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SUPREME COURT OF INDIA
T.S. Thakur, Gyan Sudha Misra, J.
VIJAY RAMKRISHAN GAIKWAD – Appellant
Vs.
STATE OF MAHARASHTRA AND ANOTHER – Respondent
Criminal A. No. 330 of 2012 (Arising out of SLP (Criminal) No. 5777 of 2010)
Decided on : 02-02-2012
Indian Penal Code – Section 302 – imprisonment – Offence of murder – Injury - deceased was rushed to hospital where he died while the Appellant was nabbed at some distance from spot after a brief chase by others who were present on the spot - In hospital statement of was recorded by in which she narrated the sequence of events leading to the occurrence – Held, when a person commits an act he is presumed to expect the natural consequences. But from the mere that injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature - However presumption arises that he intended to cause that particular injury - In such a situation the court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case. However, as pointed out case the weapon used degree of force released in wielding it antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated whether injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of relevant factors. These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused - In some cases an explanation may be there by accused like exercise of right of private defence or the circumstances also may indicate the same - Likewise there may be circumstances in some cases which attract the first exception - In such cases different considerations arise and the court has to decide whether the accused is entitled to the benefit of the exception, though prosecution established that one or the other clauses of Section Indian Penal Code is attracted - We accordingly allow this appeal in part set aside the conviction of the Appellant for offence punishable for murder Indian Penal Code and convict the Appellant for culpable homicide not amounting to murder punishable Part Indian Penal Code and sentence him to undergo rigorous imprisonment for ten years - Appeal disposed
ORDER
1. Leave granted.
2. This appeal arises out of an order passed by the High Court of Bombay at Aurangabad whereby Criminal Appeal No. 290 of 2008. filed by the Appellant has been dismissed, the Appellant's conviction u/s 302 of the Indian Penal Code and the sentence of life imprisonment with a fine of Rs. 20,000/- awarded to him upheld. In default of payment of fine the Appellant has been sentenced to undergo rigorous imprisonment for a further period of four months. The prosecution case, in brief, is as under:
3. The deceased. Utkarsha Barku Pawar, was a resident of Swami Narayan Colony near Priti Sudhaji High School, Dhule. On 8.9.2007, at about 6.30 p.m. the Appellant along with four others is alleged to have come to the front of the house of Kamalabai (PW6), mother of the deceased and called out for the deceased. In response the deceased appears to have stepped out of the house along with his brother Gaurav (PW8). The prosecution case is that when the duo came out of their house the Appellant and Ors. accompanying him started abusing the deceased and his brother. The exchange led to a scuffle between the deceased and his brother on the one side and the Appellant and his four companions on the other. It is in the course of this scuffle that the Appellant appears to have taken out a knife, stabbed and grievously injured the deceased-Utkarsha Barku Pawar. The deceased was rushed to the hospital where he died, while the Appellant was nabbed at some distance from the spot after a brief chase by others who were present on the spot. In the hospital, the statement of Smt. Kamalabai (PW6) was recorded by the PSI Mahire (PW11), in which she narrated the sequence of events leading to the occurrence. FIR No. 178/2007 was on that basis registered in Police Station Azad Nagar for offences punishable u/s 302 read with Section 34 of the Indian Penal Code.
4. The police completed the investigation and filed a charge sheet against the Appellant and his companions for commission of murder of the deceased punishable u/s 302 read with Section 34 of the Indian Penal Code. On the basis of the evidence adduced before it, the trial Court found presence of accused Nos. 2 to 5 at the place of incident to be doubtful, hence acquitted them of the charges framed against them. Significantly enough the first information report did not mention the names of the companions of the Appellant who were subsequently roped in on the basis of a supplementary statement made by Kamalabai (PW6). The Appellant was, however, found guilty of murder and sentenced to undergo imprisonment for life and a fine of Rs. 20,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of four months, as already mentioned. Aggrieved by the conviction and sentence, the Appellant appealed to the High Court of Bombay at Aurangabad Bench. The High Court has by the impugned judgment and order dismissed the said appeal and affirmed the view taken by the trial Court.
5. When the matter first came up before this Court on 17.9.2010, this Court issued notice to the Respondent, restricted to the question of nature of offence committed by the Appellant. The limited issue on which Learned Counsel for the parties therefore made their submissions was whether the fact situation, in the present case, discloses the commission of an offence punishable u/s 302 Indian Penal Code. Certain features which have persuaded us to hold that the facts do not make out a case of murder punishable u/s 302 Indian Penal Code may be summarised at this stage.
6. The first and foremost of the circumstances is that the incident in question was not pre-meditated. The evidence on record establishes that the Appellant was provoked by certain accusations made against him by the deceased. It is common ground that the Appellant as also family of the deceased were engaged in the business of breeding pigs. The deceased it appears had accused the Appellant of being a thief stealing pigs. That bei
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