SUNIL KHERGADE Vs STATE OF MAHARASHTRA
Bench: KURIAN JOSEPH,ADARSH KUMAR GOEL
Case number: Crl.A. No.-000812-000812 / 2008
Diary number: 15921 / 2005
Advocates: S. RAJAPPA Vs
NISHANT RAMAKANTRAO KATNESHWARKAR
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 812 OF 2008
Sunil Khergade … Appellant (s)
Versus
State of Maharashtra … Respondent (s)
J U D G M E N T
KURIAN, J.:
1. The appellant along with his younger brother was
convicted under Section 302 read with Section 34 of the Indian
Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’) and
sentenced to undergo life imprisonment by the Court of 2nd
Additional Sessions Judge, Nagpur. They were also sentenced to
pay a fine of Rs.300/- each, a default sentence of two months. .
2. In appeal before the High Court of Judicature Bombay,
Nagpur Bench, the High Court declined to interfere with the
conviction and sentence, and hence, the present appeal.
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3. The appellant’s younger brother-Sanjay had also filed a
Special Leave Petition before this Court as Special Leave
Petition (Criminal) No. 7667 of 2007. Since he had not
surrendered, as required under the Rules, the Special Leave
Petition filed by him was dismissed by Order dated 02.05.2008.
4. The incident took place on 12.02.1999 between 07.00
A.M. and 08.00 A.M. The deceased had returned to the village
only in the morning of that day, around the time of the incident.
There was a quarrel between the families who were sharing
common open space. The genesis of the quarrel was with
regard to the conduct of wife of the deceased who allegedly
threw night soil in the open space. They had picked up such
quarrel earlier also. It has come in evidence that the co-accused
was armed with crowbar and he had held the hands of the
deceased and made him lie on the ground, at which time the
appellant fetched a knife and inflicted the fatal injury on the left
side of the chest. The following are the injuries:
“1. Stab wound in left mammary area medial to nipple 2 cm x 1cm x 5” directed upward forward and medially.
2. Abrasion on chest wall left side above the stab wound 4 x ¼ cm.
3. Incised wound on back left sides 5 cm x ½ cm and akin deep tapering laterally.”
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5. The trial court mainly relied on the evidence of
PW-1-father of the deceased, PW-2-wife of the deceased and
PW-7-mother of the deceased. There was no evidence for the
defense. In the Statement under Section 313 of The Code of
Criminal Procedure, 1973, the appellant explained the injury as
having been caused when the deceased fell on the bamboo
fences amidst the scuffle. However, it was contended before the
trial court that appellant inflicted the injury on the deceased in
exercise of his private defence and the protection under Section
97 of IPC was canvassed. That contention was turned down in
view of the overwhelming evidence that the deceased was
wholly unarmed and the other members of the family were also
unarmed. It was then contended that the act of stabbing was on
account of grave and sudden provocation and that the act was
done without any intention to cause death or to cause such
bodily injury as is likely to cause death and hence canvassed for
the benefit of Section 304 Part II of IPC.
6. The trial court, however, having regard to the evidence
of PWs-1, 2 and 7, who were also injured witnesses, and taking
note of the nature and manner of the commission of the crime,
convicted the appellant and his brother under Section 302 read
with Section 34 of IPC. However, on evidence, taking note of the
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young age of the accused and on reaching the conclusion that it
is not a case of rarest of the rare cases, the appellant was
sentenced to suffer imprisonment for life. The trial court found
that accused no.1-Sanjay (younger brother of the appellant) had
caught hold of the deceased, made him lie on the ground and
the appellant brought knife from the house and inflicted a stab
injury on the chest of the deceased.
7. In appeal, having analysed the evidence at length, the
High Court was not inclined to take a different view.
8. Learned Counsel for the appellant mainly stressed for
the conviction to be altered to Section 304 Part II of IPC. Even
otherwise, private defence under Section 97 of IPC and the
benefit under exception to Section 300 of IPC will not go
together.
9. It is submitted that there was only one injury that is
mentioned in the First Information Report, and with that, it
cannot be held that the appellant committed murder. The First
Information Report need not necessarily contain each and every
particular injury sustained by the deceased. It needs to contain
only some information about the crime and some information
about the manner in which the offence has been committed. It
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is not required to contain the minute details of the whole crime.
(See Patai alias Krishna Kumar v. State of Uttar
Pradesh1). In the instant case, the First Information Report was
prepared on the basis of the statement given by PW-1-father of
the deceased. To him, it is not the number of injuries sustained
what mattered but the death resulting from the stab injury. It
has also come in evidence that the deceased had been inflicted
with three injuries by the appellant and the fatal injury is the
one which pierced the heart of the deceased.
10. Learned Counsel for the appellant, placing reliance on
Salim Sahab v. State of M.P.2, prayed for alteration of the
conviction from Section 302 of IPC to Section 304 Part II of IPC.
Reference is also invited to Mohd. Ismail alias Haji Abdul
Kadar Sheikh v. State of Gujarat3. Salim Sahab (supra) is a
case where the Court, having discussed the factual scenario,
came to the conclusion that “… during a quarrel between the
deceased and the accused, they were grappling and during that
quarrel, the accused attacked the deceased with a pair of
scissors. It was not a very big-sized weapon though it was
certainly having a sharp-edged point”. In that view of the
matter, the conviction was altered to Section 304 Part-II of IPC. 1 (2010) 4 SCC 429 2 (2007) 1 SCC 699 3 (2007) 3 SCC 118
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Mohd. Shakeel v. State of A.P.4 is also one where the
conviction is altered from Section 302 of IPC to Section 304 Part
II of IPC. It is a case of only one injury and the accused also
suffering injury during the scuffle. The situation in the case of
the appellant is totally different. It has been established in
evidence that the deceased and the other members of the
family were wholly unarmed, the deceased had come to his
village only in the morning of the fatal day, the appellant and
his younger brother, who is the co-accused, both were in
possession of arms, the appellant had fetched the knife
(Article-15) which had a wooden handle and 17 centimeter long
blade portion with which the fatal injury was caused on the left
side of the chest of the deceased. It is a situation where the
appellant has taken undue advantage of the situation as held
by this Court in Babulal Bhagwan Khandare and another v.
State of Maharashtra5. Therefore, it is not a case where the
appellant is entitled to alteration of sentence from Section 302
of IPC to Section 304 Part II of IPC.
4 (2007) 3 SCC 119 5 (2005) 10 SCC 404
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11. There is no merit in the appeal, hence, it is dismissed.
………..………………………..J. (KURIAN JOSEPH)
…………………..……………J. (ADARSH KUMAR GOEL)
New Delhi; August 13, 2015.
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