IMPORTANT POINT
Where accused assaulted deceased though in a sudden fight but inflicted repeated knife blows when deceased unarmed had fallen in a gutter whereby accused took undue advantage of helplessness of deceased, offence would be murder and not culpable homicide not amounting to murder.

Headnote:Indian Penal Code, 1860—Section 302—Accused—Appellant was convicted under after he with five other accused were tried on a charge u/s 147, 148, 302/149, 323 and 324/149 I.P.C.—Accused had assaulted deceased with knife—Appeal—Appeal was admitted on limited question of nature of offence—Parties were members of a joint family—Complainant and his brothers were bearing grudge against accused party on ground of inequitable division of joint family properties—Deceased and complainant were standing on plot on their side and accused were preparing to plant a tree on their side and altercation took place—Accused holding iron rod, pick-axe, shovel and appellant holding knife ran towards complainant and deceased who started retreading and fell in a gutter—Complainant-PW8 received injuries in the assault and deceased was inflicted knife blows by appellant and one blow was given on chest below left nipple—Defence contention that offence of appellant fell u/s 304 part II I.P.C. as occurrence took place on spur of moment without there being pre-meditation—Complainant and deceased were assaulted in gutter itself when accused were carrying deadly weapons—Injury No.1 on deceased went right upto right of the lung and was it self sufficient to cause death—Appellant went on to inflict more injuries—Manner in which deceased and complainant were assaulted showed that assailants took undue advantage of situation—Repead blows on deceased were done with intention to cause bodily injuries and such injuries were sufficient in ordinary course of nature to cause death—Conviction called for no interference.
       Held : The genesis of the occurrence is not in dispute. The complainant and the deceased were watching plantation of an almond tree in their premises by the accused from their own land. They cannot be said to have caused any annoyance to them. It is the appellant and his brother who started exchange of words by asking as to what they had been seeing. The answer by the complainant to the effect that they had been standing on their own land cannot be said to be a cause for the accused being greatly provoked so as to cause bodily injuries on the deceased and the complainant. The appellant and his companions who were armed with weapons assaulted the deceased and the complainant who were unarmed and must have been taken by surprise. Conceivably appellant nos. 1, 3 and 4 were carrying iron rod, pick-axe and shovel respectively for the purpose of the plantation of the tree, but the knife, which was the weapon of offence and was being carried by the appellant herein, was not required for the said purpose. Why he was carrying such a big knife remains unexplained. Accused No. 1 and 4 as well as the appellant advanced towards the deceased and the complainant as a result whereof they went near the gutter which was just by the side of the land of the accused. It may or may not be that both the deceased and the complainant were tripped into the gutter by the mischievous acts on the part of the appellant and his brother Ganpati, but the fact remains that they fell therein. The learned trial Judge in his judgment found that while retreading, they fell into the gutter themselves. The complainant and the deceased were assaulted in the gutter itself. They were not carrying any weapon whereas the accused were carrying deadly weapons. The effect of assault with deadly weapons on the vital part of the body of the deceased by the appellant must be considered in the aforementioned factual background. (Paras 14 & 15)
       Even if it be assumed that responses to the questions put to the deceased or the complainant caused provocation, the same evidently was because of the pre-existing malice and the bias which the Appellant had against them. Moreover, the manner in which the deceased and the complainant were assaulted show that the assailants took undue advantage of the situation as they fell into the gutter and were, thus, in a helpless condition. (Para 28)
       The reported blows on the body of the deceased evidently were done with an intention to cause bodily injuries to him and such injuries were sufficient in the ordinary course of nature to cause death, the offence would come within the purview of culpable homicide amounting to murder as envisaged under Section 300 of the I.P.C. (Para 37)

JUDGMENT

S.B. Sinha, J.—The sole appellant herein was prosecuted for commission of offences with five others under Sections 147, 148, 302 read with Section 149, 323, 324 and 149 of the Indian Penal Code.

2. Shamrao, father of the Appellant, was accused no. 1. The accused nos. 3 and 4 Ganpati and Tanaji were his brothers whereas accused no. 5 Vijay Dattatray Salunke was his nephew. The accused no. 6 Vijay Gangaram Patel was a close family friend.

3. By reason of its judgment dated 08.11. 1989 the learned trial Judge while convicting the Appellant under Section 302 of the IPC and sentencing him to undergo imprisonment for life and pay a fine of Rs. 10,000/- or in default thereof to undergo rigorous imprisonment for three years, and the accused nos. 1 and 4 under Section 324 of the IPC; acquitted the others of all charges. The High Court in the appeals preferred by the appellant therein affirmed the judgment passed by the learned trial Court but modified the sentence in respect of accused nos. 1 and 4 to the period already undergone.

4. This appeal was admitted on a limited question, i.e., as regard nature of offence.

5. Before adverting to the contentions raised in the appeal we may notice the fact of the matter in brief. The parties were members of a joint family, Shamrao, accused no. 1 and Prahlad were two brothers. Whereas accused Nos. 2 to 5 belong to the branch of Shamrao; the deceased and the complainant were sons of Prahlad. A partition took place between the said brothers in 1984; whereby the northern portion of the open plot by the side of Haripur Road was allotted to the share of Prahlad and the southern one to Shamrao. The northern and southern portion of the plot is divided by a 15 ft. wide road. Indisputably the relationships between the parties were strained.

6. All accused except accused no. 6 and the deceased as also the complainant, sons of Prahlad, are thus closely related. It is not in dispute that the complainant and his brothers had been bearing grudge against Shamrao and his sons inter alia on the ground of inequitable division of the joint family properties. Their residential houses of both parties were side by side.

7. On the day of occurrence an almond tree was being planted in their side of open plot by the accused. Rajendra, PW8 and his brother Nandkumar, deceased were standing in their portion of the open plot allegedly waiting for their friends for going to participate in a game of Kabaddi to which accused nos. 2 and 3 asked them as to what they had been watching. They replied that they were standing on their own plot belonging to their father. The accused on that rushed towards them with weapons accused no. 1 had an iron-rod, accused no. 2 had a knife, accused no. 3 was carrying a Pick-axe and accused no. 4 a shovel in their hand. Seeing accused persons advancing towards them the complainant and the deceased started retreading southwards, i.e., towards plot of the accused. They fell in a gutter. Shamrao and Tanaji allegedly assaulted Rajendra whereas Nandkumar was assaulted by the appellant and Ganpati, accused no. 4 with the weapons in their hands. Rajendra tried to evade the assault on him by Shamrao with iron-rod as a result whereof he received injury on his back. A spade blow was given by Tanaji on his right foot. The appellant is said to have inflicted knife blows on Nandkumar, one on the chest below the left nipple and the other on the side near the arm-pit; whereas Ganpati is said to have inflicted blow on his stomach on the left side above hip bone by using pick-axe. The said incident is said to have been witnessed by Raju, P.W.9 and Shrirang Jadhav, P.W. 10 who are friends of Rajendra and who were coming back from a temple. The accused thereafter ran away.

8. Whereas the deceased was shifted to hospital in a Rickshaw, the complainant went to the Police Station alone in another Rickshaw. It is not in dispute that Baburao Thorat P.W. 16, the P.S.O. received a phone call from Dr. Aphale informing that

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2005 Supreme(SC) 1043

IMPORTANT POINTWhere accused assaulted deceased though in a sudden fight but inflicted repeated knife blows when deceased unarmed had fallen in a gutter whereby accused took undue advantage of helplessness of deceased, offence would be murder and not culpable homicide not amounting to murder.

Cases Referred (4)

IMPORTANT POINT
Where accused assaulted deceased though in a sudden fight but inflicted repeated knife blows when deceased unarmed had fallen in a gutter whereby accused took undue advantage of helplessness of deceased, offence would be murder and not culpable homicide not amounting to murder.