MURLIDHAR SHIVRAM PATEKAR Vs STATE OF MAHARASHTRA
Bench: DIPAK MISRA,V. GOPALA GOWDA
Case number: Crl.A. No.-000111-000111 / 2008
Diary number: 1504 / 2006
Advocates: BHASKAR Y. KULKARNI Vs
ASHA GOPALAN NAIR
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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 111 of 2008
MURLIDHAR SHIVRAM PATEKAR & ANR. ……APPELLANTS
VS.
STATE OF MAHARASHTRA ……RESPONDENT
J U D G M E N T
V. GOPALA GOWDA, J.
This appeal is filed by the appellants against
the judgment and order dated 20.01.2004 passed in
Criminal Appeal No. 255 of 1999 by the High Court
of Judicature at Bombay, Bench at Aurangabad,
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whereby the High Court upheld the Trial Court’s
decision of convicting the appellants under Section
302 of the Indian Penal Code (in short IPC) on the
charge of murder of one Asaram and sentencing them
to life imprisonment along with a fine of
Rs.1,000/- and in default of payment of fine, to
undergo further simple imprisonment for one year.
The present appeal is filed by the appellants
praying to set aside the impugned judgment and
order of the High Court, urging various grounds.
2. The necessary relevant facts are briefly stated
hereunder:
The accused-appellant Nos. 1 and 2 are husband
and wife respectively, who are the residents of
Village Motigavan in Jalgaon District in
Maharashtra. They have been charged with the murder
of one Asaram, as a result of a scuffle that took
place between the accused and the deceased. An FIR
was originally lodged by Madhav Gore, the
complainant, who had witnessed the incident.
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Initially, the crime was registered under Section
307 read with Section 34 of IPC. However, after the
death of Asaram, the crime was registered under
Section 302 read with Section 34 of IPC. The Trial
Court found both the accused guilty of the offence
of murder and sentenced them to suffer life
imprisonment.
3. Aggrieved by the judgment and order of the Trial
Court, the appellants filed an appeal before the
High Court of Bombay, pleading provocation on the
part of the deceased and lack of evidence and
prayed for reversal of the conviction and sentence.
The High Court dismissed the appeal and upheld the
verdict of the Trial Court. Hence, the present
appeal.
4. It has been contended by the learned counsel on
behalf of the appellants that on 27.08.1993 at
about 6.00 p.m. when it was raining, Asaram entered
the house of the appellants and raped appellant
No.2, in the absence of her husband-appellant No. 1
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and children. On 28.08.1993, when the
accused/appellants were proceeding to report the
incident at the police station, Asaram allegedly
tried to prevent them from doing the same and as a
result a scuffle broke between the accused No.1 and
the deceased-Asaram. In the scuffle, the wife,
accused/appellant No. 2 noticed that Asaram had
over-powered her husband-appellant No.1, she
therefore caught hold of the genitals of Asaram and
tried to rescue appellant No.1. Thereafter, Asaram
took out a knife from his pocket and made an
attempt to stab appellant No.1. It is further
contended by the learned counsel, that the
deceased-Asaram during the course of the scuffle,
fell on the knife, thus causing injuries to
himself. The accused No.1 removed the knife and
proceeded towards the police station where he
produced the kife before the P.S.I. Andhale (P.W.8)
and also lodged an F.I.R against the deceased-
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Asaram for committing rape on his wife-appellant
No. 2 under Section 376 of the IPC.
5. In justification of failure to lodge a complaint
on the very same day, it is contended by the
learned counsel on behalf of the accused-appellants
that it was raining heavily on the date of
occurrence of the crime; therefore, they could not
approach any villagers or the police station.
6. On the other hand, it has been contended by the
prosecution that the accused-appellant No.2,
noticing that the deceased Asaram had over powered
the accused-appellant No.1, caught hold of his
genitals and facilitated accused-appellant No. 1 to
give blows with knife. The incidence was witnessed
originally by the complainant, Madhav Gore who died
during the pendency of the trial as well as Kishan
Mohite (PW-2), Pandurang (PW-3) and Prahlad Mohite
(PW-4). The deceased was taken to the hospital at
Jalna in a tractor. A seizure Panchanama was made.
The Head-Constable Babula Labhange (PW-7), while
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proceeding towards the said village met the injured
and recorded his dying declaration at about 10.45
a.m. on the same day. The doctor at Jalna hospital
directed that the deceased be taken to the
Government Medical College Hospital at Aurangabad
as he was in serious condition. The deceased was
therefore, brought by the police to the Ghati
Hospital at Aurangabad, where, the doctor on
examination of the injured, declared him dead.
It is further contended by the prosecution that
Madhav, the complainant filed his complaint which
came to be registered as F.I.R for an offence
punishable under Section 307 read with Section 34
of IPC, which after the death of the deceased
Asaram was converted to Section 302 read with
Section 34 of the IPC. The blood stained clothes of
the deceased were sent for chemical analysis along
with the weapon (knife) and the blood samples of
the accused and the deceased. The body was sent for
post mortem to Dr. Anil Digambarrao Jinturkar (PW-
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5) on 28.08.1993. The accused came to be arrested
on the very same day and charge-sheet was filed on
completion of the investigation.
7. The Judicial Magistrate, 1ST Class committed the
case to the Sessions Court at Jalna on 19.02.1994.
Charges were framed against both the accused under
Section 302 read with Section 34 of the IPC, which
the accused consequently denied and claimed to be
tried. In addition to 3 eye witnesses, panch
witness-Fakir Mohite PW-1, was examined to prove
spot punchnama.
8. Dr. Anil Jinturkar (PW-5), in his disposition
has stated before the Trial Court that the injuries
had been caused within 6 to 12 hours before the
post mortem and in his cross examination, he
specifically denied the suggestion that injuries 1
and 2 were possible my means of fall over the knife
or during the scuffle. It was contended that this
evidence clearly supports the findings recorded by
the Trial Court that Asaram died homicidal death on
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account of the injuries sustained by him by means
of a sharp weapon like a knife. The cause of death
as described by the doctor was hemorrhagic shock
due to stab injury over the chest and abdomen
involving liver and lung.
It is further contended by the prosecution that
during the cross examination of PW-3, he has stated
that there was no rain during the night of the
incident (alleged rape). He also denied that Asaram
had taken out the knife and assaulted the accused
no.1. The evidence of PW-4 and PW-5 further
supported the description of the incident as
narrated by PW-3.
9. Further, as contended by the prosecution that
the High Court has rightly held that the defence
plea raised by the accused no.1 has been falsified
by the ocular evidence of PW-2, PW-3 and PW-4. The
evidence of the three eyewitnesses is not impaired
in any manner and the accused no.2 had contradicted
her statement made in the complaint. The accused-
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appellant No. 2 by holding the genitals of the
deceased had virtually disarmed him, giving
accused-appellant No. 1 the opportunity to catch
hold of his collar and inflict him with blows with
the knife. Hence, it was a premeditated act to
attack the deceased. The High Court has further
held that the requirements in the Exception 4 of
Section 300 IPC are not attracted in the present
case as held by this Court in the case of Surinder
Kumar v. Union Territory of Chandigarh1. The High Court further held that the common intention of the
accused was shared and developed by them right in
their house. The possession of the deadly weapon by
accused no. 1 and the injuries inflicted on the
deceased that were caused on his vital parts were
attributed to accused no.1.
10. On the basis of the aforesaid rival legal
contentions, evidence of the prosecution witnesses
on record and the reasoning taken by the courts 1
(1989) 2 SCC 217
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below, the following points would arise for
consideration of this Court:
1. Whether the death of Asaram was homicidal in the light of the evidence produced by Prosecution Witnesses?
2. Whether the appellants in furtherance of their common intention, to take revenge of the alleged rape on accused No. 2, murdered Asaram and whether the accused are entitled to the benefit under Exception 4 of Section 300, IPC?
3. What order?
Answer to Point No.1:
11. The prosecution has relied on the evidence of
PW-5, Dr. Jinturkar, who examined and conducted the
post-mortem of Asaram’s body. In his deposition
before the Trial Court, PW-5 stated as under:
“External Injuries: 1. An elliptical obliquely placed stab wound
over the chest and right side, anteriorly in the 8th intercostals space, at midclavicular line, it was 2” x 0.75” x lung deep, it was directed medially and upwards, torn tags of
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under lying pleura were found to be protruding out of the wound, there was oozing of dark reddish colour blood through the wound, margins clean cut, inverted, surrounding skin shows blood stains.
2. An elliptical obliquely placed stab wound over the chest and right hypochohorium of the abdomen just about ½” below and lateral to the injury No.1 and in the 9th intercostal space, it was 2” x 0.75” x liver deep, directed medially downwards in slightly oblique manner, underlying tissue and dark reddish blood oozing out of the wound substance. Margins clean cut inverted, bevelling noticed at life margin of wound, dried blood stains seen over the skin in vicinity.
3. I.V. injections sites seen at cubital fosse.
INTERNAL INJURIES 4. On internal examination I found congestion of
meanings, brain was pale. 5. The thorasix wall on the right side showed
corresponding elliptical stab wound at all layers beneath injury no. 1 and no. 2 of col. No.17. Pleura shows clean cut elliptical stab below injury no. 1 and 2 as described in col. No.17, with collection of 310 ml. of reddish fluid blood in the right plural cavity, trachea contains reddish blood.
6. Right lung shows collapsed appearance and an oblique stab wound of 2” x 0.75” in size at its lower lobe, dark adherent blood clots seen at this site, involved tissue was friable.
7. Left lung was pale in appearance, pericardium showed petechial hemorrhage.
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8. The Heart was contracted and right side contained scanty blood and left side was empty.
9. He further stated that the walls showed corresponding stab injury at all layers beneath injury No.2 of col. No.17. Peritoneum was cut obliquely at right hypondrium, measuring 2” x 0.75” in dimension, Peritoneal cavity contained about 450 ml of dark reddish blood and plenty of blood clots. Liver showed clean cut through stab injury of size 2” x 0.75” at its super lateral aspect of right lobe of liver. The right lung was also damaged. He further stated that these injuries were possible by means of a knife and they were sufficient in ordinary course of nature to cause death.
10. He has further stated that these injuries would have been caused within 6 to 12 hours before the post mortem. According to him the cause of death was heamorrhagic shock due to stab injuries on chest and abdomen involving liver and right lung and accordingly he issued post-mortem notes at Exh.32. he also issued provisional death certificate at Exh.33.
11. Further, PW-5 has categorically denied the suggestions that injuries 1 and 2 were possible by means of fall over the knife or in scuffle or self inflicted.”
In Black’s Law Dictionary, Abridged 6th
Edition, 1991 at page 819, it is stated that:
“Preponderance of evidence is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it;
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i.e. evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Thus, it is stated that the medical evidence acts
as a check upon the testimony of eye witnesses and
also as independent evidence in so far as it
establishes facts, example, nature and grievousness
of the injuries suffered by the deceased.
Therefore, the above mentioned findings of PW-5
clearly supports the findings recorded by the Trial
Court that the death of Asaram was homicidal on
account of the injuries sustained by him by means
of a sharp weapon like knife on 28.08.1993.
Answer to Point Nos.2 & 3 :
12. Now we have to examine whether the appellant in
furtherance of their common intention, to take
revenge of the alleged rape on accused No. 2,
murdered Asaram. For this purpose the prosecution
has relied on the following evidence:
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1. Direct evidence of PW-2 Kisan, PW-3 Pandurang and PW-4 prahlad.
2. Dying declaration of the deceased Asaram at Exb.40
3. Evidence of Accused No.2 and circumstantial evidence on record.
Black’s Law Dictionary, Abridged 6th Edition,
1991 at page 819 further states that:
“A person, who deposes before the Court a fact which he states he saw, must either speak truly or must have invented the story. Test of Proof is the test of probabilities upon which a prudent man may base his opinion.”
Adverting to the ocular evidence of PW-2, who along
with complainant Madhavrao was sitting in front of
their drawing room, heard the shout of deceased
Asaram and rushed to the said place of incidence
and found that the accused no.2 had caught hold of
the genitals of the deceased while accused no. 1
had caught hold of the collar of the deceased. PW-2
further disclosed that the accused no.1 had a knife
in his hand and he inflicted 2 knife blows into the
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chest and stomach of Asaram, who fell on the ground
and the accused no. 1 and 2, went away.
The testimony of PW-2 is fully corroborated
with the testimonies of PW-3, which was further
corroborated by the testimony of PW-4, who had also
stated the same version as deposed by PW-2 and PW-
3.
13. Thus, the evidence on record led by the
prosecution eyewitnesses is sufficient to show that
the accused nos. 1 and 2 are the persons, who
caused injuries on the vital parts of the body of
the deceased.
14. After hearing the learned counsel for both the
parties and carefully examining the ocular evidence
on record, we would like to bring certain relevant
facts into light that were deposed by the above
mentioned witnesses in their testimony and cross
examination, which the High Court and the Trial
Court have failed to notice the same.
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The fact that all the above witnesses saw the
incidence of scuffle is not disputed; however they
entered the scene only after they heard the shout
of Asaram. What transpired prior to that, between
the accused and the deceased has not been
corroborated by anyone save the accused no. 2. None
of the witnesses seem to know the cause of the
scuffle and neither were they able to hear the
altercation that was going on between them.
Further, all the witnesses saw accused no.1
inflicting injury to deceased-Asaram by way of a
knife that was later produced as the murder weapon.
However, none of the witnesses have stated anywhere
that the knife belonged to the accused no. 1,
therefore, the question that who had actually
possessed the knife first is still unknown.
15. Further, the evidence of PW-4 cannot be
completely relied upon. This is because of the fact
that in his cross examination he has clearly stated
that the incident was already over by the time he
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reached the said place where the scuffle had taken
place. The facts and circumstances must be
reasonable and proximate and not conjectural and
remote and the prosecution has failed to satisfy
this Court beyond any reasonable doubt the reason
and intent of the accused that resulted in the
death of Asaram.
16. Now, we move on to the aspect of dying
declaration. The evidence of the deceased at Exb.39
which was reduced to writing by PW-8 at Exb.40, who
has recorded the statement of Asaram at 10.45 a.m.,
stated that on enquiring about the assault, Asaram
had stated that the accused assaulted him under the
pretext that he had entered their house. Asaram had
further stated that the accused assaulted him in
the morning at about 8 a.m. There is no infirmity
in recording the statement of the said dying
declaration as it was recorded on the way when the
injured was being taken to the police station and
from there to the hospital.
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17. Now we come to the evidence of accused no. 2,
the wife, which was outrightly disregarded by the
High Court as well as the Trial Court. In her
deposition, she has clearly stated that the
deceased Asaram had entered her house and had
pressed her neck and put a knife over her chest
rendering her defenceless and making it impossible
for her to raise her voice and thereby he committed
rape. She further stated that the incident took
place when her husband and children were not at
home. She has also stated that when her husband
reached home after a while she disclosed the
incident of rape to him. However, they could not
approach the police station or the Sarpanch on the
very same night as it was raining but proceeded
towards the police station the next morning at 8.00
a.m. She further stated that Asaram, who was
sitting with the other prosecution witnesses,
rushed towards them and prevented them from
proceeding further. Thereby, the deceased started
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assaulting the accused. She has further stated that
the deceased had over powered her husband and none
of the prosecution witnesses came to their rescue.
Then she caught hold of the testicles of Asaram and
her husband snatched the knife from the hand of the
deceased who had pierced himself in the stomach
during the scuffle with the knife. Her husband
thereby proceeded towards the police station and
narrated the incidence of the scuffle and lodged a
complaint of rape against the deceased.
18. Further, on the question of not raising the
voice by the accused no. 2, in our opinion, it is
understandable under this situation that the
accused no.2 could have been in a state of shock
and scared and hence would not have been in a
position to reveal the incident of the rape to
anyone. Thus, the contention made by the
prosecution that the delay in lodging the complaint
or revealing the same to the Sarpanch was
premeditated on the part of the accused cannot be
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accepted by us on the fact and circumstances of the
case. Even for the sake of argument, if we consider
that the delay in lodging the complaint was a
premeditated plan on the part of the accused, then
the accused would not have delayed confronting the
deceased until 8.00 a.m. the next morning.
Premeditation calls for construction of a plan to
execute a certain act. If the accused had planned
on confronting and eventually committing the act of
murder against the deceased, then they would not
have executed the same in their own neighbourhood,
in the presence of a number of witnesses. Hence, we
are of the opinion that there was no premeditation
on the part of the accused and the scuffle took
place due to sudden provocation on the part of the
deceased. This is further corroborated by the fact
that the accused themselves reached the police
station and lodged a complaint against the deceased
and confessed to the scuffle, thereby submitting
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the knife (the murder weapon) at the police
station.
19. The question however still remains as to the
nature of the offence committed by the accused and
whether it falls under Exception 4 of Section 300,
IPC.
In the case of Surinder Kumar (supra), this Court has held as under:-
“7. To invoke this Exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv)The assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled
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to the benefit of this Exception provided he has not acted cruelly.”
(emphasis supplied)
Further in the case of Arumugam v. State,2 in
support of the proposition of law that under what
circumstances Exception 4 to Section 300, IPC can
be invoked if death is caused, it has been
explained as under:-
“18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must
2
(2008) 15 SCC 590, at page 595
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necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’.”
Further in the case of Satish Narayan Sawant
v. State of Goa,3 this Court has held as under:
“ 24. …….Section 300 IPC further provides for the Exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II. 28. ………Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual
3
( 2009) 17) SCC 724
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position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.”
Thus, if there is intent and knowledge then the
same would be a case of Section 304 Part I and if
it is only a case of knowledge and not intention to
cause murder and bodily injury then the same would
fall under Section 304 Part II. We are inclined to
the view that in the facts and circumstances of the
present case, it cannot be said that the
appellants/accused had any intention of causing the
death of the deceased when they committed the act
in question. The incident took place out of grave
and sudden provocation and hence the accused are
entitled to the benefit of Section 300 Exception 4
of IPC.
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Thus, in entirety, considering the factual
scenario of the case on hand, the legal evidence on
record and in the background of legal principles
laid down by this Court in the cases referred to
supra, the inevitable conclusion is that the act of
the accused-appellants was not a cruel act and the
accused did not take undue advantage of the
deceased. The scuffle took place in the heat of
passion and all the requirements under Section 300
Exception 4, IPC have been satisfied. Therefore,
the benefit of Exception 4 under Section 300, IPC
is attracted to the fact situations and both the
appellants are equally entitled to this benefit.
20. Thus, considering the factual background and
the legal position set out above, the inevitable
conclusion is that the appropriate conviction of
the appellants would be under Section 304 Part II
IPC instead of Section 302 IPC. Hence, the sentence
of imprisonment for 10 years would meet the ends of
justice.
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21. The appeal is disposed of in the above said
terms.
……………………………………………………………………J.
[DIPAK MISRA] ……………………………………………………………………J.
[V.GOPALA GOWDA] New Delhi, September 25, 2014