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2009 Supreme(SC) 940
2009(4) Supreme 75
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
S.B. Sinha and Dr. Mukundakam Sharma, JJ.
Bala Baine Linga Raju — Appellant
versus
State of A.P. — Respondent
Criminal Appeal No. 911 of 2009
[Arising out of SLP (Crl.) No. 1527 of 2008]
Decided on : 05-05-2009
For the Appellant :Anand, D. Bharat Kumar, Abhijit Sengupta, Advocates.
For the Respondent:Mrs. D. Bharathi Reddy, Advocate.
IMPORTANT POINT
When an accused was charged with an offence u/s 302 and convicted u/s 304 Part I, Provisions of the Act are not applicable.
Headnote:(a) Indian Penal Code, 180 – Section 300, Thirdly – Only because a single knife blow had been given, the same, by itself, would not bring the case within the purview of ‘Thirdly’ of Section 300 wherefor the court is required to take into consideration the surrounding circumstances. (Para 12)
AIR 1958 SC 465; 2008 (6) SCALE 433; (1976) 4 SCC 382; 2009 (3) SCALE 695 – Relied upon.
AIR 1997 SC 687 – Distinguished impliedly.
(b) Indian Penal Coe, 1860 – Section 300 – Once it is held that injury was caused on a vital part of the body with knowledge that it may cause death or such injury which is likely to cause death, the ingredients of provisions of Section 300 must be held to have been proved. (Para 13)
AIR 1958 SC 465 – Relied upon.
(c) Probation of Offenders Act, 1958 – Section 4 – When an accused was charged with an offence u/s 302 and convicted u/s 304 Part I, Provisions of the Act are not applicable. (Para 17)
(d) Code of Criminal Procedure, 1973 – Section 235(2) – In view of the sentence imposed being u/s 304 Part I, IPC which is just; non-compliance with section 235(2) though irregular, is not fatal. (Para 18)
Facts of the case :
1. The parties are neighbours. On 24.08.1999 PW-2, wife of the deceased, while feeding her child scolded him describing him as mischievous. Accused No. 2 thought that the said remarks of PW-2 were directed against her. She and her husband picked up a quarrel with PW-2. The deceased, the husband of PW-2, came there and got himself involved in the quarrel. Appellant who was inside the house came out with a scissor and stabbed the deceased.
2. Trial court convicted and sentenced the accused.
3. High Court while upholding the judgment and conviction of sentence passed by the learned Additional Sessions Judge under Section 304 Part I of the IPC and setting aside the order of sentence of imprisonment of seven years, released the appellant under the Probation of Offenders Act, 1958 by purporting to grant appropriate amount of compensation to PW-2.
Finding of the Court :
In the facts of the case it was possible to arrive at a conclusion that the appellant in fact is guilty of commission of an offence under Section 302.
High Court erred in applying the Probation of Offenders Act, 1958 in this case.
Result : Appeal disposed of.
JUDGMENT
S.B. Sinha, J.—
1. Leave granted.
2. Appellant is before us aggrieved by and dissatisfied with a judgment and order dated 23.04.2007 passed by a learned Single Judge of the High Court of Judicature at Andhra Pradesh in Criminal Appeal No. 1159 of 2002 whereby and whereunder it, while upholding the judgment and conviction of sentence passed by the learned Additional Sessions Judge under Section 304 Part I of the Indian Penal Code and setting aside the order of sentence of imprisonment of seven years, released the appellant under the Probation of Offenders Act, 1958 (for short “the Act”) by purporting to grant appropriate amount of compensation to PW-2, directing:
“...Thus, it is ordered that the appellant shall be released under Section 4 of Probation of Offenders Act, 1958 on his executing a personal bond for Rs. 10,000/- to keep peace for a period of two years and on his further payment of compensation of Rs. 1,00,000/- (Rupees one lakh only) to P.W.2, wife of the deceased, under Section 5 of the Probation of Offenders Act, 1958. As the provisions of the Probation of Offenders Act, 1958 do not provide for default sentence in case of failure to pay compensation and provide only for recovery of the same as fine, it is specifically ordered that the compensation awarded shall be treated as the one under Section 357 Cr.P.C. as well and in case of failure on the part of the appellant to pay compensation, he shall undergo imprisonment for three years. Time for payment of compensation is three months from the date of receipt of a copy of this order.”
3. This Court while issuing notice directed the appellant also to show cause as to why the sentence shall not be enhanced.
4. Before, however, we consider the merit of the matter, we may notice the factual matrix involved herein.
The parties are neighbours. The incident took place on 24.08.1999 at village Chilkur. Allegedly, PW-2, wife of the deceased while feeding her child scolded him describing him as mischievous. Accused No. 2 thought that the said remarks of PW-2 were directed against her. She and her husband picked up a quarrel with PW-2. The deceased, the husband of PW-2, came there and got himself involved in the quarrel. Appellant who was inside the house came out with a scissor and stabbed the deceased.
5. The learned Trial Judge keeping in view the facts and circumstances of this case, opined:
“Hence, it won’t attract the ingredients of the alleged offence under Section 302 I.P.C. and it attracts the offence under Section 304 Part I of I.P.C.”
6. Appellant was sentenced to undergo seven years’ imprisonment. He preferred an appeal thereagainst. By reason of the impugned judgment, as noticed hereinbefore, while maintaining the judgment of conviction and sentence passed by the learned Trial Judge under Section 304, Part I of the Indian Penal Code, the impugned direction was issued.
7. Mr. Anand, learned counsel appearing on behalf of the appellant would contend that keeping in view the age of the appellant on the date of commission of the offence, the High Court should have invoked Section 6 of the Act and in that view of the matter, the impugned judgment cannot be sustained.
8. Mrs. D. Bharathi Reddy, learned counsel appearing on behalf of the respondent, on the other hand, supported the impugned judgment.
9. Before adverting to the contentions raised by the parties, we may notice that the lung and heart injuries were caused to the deceased. He died “due to lot of bleeding”.
Appellant was inside the house. He admittedly was not a party to the quarrel. So far as he was concerned, neither PW-2 nor the deceased caused any provocation to him. The manner in which the assault had taken place must also be noticed inasmuch as he had injured the lung and heart of the deceased. It is also not a case where the lives of the parents were in danger.
10. Section 300 of the Indian Penal Code provides that culpabale homicide would be murder if the act by which the death is caused is d
