Shamrao Pachunde Vs. State of Maharashtra  INSC 684 (8 December 2005)
Sinha & P.P. Naolekar
J U D G E
M E N T S.B. SINHA, J.
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.
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.
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.
was admitted on a limited question, i.e., as regard nature of offence.
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.
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.
road. Indisputably the relationships between the parties were strained.
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 .
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.
accused persons advancing towards them the complainant and the deceased started
retreading southwards, i.e., towards plot of the accused.
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.
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
Nandkumar had been admitted to the hospital by his brother Arvind.
information report lodged by Rajendra was recorded at 8.15 p.m. by Shri Thorat
against the accused for commission of offences under Section 307 read with
Section 34 of the I.P.C. Shri Thorat again received a call soon thereafter from
Dr. Aphale informing him that Nandkumar had died in the meanwhile.
learned Sessions Judge did not believe a part of the prosecution story, viz.,
that the complainant and the deceased fell into the gutter because of the
mischievous acts of tripping of their legs by the appellant and Ganpati. He was
also of the opinion that the accused nos. 5 and 6 had no role to play in the
incident. He furthermore held that the incident having taken place at the spur
of moment, no case of formation of common object or common intention had been
made out and consequently held that they were guilty of commission of offences
having regard to their individual acts.
Mohta, learned senior counsel appearing for the appellant despite limited leave
having been granted sought to argue the appeal on merit which was not
permitted. The learned counsel took us through the judgments of both the courts
below as also the evidence of P.W. 8 Rajendra, P.W. 9 Raju and P.W. 10
Shrirrang. It was contended that the findings of the Courts below holding the
appellant guilty of commission of an offence under Section 302 I.P.C. must be
considered by us in the context that the prosecution story was partly
disbelieved. It was urged that admittedly the incident occurred on the plot
owned by his father and in that view of the matter it cannot be said to be a
case where the appellant had any intention or motive to cause the death of the
deceased and the accused nos. 1 and 4 to cause injuries on P.W. 8. Learned
Counsel further urged that Exhibit 31, the knife, having not been found to be
blood-stained, the purported recovery thereof was irrelevant. It was further
submitted that as both the Courts below have concurrently found that the
incident occurred at the spur of the moment without there being premeditation
and meeting of mind, the appellant at best can be said to have committed an
offence under Part II of Sec. 304 of the Indian Penal Code. Our attention was
also drawn to the fact that weapons held by all the accused were available at
the spot having been carried by them for planting the almond tree. Mr. Mohta
further submitted that in a case of this nature the fourth Exception appended
to Section 300 of the I.P.C. would be attracted. Reliance in this behalf has
been placed in the case of Khanjan Pal v. State of U.P. (1990) 4 SCC 53 and
Bhojappa Hanumanthappa Choudannavar and ors. vs. State of Karnataka (2004) 2
Adsure, learned counsel appearing on behalf of the State, on the other hand,
submitted that the prosecution case has not only been supported by the
complainant but also by the independent eyewitnesses and having regard to the
fact that the appellant herein has inflicted two knife injuries on the vital
part of the body of the deceased, it is not a case where fourth Exception to
Section 300 of the I.P.C. shall apply.
regard to the fact that limited leave was granted in the matter, namely, on the
question of nature of offence, we are only called upon to determine the
question as to whether the offence of causing the death of Nandkumar at the
hands of the Appellant would come within the purview of the fourth Exception to
Section 300 I.P.C. or not.
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.
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.
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. The learned trial judge and consequently the High Court arrived at
a finding of fact that the complainant and the deceased fell into the gutter.
The garments put on by the deceased and the complainant as also the appellant
were seized. The learned trial Judge held that:
is also not in dispute that the none of the accused has sustained any injury
and, therefore, the fact that arrest panchanama is not prepared, does not show
that there is manipulation on the part of the I.O. clothes, of these accused
are attached under panchanama Ex 44.
panchanama is duly proved by P.W. 6 Chandrakant Babar. Panchanama shows that
Dhoti and Shirt of Shamrao were stained with blood. There were blood stains on
the waist-band and pant of accused No. 2 Subhash, and the Bandi and under-pant
of accused No. 3 Ganpati were soiled with silt. There were blood stains on the
pant of Tanaji. I have seen these garments at the time of arguments. It is
found that silt was on the sleeve of shirt near the cuff, of accused No. 2
Subhash. These stains are not mentioned in the panchanama. There was silt on all
the garments of accused No. 3 Ganapati. There were mud stains on the pant, art.
No. 22, of accused No.
It is pertinent to note here that according to accused No. 3 he had also fallen
in the gutter and, therefore, the fact that all his clothes are covered with
silt, is explained. These facts establish beyond doubt credibility of testimony
of complainant and eye- witnesses, P.W. 9 Raju Bavadekar and P.W. 10 Shrirang @
Ranga Jadhav that the complainant and his brother Nandkumar had fallen in the gutter
and they were assaulted in the gutter." The deceased and the complainant
thus having fallen into the gutter were not in a position to defend themselves.
juncture, we may notice the ante mortem injuries found on the body of the
deceased Nandkumar. The doctor who examined the deceased stated:
I examined the patient, I found that the patient was conscious. His general
condition was poor.
severe pallor. Pulse 110 per minute.
rate 40 per minute. B.P. 80 to 60 Hg.
gave history of assault at 7 p.m. with knife." The post mortem was also
conducted by him. The doctor further opined:
the time of post-mortem, I observed that the clothes of the deceased were wet
with dirty water. I have described external injuries in column No. 17. I have
also observed at the time of post-mortem that there was mark of blood over
chest, abdomen, legs hands mixed with dirty water stains. These observations
are mentioned in column No. 14 of post-mortem notes." He further stated
of the post-mortem notes are correct.
mortem notes are marked as Exh. 67. All these injuries were ante-mortem. Injury
No. 1 in col. No. 17 corresponds to finding in col. No. 29(e) i.e. injury to
left lung. Injury No. 4 is surgical. Injury No. 2 corresponds to internal
injury described in col. No. 21 showing that large intestine was punctured. The
blood seen in the peritoneam might on account of injury No.3 described in
column No. 17. Standing of pleura with blood is on account injury No. 1. Inj.
Nos. 1 to 3 and 5 can be caused by hard and sharp weapon. Art. No. 31-knife
shown to witness. Injury No. 1, 2 and 5 can be caused by this knife. Injury No.
5 can be caused while making efforts to ward off the blow. Pick-axe (Art. No.
5) shown to witness. Injury No. 3 can be caused by pointed end of the
pick-axe." In his opinion, the injury No. 1 by itself was sufficient in
the ordinary course of nature to cause death. Injury No. 2 and 3 can also cause
death but in that case the death will not be immediate. Those injuries however
would not be sufficient in the ordinary course of nature to cause death as
there could be chances of survival as well as of death. It was explained by him
that in his injury report he opined that injury no. 2 was muscle deep; at that
time he did not probe the injury. In his cross-examination, the doctor further
direction of injury No. 1 is medial upto the thylum of lung (root of lung).
Direction of injury no. 2 is downwards. Direction of injury no. 3 is medial. It
is correct to say that would cause by pick-axe (Article No.
have lacerations on the edges of the wound. I have not noted these lacerations
while describing injury No.3. It is correct to say that the weapon must enter
upto intestine for 6 inches for causing a puncture The depth of this injury no.
3 is about 6 inches. Now says, I cannot definitely say that inj. No. 3 can be
caused by Article No.
Considering the fact that the weapons pierced the body of 6 inches. It is a
fact that I have described inj.
No. 2 in
M.L.C. register as muscle deep. This is so because at that time I did not probe
the injury." The injury no. 1 therefore went right upto the right of the
lung. The appellant herein did not restrain himself after inflicting one injury.
He inflicted other and further injury also. The injuries, in view of the post
mortem report, admittedly were more than one.
thus, not a case where only one injury was inflicted by the accused on sudden
299 I.P.C. reads as under:
Culpable homicide. Whoever causes 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, or with the knowledge that he is likely by such act to cause
death, commits the offence of culpable homicide" Section 300 I.P.C. reads
Murder. Except in the cases hereinafter excepted, culpable homicide is murder,
if the act by which the death is caused is done with the intention of causing
death, or- Secondly,- If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the person to
whom the harm is caused, or- Thirdly,- If it is done with the intention of
causing bodily injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly,- If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury
as is likely to cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as aforesaid."
Exception 2 to the said Rule postulates that "when culpable homicide is
not murder if the offender, whilst deprived of the power of self-control by
grave and sudden provocation, causes the death of the persons who gave the
provocation or causes the death of any other person by mistake or
accident." Exception 4 to the said Rule reads thus:
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." In this case Exception 2 has no application as the Appellant
cannot be said to have committed offence whilst deprived with the power of
self- control by grave and sudden provocation, as has been noticed
hereinbefore, that in the facts and circumstances of the case the deceased and
the complainant cannot be said to have caused any provocation to the Appellant.
distinction between the offences of culpable homicide and murder is the
presence of special mens rea which consists of four mental attitudes in the
presence of any of which the lesser offence becomes greater. These attitudes
are stated in Section 300 IPC as distinguishing murder from culpable homicide
not amounting to murder.
ingredients of the said Exception 4 are (i) there must be a sudden fight; (ii)
there was no pre-meditation; (iii) the act was committed in a heat of passion
and (iv) the assailant had not taken any undue advantage or acted in a cruel
event the said ingredients are present, the cause of quarrel would not be
material as to who offered the provocation or started assault.
however, the occurrence must be sudden and not pre-meditated and the offender
must have acted in a fits of anger.
Rajendra Singh & Ors. v. State of Bihar (2000) 4 SCC 298 at p.
as the third contention of Mr. Mishra is concerned, the question for
consideration would be as to whether the ingredients of Exception 4 to Section
300 of the Indian Penal Code can be said to have been satisfied.
necessary ingredients of Exception 4 to Section 300 are:
absence of premeditation;
undue advantage or cruelty.
occasion must be sudden and not as a cloak for pre-existing malice. It is only
an unpremeditated assault committed in the heat of passion upon a sudden
quarrel which would come within Exception 4 and it is necessary that all the
three ingredients must be found. From the evidence on record it is established
that while the prosecution party was on their land it is the accused who
protested and prevented them from continuing with ploughing but when they did
not stop the accused persons rushed to the nearby plot which is their land and
got weapons in their hands and assaulted the prosecution party ultimately
injuring several members of the prosecution party and causing the death of one
of them while they were fully unarmed. In this view of the matter on scrutinizing
the evidence of the four eyewitnesses PWs 2, 4, 7 and 8 who have depicted the
entire scenario it is not possible for us to agree with the submission of Mr.
Mishra, learned Senior Counsel appearing for the appellants that the case is
one where Exception 4 to Section 300 would be applicable. We, therefore, reject
the said submission of the learned counsel." 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
and ors. vs. State of M.P. [1991 Suppl. (2) SCC 725] a three Judge Bench of
this Court rejected a similar contention in a case where the accused inflicted
more than one injury stating :
evidence of PW 4, Dr. C.K. Dafal, however, shows that the deceased was
belaboured mercilessly. There were innumerable contusions on the entire body of
the deceased from head to toe. The wrist, humerus, etc. were fractured and the
whole body was full of rod marks. There were several contused lacerated wounds
on the entire face and the left eye was bleeding.
totality of the injuries caused to the victim clearly supports the finding of
both the courts below that the appellants went on belabouring the deceased till
he died on the spot.
Thangaiya v. State of T.N. [(2005) 9 SCC 650], relying upon a celebrated
decision of this Court in Virsa Singh v. State of Punjab [1958 SCR 1495], the
Division Bench observed:
These observations of Vivian Bose, J. have become locus classicus. The test
laid down by Virsa Singh case for the applicability of clause
"thirdly" is now ingrained in our legal system and has become part of
the rule of law. Under clause "thirdly" of Section 300 IPC, culpable
homicide is murder, if both the following conditions are satisfied: i.e. (a)
that the act which causes death is done with the intention of causing death or
is done with the intention of causing a bodily injury; and (b) that the injury
intended to be inflicted is sufficient in the ordinary course of nature to
cause death. It must be proved that there was an intention to inflict that
particular bodily injury which, in the ordinary course of nature, was
sufficient to cause death viz. that the injury found to be present was the
injury that was intended to be inflicted.
according to the rule laid down in Virsa Singh case even if the intention of
the accused was limited to the infliction of a bodily injury sufficient to
cause death in the ordinary course of nature, and did not extend to the
intention of causing death, the offence would be murder. Illustration (c)
appended to Section 300 clearly brings out this point." Therein it was
held that there is no fixed rule that whenever a single blow is inflicted
Section 302 would not be attracted.
and fast rule, however, can be laid down as different situations may arise
having regard to the factual matrix involved therein.
Pal v. State of U.P. [(1990) 4 SCC 53] relied upon by Mr. Mohta is
distinguishable. In that case altercations between the deceased and the accused
was admitted. A scuffle took place in course whereof the deceased received
injuries. Evidence brought on records clearly established that the whole
incident took place as a result of sudden development. The appellant therein
was found to have acted at the spur of the moment and without any
case, there was no provocation from the side of the deceased.
not make even any causal remark which could provoke him nor the parties entered
in altercations which culminated in the incident.
Bhojappa Hanumanthappa (supra) whereupon again Mr. Mohta placed reliance the
fact of the matter was entirely different as would appear from the following :
commotion took place in front of the house of Bhimappa (PW1) during the night
of 10-9-1984. The appellant and his co-accused were involved in assaulting
Bhimappa and his brothers-in-law. While the brawl was in full swing PW 1's
daughter Renu Kavva, a twelve year old little girl, rushed to the scene presumably
to rescue her father whom she would have thought to be in a dangerous
situation. The appellant herein then swished a wooden hammer he was then
possessed with, which hit on the head of Renu Kavva, which unfortunately turned
out to be fatal. Therefore, the High Court, on the appeal against acquittal,
found that the appellant did not intend to inflict the injury which caused her
death. We are in agreement with the finding of the High Court that the offence
is only under Section 304 Part II IPC." In the afore-mentioned situation,
this Court opined that the appellant therein had no ire against the little girl
either before or during the occurrence. It was an act done in a rash mood with
no intention to cause even grievous hurt to her.
at hand stands absolutely on a different footing. 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.
regard to the facts and circumstances of the present case and for the reasons
stated hereinbefore, we are of the opinion that it is not a fit case where a
different opinion from that of the trial court as also the High Court can be
arrived at. Both the courts, in our considered view had rightly convicted the
appellant herein for commission of an offence under Section 302 of the I.P.C.
The appeal being devoid of any merit is dismissed.