PRABHAKAR VITHAL GHOLVE Vs. STATE OF MAHARASHTRA

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 448 of 2016, Judgment Date: May 06, 2016

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 448  OF 2016
               [Arising out of S.L.P.(Crl.) No. 3869 of 2016]
                          [Crl.M.P.No.5873 of 2016]

Prabhakar Vithal Gholve                                         …..Appellant

                                    Versus

State of Maharashtra                                           …..Respondent



                               J U D G M E N T


SHIVA KIRTI SINGH, J.

By the impugned judgment and order under appeal dated  06.01.2014  the  High
Court of Judicature at  Bombay  dismissed  Criminal  Appeal  No.87  of  2005
preferred by the appellant and  confirmed  his  conviction  for  an  offence
under Section 302 of the IPC as well as sentence of  life  imprisonment  and
fine of Rs.1000/- with a default clause as imposed  by  the  Addl.  Sessions
Judge, Solapur by judgment dated  31.12.2004  in  Sessions  Case  No.132  of
2004.
The main issue raised by  learned  counsel  for  the  appellant  is  whether
conviction of the appellant under Section 302 IPC is  justified  and  lawful
when the prosecution, as per submissions, has failed  to  allege  and  prove
any motive for the assault upon the deceased at the hands of  the  appellant
and another accused Balu, a juvenile.  It is also contended that the  courts
below failed to appreciate the implications of  evidence  of  PW-6,  Bapulal
Shaikhlal Golve who is the brother of the deceased and an eye  witness.   It
was also pointed out that the courts below including the High Court did  not
appreciate that as per the evidence of the doctor, PW-5  who  had  conducted
the post mortem examination on the dead body of the deceased, the  appellant
had also sustained two injuries including one contused lacerated wound  over
left side of forehead above the left eye 2.0 cms x 0.5  cms  vertical.   The
other injury was an abrasion over back central region 0.5 cms  x   0.5  cms.
Both the injuries were by hard and blunt object.
On the basis of aforesaid materials, according to learned  counsel  for  the
appellant the conviction could at best be valid under  Section  304  Part  I
and not under Section 302 of the IPC.
On hearing the counsels for both the parties and going through the  relevant
materials we find that practically  there  is  no  reason  for  the  assault
except an assertion that the appellant was unhappy with a female  inmate  of
the house of prosecution party on a minor issue that she had  received  some
message on telephone but did not convey the same  to  the  appellant.   This
has been disclosed by PW-4 who claims to be an eye  witness.   No  case  has
been made out by the prosecution that there was any motive  for  doing  away
with the life of the deceased.  As per manner of  assault,  accused  persons
assaulted the deceased as well as PW-4 and one Ishwar.   Subsequently,  PW-4
has alleged that the deceased was assaulted on  head  by  the  appellant  as
well as the juvenile offender  Balu.   According  to  medical  evidence  the
deceased had received injuries on head  resulting  into  fracture  of  skull
near the parietal left eminence.
As noted earlier, PW-6 who is brother of the deceased has  also  claimed  to
be an eye witness.  He has deposed that appellant was abusing his  aunt  for
not communicating a telephonic message but PW-6 managed to pacify  and  send
the appellant back to his house.   Thereafter  the  juvenile  offender  Balu
came to their house and allegedly assaulted PW-4 and the  deceased  on  head
by stick.  On hearing shouts, PW-6 rushed to the  place  of  occurrence  and
caught accused Balu.  When he pushed Balu with a view to  take  him  towards
Balu’s house, Balu shouted in loud voice and entreated to be  released.   On
hearing his shouts the appellant as well as four others  came  to  the  spot
with sticks.  Allegedly the appellant assaulted the  deceased  by  stick  on
head followed by Balu who also assaulted the  deceased  by  stick  on  head.
The deceased fell down and died immediately.
Taking an overall broad view of the facts noticed above,  it  is  abundantly
clear that the occurrence originated on  account  of  some  minor  grievance
against a lady  that  she  did  not  convey  a  telephonic  message  to  the
appellant.  The appellant thereafter came back to his  house.   For  reasons
which are not very clear, the juvenile offender Balu went to  the  house  of
the prosecution party and allegedly  committed  assault  for  which  he  was
overpowered.  On his cries,  the  appellant  and  four  others  rushed  with
sticks.  The appellant, as per medical evidence, sustained two  injuries  by
hard and blunt substance and some persons  of  the  prosecution  party  also
received injuries on  account  of  assault  by  the  accused  persons.   The
appellant as well as juvenile offender Balu used stick to cause injuries  on
the head of the deceased who died due to such assault.  It  is  evident,  as
noticed earlier, that there was  no  motive,  alleged  or  proved,  for  the
occurrence of assault upon the deceased.  In the given facts  and  scenario,
it can be safely inferred that there was no intention on  the  part  of  the
accused persons to cause death.  However, the injuries  on  head  did  prove
fatal and knowledge of such effect of the injuries can be  fastened  against
the appellant.
In the facts and circumstances noted  above,  there  appears  merit  in  the
submission advanced by learned counsel for the appellant  that  in  view  of
Exception 1 or Exception 4 in Section 300 of  the  IPC  the  case  made  out
against the appellant is that of culpable homicide not amounting to  murder.
 It would be natural for the family members of  juvenile  offender  Balu  on
hearing his cries, to rush for his help and when  injury  on  the  appellant
has also been proved there is sufficient material to  infer  the  reasonable
possibility of a grave and sudden provocation. The assault on the  deceased,
in absence of intention to cause death could be on account of  sudden  fight
without pre-meditation, in the heat of passion and upon  a  sudden  quarrel.
We therefore feel persuaded to and  do  set  aside  the  conviction  of  the
appellant under Section 302 IPC and  substitute  the  same  with  conviction
under Section 304 Part I  of  the  IPC.   The  certificate  of  imprisonment
available on record discloses that the appellant has by now  undergone  more
than 12  years  of  actual  imprisonment.   The  aforesaid  period,  in  our
estimate is sufficient to meet the ends of justice.  Hence the  sentence  of
imprisonment for life is reduced to  imprisonment  for  the  period  already
undergone by the appellant.  In view of such modification in  the  sentence,
the appellant is directed to be  released  from  custody  forthwith  if  not
required to be kept in custody in connection with any other  criminal  case.
The appeal stands allowed to the aforesaid extent.

                                                          .…………………………………….J.
                                                              [DIPAK MISRA]


                                                          ……………………………………..J.
                                                        [SHIVA KIRTI SINGH]
New Delhi.
May 06, 2016.
-----------------------
5