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2015 Supreme(SC) 786
SUPREME COURT OF INDIA
KURIAN JOSEPH, ADARSH KUMAR GOEL, JJ.
Sunil Khergade – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 812 of 2008
Decided on : 13-08-2015
IMPORTANT POINT
Private defence u/s 97 and the benefit under exception to section 300 do not go together.
When an armed person takes undue advantage of unarmed person and inflicts fatal injury, he is not entitled to benefit of section 304 Part-II.
Headnote:(a) Indian Penal Code, 1860 – Section 97 and 300, Exception – Private defence u/s 97 and the benefit under exception to section 300 do not go together. (Para 8)
(b) Code of Criminal Procedure, 1973 – Section 154 – FIR need not necessarily contain each and every particular injury sustained by the deceased – FIR mentioning only one injury, but evidence establishing three injuries – Evidence prevails over FIR. (Para 9)
(2010) 4 SCC 429 – Relied upon
(c) Indian Penal Code, 1860 – Section 302 and 304 Part II – Deceased and his family members wholly unarmed – Appellant and his brother armed – Appellant inflicting three injuries one of which becoming fatal – Appellant taking undue advantage of situation – Rightly convicted u/s 302 – Section 304 Part II not attracted. (Para 10)
(2005) 10 SCC 404 – Relied upon
(2010) 4 SCC 429; (2007) 1 SCC 699; (2007) 3 SCC 118; (2007) 3 SCC 119 – Distinguished
Facts of the case:
The appellant along with his younger brother was convicted under Section 302 r/w section 34 IPC and sentenced to undergo life imprisonment. They were also sentenced to pay a fine of Rs.300/-each, a default sentence of two months.
High Court declined to interfere with the conviction and sentence.
Finding of the Court:
Appellant has been rightly convicted u/s 302 IPC.
Result: Appeal dismissed.
Judgment
Kurian, J.
1. 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.
2. 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.
3. 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.
4. 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.
2. Abrasion on chest wall left side above the stab wound 4 x ¼ cm.
3. Incised wound on back left sides 5 cm x ½ cm and akin deep tapering laterally.”
5. 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.
6. 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.
7. In appeal, having analysed the evidence at length, the High Court was not inclined to take a different view.
8. 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.
9. It is submitted that there was only one injury that is mentioned in the First Inform
