ‘ culpable homicide
not amounting to murder’, on the facts of a case, it will
be convenient for it to approach the problem in three
stages. The question to be considered at the first stage
would be, whether the accused has done an act by
doing which he has caused the death of another. Proof
of such casual connection between the act of the
accused and the death, leads to the second stage for
considering whether that act of the accused amounts to
“culpable homicide” as defined in Section 299. If the
answer to this question is prima facie found in th
affirmative, the stage for considering the operation of
Section 300 of the Penal Code, is reached. This is the
stage at which the court should determine whether the
3 1976 (4) SCC 382 : (AIR 1977 SC 45)
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facts proved by the prosecution bring the case within
the ambit of any of the four clauses of the definition
of 'murder' contained in Section 300. If the answer to
this question is in the negative the offence would be
“culpable homicide not amounting to murder”,
punishable under the first or the second part of Section
304, depending, respectively, on whether the second or
the third clause of Section 299 is applicable. If this
question is found in the positive, but the case comes
within any of the exceptions enumerated in Section 300,
the offence would still be “culpable homicide not
amounting to murder”, punishable under the first part of
Section 304, of the Penal Code”.
14. It is also relevant to note that Exception 4 to Section 300 of the
IPC which reads as under :
“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”.
15. In Surinder Kumar (supra) , the Hon’ble Apex Court held that
to invoke Exception 4 to Section 300 of the IPC, four requirements
must be satisfied, namely, (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 crue
manner.
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16. Further, in Arumugam v. State , in support of the proposition of
law that under what circumstances Exception 4 to Section 300 IPC
can be invoked if death is caused, it has been explained as under :
(SCC p. 596, para 9)
“9….. ’18. The help of Exception 4 can be invoked if
death is caused (a) without premeditation; (b) in a
sudden fight ; (c) without the offender’s having taken
undue advantage or acted in a cruel or unusual
manner; and (d) the fight must have been with the
person killed. To bring a case within Exception 4 all
the ingredients mentioned in it must be found. It is to
be noted that the “fight” occurring in Exception 4 to
Section 300 IPC is not defined in the Penal Code
1860. It takes two to make a fight. Heat of passion
requires that there must be no time for the passions to
cool down and in this case, the parties had worked
themselves into a fury on account of the verbal
altercation in the beginning. A fight is a combat
between two and more persons whether with or
without weapons. It is not possible to enunciate any
general rule as to what shall be deemed to be a sudden
quarrel. It is a question of fact and whether a quarrel
is sudden or not must necessarily depend upon the
proved facts of each case. For the application o
Exception 4, it is not sufficient to show that there was
a sudden quarrel and there was no premeditation. It
must further be shown that the offender has not taken
undue advantage or acted in cruel or unusual manner.
The expression “undue advantage” as used in the
provision means “unfair advantage”.
17. The question before us, in the light of submissions advanced by
either side, is whether in facts and circumstances of the case the
appellant- original accused has been rightly convicted for the capita
4 (2008) 15 SCC 590
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offence and if not whether the act attributed to him would constitute
a lesser offence like culpable homicide not amounting to murder
punishable under Section 304, part I or II of the IPC.
18. As far as this case is concerned, we are clear in our mind that
the act committed by appellant- original accused amounts
culpable homicide. We find no merit in the contention advanced
before us by learned Counsel for the appellant-original accused that
the case of appellant-original accused is purely covered un
Exception 4 to Section 300 of the IPC. Let us qualify this with
reasons.
19. We have carefully and minutely perused the record. There is
no dispute on the count that the relations between the parties were
quiet strained on account of boundary dispute. This is sufficiently
established by the prosecution by adducing necessary evidence to
that effect.
20. PW-1 Bhalchandra Somshekhar Jawalkoti, son of deceas
stated in his evidence (Exh. 10) that the agricultural land owned by
them is situated at village Hiroli. His uncle Parmeshwar (PW-6) is
also having share in that land. Virbhadrayya Vijapure i.e., father of
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the accused owns agricultural land abutting to their agricult
land. It is his further evidence that there is a dispute between his
family and family of Virbhadrayya on account of boundary of the
land and that dispute is going on since last 1 and ½ years.
21. Similarly, PW-6 Parmeshwar Rachappa Jawalkoti stated in his
evidence (Exh. 21) that deceased Somshekhar was his elder brother
Bhalchandra (PW-1) and Rajkumar are his sons. Their agricultural
land is situated within the precincts of Hiroli. Virbhadrayya Vijapure
is their neighbor in agricultural land. Relations between his
nephews and his neighbour Vijapure were not cordial. The disputes
were on account of bushes on the bandh and on account of boundar
marks of the lands. Further, they were repeatedly saying to Vijapure
that they should get measured their land through T.I.L.R. and even
expressed desire to give their land to Vijapure, if excess land were
found in their possession. However, they were extending threats of
killing them.
22. We must point it out here that the version of PW-1 and PW-6
have virtually gone unchallenged in the cross examination.
Therefore, the existing enmity between the deceased, PW-1 and PW
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6 on the one hand and the accused and his father on the other over
the boundary dispute is clearly and firmly established by
prosecution on record. Even it goes a step ahead when PW-6 clearly
expressed out in his substantive evidence that the accused and his
father even had extended the death threats to them instead of their
proposal of getting the lands belonging to them measured through
T.I.L.R.
23. The evidence clearly points out the nefarious design b
harboured by accused and his family members in their mind over th
boundary dispute. One cannot lose sight of the fact that
essentially in this background the genesis of the incident took place
leading to the death of deceased.
24. This brings us to the actual incident in question.
25. PW-2 Raghuveer Girmalappa Nanjude stated in his evidence
(Exh. 12) that he knew the deceased. The deceased was his friend.
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The deceased had arrived at his place on 29 January, 2013 and told
him that he (deceased) and this witness were required to go to Hirol
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for settlement of dispute. On the next day i.e. on 30 January, 2013,
the deceased and he were proceeding towards Hiroli on foot. They
had reached up to the house of Babu Mulla. One mini bus
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proceeding from Hiroli to Wagdari had arrived at that spot. Accused
alighted from the said mini bus and signaled him to stop
noticing him. This witness then noticed that the accused was armed
with an axe. Exchange of hot words took place between
deceased and accused over the boundary dispute. The deceased
then told accused that he would go to the police station and lodge a
complaint. The accused said he would take care and see as to how
he goes to the police station. It is his further evidence that thereafte
accused assaulted the deceased with the help of axe on his chest.
The deceased fell down on the ground. When this witness attempte
to intervene and requested the accused not to assault deceased, th
accused gestured as if he would be inflicting blow of axe on his
person. He got frightened and ran away from the spot. The accused
then inflicted about six blows on the person of the deceased with the
help of an axe on his arms, head and shoulder. It is his further
evidence that after assaulting the deceased, the accused w
towards Hiroli and carried his axe with him.
26. The evidence of this witness must be read with all seriousness
inasmuch as his evidence provides us a very clear picture as to the
role of the parties to the dispute. First of all, it must be noted that
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the moment accused alighted from the bus armed with an axe and
after noticing PW-2 and deceased, he straightway went to them and
then exchange of hot words followed between the accused
deceased over the boundary dispute. It is also very much pertinent t
note that when the deceased told accused of his intentio
approaching to the police station against the act of accused, the
accused retorted and reflected his mind by saying that he would tak
care and see that how he reaches the police station. It is only then
that the accused inflicted a blow of an axe on the chest of deceased
making the latter fell down. He did not stop there. It is apparent
from the evidence of this witness that when the deceased had fallen
down, the accused then started raining axe blows on the person of
deceased on his arms, head and shoulder.
27. What is strikingly apparent is that there was no such serious
provocation to the accused which would have enabled him to take
recourse of violence and use lethal weapon like axe. The evidence o
rather cross-examination nowhere even remotely suggests that the
provocation from the side of deceased was so grave and menacing
that the accused was left with no alternative but to hit and inflict the
blows in succession by means of an axe.
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28. Records clearly establish that the accused had reached to an
extreme end and intentionally killed the deceased. There is also no
dispute that the death was instantaneous. The evidence on record
gives a very clear and crystal picture that the occurrence had not
taken place on account of a sudden and unpremeditated fight. The
deceased, notably, who was unarmed after the first axe blow had
fallen down and thereafter 5 - 6 blow of the injury was inflicted
when he was in a helpless condition. The cruelty was writ large.
29. We are inclined to the view that in the facts and circumstances
of the present case, it can be said that the appellant- original accuse
had an intention of causing death of the deceased when
committed the act in question. The incident was abundantly not
fallout of grave and sudden provocation. The cumulative effect of
all these circumstances, in our considered opinion, will not entitle
the appellant-original accused to the benefit of Exception
Section 300 of the IPC.
30. We also would like to touch and rely the evidence adduced by
PW-7 Dr. Ravindra Mallikarjun Bansode(Exh. 24). In all, according
to this witness, at the time of autopsy he noted six injuries. The
details whereof are given in column No. 17. According to
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witness, the injuries noted by him were sufficient in ordinary course
of nature to cause death. Thus, the medical evidence also furthers
the case of prosecution.
31. The facts of Surinder Kumar’s case (supra) are quite
distinguishable vis-a-vis the present case. In the said case, after PW
2 and his deceased brother entered the room of the appellant and
uttered filthy abuses in the presence of the latter's sister, tempers ra
high and on PW- 2 taking out a pen knife, the appellant picked up
the knife from the kitchen, ran towards PW-2 and inflicted a simple
injury on his neck. When the deceased intervened on the side of his
brother PW-2, in the course of scuffle he received injuries, one of
which proved fatal. In view thereof, the appellant was given the
benefit of Exception 4 to Section 300 of the IPC. In the case in
hand, there is no such obtaining situation and therefore,
judgment does not further the case of defence.
32. In the case of Adu Ram (supra) , the High Court noted that
fracture injuries were all seen on the hand and other non-vital parts of the
body and there was no grievous injury on the head. All the injuries on the
head were simple in nature and accordingly, the conviction was altered to
Section 304 Part I IPC from Section 302 of the IPC and further taking note
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of the fact that sometime has been spent during trial, custodial sentence
was reduced to the period undergone. However, the fine from Rs.2,000/-
was enhanced to Rs.10,000/-. In the appeal, the Hon’ble Apex Court
taking note of the background facts and special features of th
opined that custodial sentence of six years would serve the ends of justice
It further observed that on the facts of the case, the case was covered
under Section 304 Part II of the IPC but found no appeal on behalf of the
accused persons apparently because of reduction of sentence.
33. Thus, the obtaining facts in the decision are quite distinguishable
vis-a-vis the case in hand.
34. The act of the appellant- original accused in the facts of this
case clearly show that he inflicted various injuries on the person of
deceased leading to his death. None of the Exceptions in Section 30
are attracted. The act amounts to murder within the meaning of
Section 300 of the IPC. The upshot of the above discussion is, we
see no reason to interfere with the impugned judgment. The appeal
therefore, stands dismissed.
(V. G. BISHT,J.) (PRASANNA.B.VARALE, J.)
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