Ramesh
Laxman Pardeshi Vs. State of Maharashtra [1987] INSC 101 (10 April 1987)
OZA,
G.L. (J) OZA, G.L. (J) KHALID, V. (J) CITATION: 1987 SCR (2) 907 1987 SCC Supl.
1 JT 1987 (3) 5 1987 SCALE (1)826
ACT:
Indian
Penal Code, 1860--S. 302 or 304 Part I--Evidence indicated exchange of hot
words--Prosecution Witnesses deliberately suppressed the exact words
used--Whether inference could be drawn that if those words were given out, it
would have damaged the prosecution case--Whether the words used by the deceased
and his friends caused provocation to accused--No premeditation--Injury caused
at spur of moment and in heat of passion proved fatal--Whether intention to
cause death can be attributed--Whether the case would fall within the purview
of s. 302 or 304 Part I.
HEADNOTE:
The
appellant along with others was prosecuted for causing the death of Sheroo
Lala. It was alleged that during the exchange of hot words between the party of
the deceased and the party of the appellant, the appellant inflicted a stab
wound in the stomach of Sheroo with a Rampuri knife as a result of which he
died. On trial the appellant was convicted for an offence under s. 302 of the
Indian Penal Code and sentenced to imprisonment for life and on appeal his
conviction and sentence was maintained.
In
the appeal to this Court, on behalf of the appellant it was contended; (1) that
Maruti one of the accused persons had a contused lacerated wound on the head on
the right occipital parietal region and the defense version was that when
exchange started between Sheroo and Maruti, first Maruti was assaulted and then
in exchange, one another accused took a knife and gave a blow to the deceased
and thus plea of the accused was that this injury was inflicted on Sheroo in
the exercise of right of private defense; and (2) that both the Courts below
came to the conclusion that as soon as Sheroo and his party arrived near the
hand-cart of Badshah, there was a hot exchange between the two sides.
The
witnesses examined by the prosecution have not clearly stated what words were
uttered and the trial court felt that the language was obscene and probably the
witnesses did not like to mention whereas the High Court felt that the
witnesses were not in a position to mention the exact words.
However,
both the Courts did reach a conclusion that there was a hot exchange between
the two groups and, therefore, in 902 such a situation it could not be doubted
that the party of the accused was provocated and on such grave and sudden
provocation at the heat of the moment, the appellant who was carrying a knife
took it out and inflicted only one blow and did not even attempt a second blow
and the findings of the both the Courts is that this happened at the spur of
the moment without pre-meditation and in the heat of the passion and,
therefore, at best the appellant could be convicted for an offence under s. 304
Part II because in these circumstances no intention of causing death could be
attributed to the appellant and since he has already served for more than 7
years of sentence, no useful purpose would be served by sending him to serve a
short period of sentence.
On
behalf of the respondent-State, it was contended that there was some previous
trouble between the parties which furnish some motive and this opportunity was
taken to seek vengeance.
Allowing
the Appeal,
HELD:
1. The conviction of the appellant is altered from one under s. 302 to s. 304
Part I I.P.C. and since the appellant has already served out more than 7 years,
he is sentenced to sentence already undergone. [909C]
2.
The plea of right of private defense taken by the accused persons including the
appellant has not been accepted by the Courts below. Both the Courts below have
rejected the story that it was not the appellant but another accused who wiped
out a knife and inflicted the injury on Sheroo and that first injury was caused
on Maruti. There is no evidence to indicate that there was any material
sufficient to come to the conclusion that it was Maruti who was assaulted
first. On the contrary the consistent evidence indicated that on arrival of
Sheroo it was Maruti who started the verbal exchange and in view of this
evidence, the submission that the injury was inflicated on Sheroo in the
exercise of right of private defence cannot be accepted. [906H; 907A-B]
3.
The Trial Court was right in concluding that "something provocative seems
to have happened". It is apparent that the prosecution witnesses did not
say or give out what words were spoken. The only inference could be that if
those words were given out, it would have damaged the prosecution case.
[908B-C]
4.
On the arrival of the complainants' party some hot exchange began. Words were
spoken, the witnesses have categorically stated that 903 they were speaking
loudly and still prosecution witnesses have chosen to give excuse for not
speaking out words by saying that they could not hear those words and this
clearly goes to show that the words used by the deceased and his friends were
such which caused provocation. Both the Courts came to the conclusion that
there was no pre-meditation. It was at the spur of the moment and in the heat
of passion and it is also not disputed that only one blow was inflicted by the
present appellant and the injury ultimately caused proved to be fatal. [908C-E]
5.
The story of some earlier trouble and the motive suggested by the prosecution
has not been accepted by both the Courts below and it is also clear that there
was not a pre-arranged plan. Admittedly it was by chance that the party of
Sheroo also chose to go to the same spot i.e.
hand-cart
of Badshah at that odd hour at night where the appellant and his friends had
already reached. It is not as if seeing the deceased Sheroo and his friends
that the appellant and his friends reached. On the contrary, Sheroo and his
friends arrived later. In this view of the matter, both the Courts were right
in coming to the conclusion that hot exchange of filthy language resulted in
some kind of provocation in the heat of passion without premeditation this
injury was inflicted and in the circumstances it could not be held that it was
inflicted with an intention to cause death. The only intention which could be
attributed to the appellant in the circumstances of this case could be to cause
such bodily injury as is likely to cause death. Consequently, the appellant
could only be convicted for an offence under s. 304 Part I. [908G-H; 909A-B]
Criminal
Appellate Jurisdiction: Criminal Appeal No. 8 of 1978.
From
the Judgment and Order dated the 17.10.1977 of the Bombay High Court in
Criminal Appeal No. 1007 of 1974.
Rajinder
Singh and A.K. Srivastava for the Appellant. M.N. Shroff for the Respondent.
The
Judgment of the Court was delivered by OZA, J. This appeal has been filed after
obtaining leave from this Court against the conviction of the appellant under
Sec. 302 and sentence of imprisonment for life recorded by Additional Sessions
Judge Greater Bombay in Sessions Case No. 204/73 and maintained on appeal by
High Court of Bombay by its judgment dated 17th Oct., 1977.
904
The prosecution case at the trial was that on the midnight intervening between
25th/26th July, 1972 the appellant alongwith others went to traffic island near
Bandra, situated on Linking Road where Badshah Umarbax was doing the business
of vending eatables from his hand cart kept in that island. The eatables
included heavy non-vegetarian items-.
Badshah,
P.W. 4 was assisted in his trade by his brother-in-law Sadatali, P.W. 5 and
some other servants. It is alleged that the appellant alongwith his friends had
reached there to celebrate the victory of Carom game of the Carom Club run by
accused No. 1 and on reaching near the cart accused Nos. 1 and 4 placed order
for meat and other preparations.
As
the dishes were getting ready the deceased Sheroo Lala came there, driving his
red Fiat Car MRT 566. By his side was his relation Ahmedkhan, who, though cited
as a witness, was not examined at the trial, as it was reported that he was not
available. In the back seat sat Chutkhan, P.W. 2 and Alikhan, P.W. 3. It
appears that Chutkan and Kala Topi met in a hotel in Khar and while they were
conversing, Sheroo Lala came there together with Alikhan in the Car from
Santacruz side. After gossipping for sometime Sheroo Lala proposed to go to Badshah's
hand cart on Linking Road, for taking food. That is how all of them arrived
near the Badshah's hand cart where the appellant and his friends had reached
earlier. This car went and stopped very near the hand cart. The other cars
which brought the appellant and his friends earlier were parked there. It was
at 11.45 p.m.
and
there were two petromax lights burning on the hand cart.
There
were also some street lights. It is alleged that Sheroo Lala got down from his
car and proceeded for placing the order and just as he did so he was stopped by
Maruti, one of the accused persons who addressed him in a loud tone.
This
was followed by heated exchange of words and suddenly the present
appellant-accused No. 1 in the courts below who was behind Maruti came forward
with an open Rampun knife and inflicted a stab wound in the stomach of Sheroo.
The other accused also assaulted Sheroo Lala with a stick on the head.
The
other persons who were tried, it is alleged were also there. It is alleged that
in the meantime Chutkhan, Kala Topi and Ahmedkhan had come near the spot where
Sheroo was stabbed and Sheroo keeping his hand on the injury walked towards the
north and ultimately fell down in a pool of blood collected on the spot.
Chutkan, Kala Topi and Ahmedkhan, it is alleged, got down from the car probably
to meet the assailants but just then Maruti who was accused No. 3 in the courts
below, picked up a Sun from Badshah's hand cart and aimed a blow at Chutkan but
Chutkan grappled with it and got hurt near the thumb on the palm of 905 his
right hand. Another blow was aimed by Maruti, but it was warded of by Chutkhan
and it is alleged that at that time accused No. 4 gave a blow with a bamboo on
the right hand of Chutkhan and accused No. 7 gave a blow on Ahmedkhan with an
iron bar. Ahmedkhan fell down and sometime later he went away himself. It is
alleged that when this was happening, Kala Topi removed a bamboo, from
Badshah's handcart and started flourishing it in defence. The other also were
doing something to defend themselves. According to the prosecution in this
exchange some injuries were inflicted but so far as the present appeal is
concerned, we are not concerned with it as we are concerned with only the
appellant Ramesh Laxman Pardeshi.
Chutkhan
and Kala Topi, in the meantime, managed to board a taxi and went to K.E.M.
Hospital for treatment. They reached the Hospital at 1.50 A.M. At about 1.20
A.M. accused No. 3, who was having a bleeding injury on the head, visited the
Bandra Police Station alongwith accused No. 4 to lodge a complaint against
Sheroo and his companions. S.I Patl, P.W. 17, who was on duty at the Bandra
Police Station, sent Maruti to Podar Hospital alongwith form for medical
examination in the car of Subhash, another accused person.
Dr.
Parandekar, P.W. 15 who was attached to K.E.M. Hospital at the relevant time as
Casualty Medical Officer examined Kala Topi and Chutkhan whereas Dr. Muzavar,
P.W. 13 examined Maruti at Podar Hospital. In the meanwhile Police Constable
Sawant, P.W. 10, who was on patrol duty that night came across the injured
Sheroo on the street north of the traffic island, mortally wounded. The
constable therefore arranged for his removal to K.E.M. Hospital where he
reached at about 2.20 A.M. and informed at 2.45 S.I. Patil of Bandra Police
Station about this. Dr. Parandekar examined Sheroo Lala at 2.20 A.M. as an
unknown person. His general condition was poor and found an incised injury on
his person.
There
was another C.L.W. on the left frontal region. He was admitted in the ward and
one Dr. Aggarwal, P.W. 9 examined him at 2.25 A.M. and found him dead.
S.I.
Patil received a telephone call at 2.45 A.M. sent by the police Constable
Sawant, P.W. 10. He went to the Hospital immediately and made enquiries but
could not ascertain the name of Sheroo. He learnt that two pathans meaning
thereby Chutkhan and Kala Topi were also in the Hospital. He contacted them and
questioned them. They were brought down and they identified Shetoo. The
statements which the Sub Inspector Patil recorded of Chutkhan is produced in
the case F.I.R. Ex. 6. After investigation, a charge-sheet was 906 filed and on
trial the present appellant was convicted for an offence under Sec. 302 and
sentenced to imprisonment for life and on appeal his conviction and sentence
has been maintained, and it is because of this that the present appeal has been
filed.
Learned
counsel appearing for the appellant made two submissions:) i) that Maruti one
of the accused persons had a contused lacerated wound on the head on the right
occipital parietal region. The defence version was that when exchange started
between She too and Maruti, it was first that Maruti was assaulted and then in
the exchange, one another accused took out a knife and gave a blow to the
deceased and thus plea of the accused was that this injury was inflicted on
Sheroo in the exercise of right of private defence. Alternatively it was
submitted by the learned counsel appearing for the appellant that both the
courts, the Sessions Court and the High Court came to the conclusion that as
soon as Sheroo and his party arrived near the handcart of Badshah, there was a
hot exchange between the two sides. The witnesses examined by the prosecution
have not clearly stated what words were uttered and it was pointed out by learned
counsel by reference to the Sessions Court's judgment that the learned Judge
felt that the language was obscene and probably the witnesses did not like to
mention whereas the High Court felt that the witnesses were not in a position
to mention the exact words but it was contended that both the courts did reach
a conclusion that there was a hot exchange between the two groups. It was
contended therefore in such a situation it could not be doubted that the party
of the accused was provoked and on such grave and sudden provocation at the
heat of the moment, this appellant who was carrying a knife took it out and
inflicted only one blow. It was contended that he did not even attempt a second
blow and the finding of both the courts is that this happened at the spur of
the moment without pre-meditation and in the heat of passion. In these
circumstances it was contended that at best the appellant could be convicted
for an offence under Sec. 304 Part II. He has served more than 7 years of
sentence already and being an incident of 1972, no useful purpose would be
served by sending this appellant to serve a short period of sentence.
As
regards the first question about right of private defence, the stand taken by
the accused persons including the present appellant has not been accepted by
the courts below. An attempt was made to suggest that it was not the present
appellant but another accused who wiped out a knife and inflicted the injury on
Sheroo and in that context it was also suggested that first injury was caused
on Meruti but both 907 the courts below rejected that story and the learned
counsel could not refer to any particular part of the evidence to indicate that
there was any material sufficient to come to the conclusion that it was Maruti
who was assaulted first.
On
the contrary the consistent evidence indicated that on arrival of Sheroo it was
Maruti who started the verbal exchange and in view of this evidence, in our
opinion, the first submission made by the learned counsel could not be
accepted.
As
regards the second contention the High Court in its judgment stated "no
doubt whatsoever that the words must have been kept back by these witnesses
because they were too vulgar and too convincing to be uttered by the witnesses
in court." It was also contended that if it were the accused persons who
uttered vulgar words which might have caused insult or annoyance or provocation
to the witnesses they would not have hesitated in saying what was said to them
by the accused persons but the witnesses chose not to say the exact words as it
was their party itself which started this vulgar verbal talk which provoked the
accused-appellant. The learned Judges of the High Court while examining this
contention observed "when they did not uttar these words, there was every
liklihood of Sheroo having uttered these words to provoke the accused. Even
assuming that Sheroo had provoked by using such words accused No. 1 had no
business to thrust a Rampuri knife inside the stomach of Shetoo in exchange of
words." Similarly learned Sessions Judge ultimately held "but
suddenly in the heat of passion, accused No. 1 may have thought of taking out
in his hand and inflicted the injury" and therefore learned Judge found
that other accused persons could not be imputed with the intention of causing
death. As regards the words uttered during the exchange the learned Judge
observed after referring to the relevant portions of evidence of
witnesses" one cannot but feel that the witnesses are deliberately not
speaking of it. Something provocative seems to have happened but they want to
keep it away from the court, on that ground that evidence. given by these
witnesses will have to be examined with suspicion and caution." It is
therefore clear that both the courts the trial court and the High Court were of
the view that the words spoken in the hot exchange between the two groups have
been suppressed by the prosecution witnesses. The learned Sessions Judge felt
that the words were such which might have caused provocation and it is only
because of this that the prosecution witnesses are trying to keep back these
words.
Learned
counsel for the appellant contended that if the provocative 908 words were used
by the accused persons, the prosecution witnesses may not have kept it back but
the only reason for the prosecution witnesses not to say what were the words
spoken, appears to be what the learned Sessions Judge felt when he observed
what has been quoted above. It appears that this contention of the learned
counsel appears to be correct. The learned Judge was right in reaching this
conclusion as it is apparent that the prosecution witnesses did not say or gave
out what words were spoken, the only inference could be that if those words
were given out, it would have damaged the prosecution case. The learned
Sessions Judge felt that "something provocative seems to have
happened." We are therefore left with no option but to look to the
incident that on the arrival of the complainants' party some hot exchange
began. Words were spoken, the witnesses have categorically stated that they
were speaking loudly and still prosecution witnesses have chosen to give excuse
for not speaking out the words by saying that they could not hear those words
and this clearly goes to show that the words used by the deceased and his
friends were such which caused provocation. Both the courts came to the
conclusion that there was no pre-meditation. It was at the spur of the moment
and in the heat of passion and it is also not disputed that only one blow was
inflicted by the present appellant and the injury ultimately caused proved tobe
fatal. Learned counsel referred to series of decisions of this Court and
contended that in such a situation when under provocation without
pre-meditation and in the heat of passion, on the spur of moment one injury is
inflicted, it could not be said that the accused had the intention of causing
death and this is what has been propounded in number of decisions of this
Court.
Learned
counsel for the State, on the other hand, contended that there was some previous
trouble between the parties and that furnish some motive and on that basis an
attempt was made to contend that this opportunity was taken to seek vengeance.
This story of some earlier trouble and the motive suggested by the prosecution
has not been accepted by both the courts below and it is also clear that there
was not a pre-arranged plan. Admittedly it was by chance that the party of
Sheroo also chose to go to the same spot i.e. hand-cart of Badshah at that odd
hour at night where the appellant and his friends had already reached. It is
not as if seeing the deceased Sheroo and his friends that the appellant and his
friends reached. On the contrary Sheroo and his friends arrived later. In this
view of the matter both the courts were fight in coming to the conclusion that
hot exchange of 909 filthy language resulted in some kind of provocation and in
the heat of passion without pre-meditation this injury was inflicted and in the
circumstances it could not be held that it was inflicted with an intention to
cause death. The only intention which could be attributed to the appellant in
the circumstances of this case could be to cause such bodily injury as is
likely to cause death. Consequently the appellant could only be convicted for
an offence under Sec. 304 Part I but as the appellant has already served out
more than 7 years, in our opinion, the sentence already undergone will meet the
ends of justice. The appeal is therefore allowed, the conviction of the
appellant is altered from one under sec. 302 to Sec. 304 Part I and sentenced
to sentence already undergone. If the appellant is in custody, he shall be set
at liberty forthwith.
A.P.J.
Appeal allowed.
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