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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.

1. 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.

2. 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  

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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.

3. 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.

4. 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.  

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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.

5. 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.

6. 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  

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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.  

7. 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  

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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.

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