REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  14        of 2011 (Arising out of SLP(Crl.) No. 1981 of 2010)

Mangesh        …Appellant

        Versus

State of Maharashtra                 …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. This appeal has been preferred against the judgment and order  

dated 25.8.2009 passed in Criminal Appeal No.242/04 by the High  

Court  of  Judicature  at  Bombay,  Nagpur  Bench,  affirming  the  

judgment and order dated 16.3.2004 passed by 2nd Additional Sessions  

Judge, Nagpur, in Sessions Trial No.366/03 convicting the appellant  

under  Section  302  of  Indian  Penal  Code,  1860  (hereinafter  called  

IPC) and awarding the sentence of life imprisonment and, in addition  

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thereto a fine of Rs.1000/- had also been imposed and in default of  

payment to undergo further rigorous imprisonment for the period of  

one year.

3. Facts and circumstances giving rise to this appeal are that the  

appellant’s sister Sandhya had a love affair with Prashant (deceased)  

which continued for 2-3 years.  The appellant was fully aware of the  

said affair and expressed his displeasure, having had altercations with  

Prashant (deceased) several times.  On 30.4.2003, the appellant saw  

Prashant (deceased) and his sister Sandhya chatting with each other at  

about  9.15 p.m.  at  a  short  distance  from his  house.   He assaulted  

Prashant (deceased) with the knife thrice and ran away from the spot.   

4. The appellant’s  sister  Sandhya (PW.6)  called the police  jeep  

passing  through  the  road.   The  police  shifted  Prashant,  injured,  to  

hospital and while going to the hospital Prashant made a statement to  

PSI  Bhaurao Meshram (PW.7) which was treated to be an FIR under  

Section  307  IPC.   As  subsequently,  Prashant  died,  the  FIR  was  

converted to one under Section 302 IPC. Prashant made two dying  

declarations (Exh. 20 and 26), one to PSI Bhaurao Meshram (PW.7)  

on 30.4.2003 and another to Mr. Prakash, Special Judicial Magistrate  

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(PW.3) on 1.5.2003 to the effect that the appellant had caused knife  

injuries to him.

5. After  conclusion  of  the  investigation,  charge sheet  was  filed  

against the appellant under Section 302 IPC.  In support of the case,  

the  prosecution  examined  several  witnesses,  however,  the  eye-

witnesses including Sandhya (PW.6) did not support the case of the  

prosecution  and  they  were  declared  hostile.   The  trial  Court  after  

considering  the  evidence  on  record  and  the  arguments  made  by  

learned counsel for prosecution as well as the defence, convicted the  

appellant  under  Section  302  IPC  vide  judgment  and  order  dated  

16.3.2004 awarding the life imprisonment and a fine of Rs.1000/- and  

in default of payment to undergo further rigorous imprisonment for  

the period of one year.

6. Being  aggrieved,  the  appellant  preferred  Criminal  Appeal  

No.242/04 which has been dismissed vide impugned judgment and  

order dated 25.8.2009.  Hence, this appeal.

7. Shri  Gaurav  Agrawal,  learned  counsel  appearing  for  the  

appellant  has  made  large  number  of  submissions  regarding  the  

veracity of the evidence on record; pointed out contradictions in two  

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dying declarations; prosecution case was not supported by any of the  

eye-witnesses including Sandhya (PW.6) who had called the police  

jeep which had taken Prashant  (deceased) to the hospital;  and  the  

panchnama witnesses of the recovery of knife also did not support the  

case of the prosecution.  However, realising the fact that there have  

been concurrent  findings  of  fact  by the two courts  below, wherein  

after considering the contentions of the defence in detail  the courts  

have recorded the finding that there was no material contradiction in  

both the dying declarations and the conviction could be based solely  

on the said dying declarations, he restricted his case only to the nature  

of offence.  It has been submitted by Mr. Agrawal that as the act of  

the appellant had not been pre-meditated and it all happened because  

of sudden provocation, conviction could be only under Section 304,  

Part I IPC and not under Section 302 IPC.

8. Mr. Shabkar Chillarge, learned counsel appearing for the State  

has submitted that considering the gravity of injuries, no interference  

is required with the impugned judgment by this Court.  The appellant  

has rightly been convicted under Section 302 IPC.  The appeal lacks  

merit and is liable to be dismissed.

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9. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.

10. The admitted facts, in the case, have been  that the love affair of  

Sandhya, sister of the appellant, continued with Prashant (deceased)  

for  2-3 years.  The appellant did not like the relationship and had  

altercations with Prashant (deceased) several times.  On seeing both of  

them together at an odd hour i.e. 9.15 P.M. on 30th April, 2003, he  

suddenly assaulted Prashant with knife and caused stab injuries.  Later  

on, Prashant (deceased) succumbed to the said injuries and died on 2nd  

May, 2003.  The following injuries were found on his body as per the  

postmortem report:

i) Stitched  wound  over  left  side  of  chest  9th intercostal  

space in posterior auxiliary line of size 1 cm x 0.5 cm  

angles and margins clear cut cavity deep.

ii) Continued abrasion left shoulder, anterior aspect 3 cm x  

0.5 cm, reddish.

iii) Grazed abrasion over left arm, anterior aspect 4 cm x 3  

cm, reddish brown.

iv) Contused abrasion over dorsum of left hand, 3 cm x 2  

cm, reddish brown.

v) Stab wound in the mid of right thigh medial aspect 1.5  

cm x 0.5 cm x muscle deep, angles and margins clean.

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vi) Stab wound over right thigh, lateral aspect in its middle  

4.5 cm x 1.5 cm, muscle deep, angles and margins clear  

cut.  

Doctor Amit  Kumar (PW.1) found the following internal  

injuries :

i) Internal injuries to thorax cut injury to the parietal pleura  

corresponding to the injury no. 1.

ii) Internal  injury  to  diaphragm  cut  injury  through  and  

through corresponding to injury no. 1.

iii) Peritoneum  cut  injury to peritoneum corresponding to  

injury no. 1.

iv) Cut injury to left gastric artery, cut injury to outer layer of  

stomach cut injury to peritoneum corresponding to injury  

no. 1.

Cause of death was opined to be hemorrhagic shock due  

to stab injury.  

In the opinion of the doctor, injury no.1 was of grave nature and  

proved to be fatal.  Injury nos.2, 3, and 4 were simple injuries.  Injury  

nos. 5 and 6 did not cause any internal damage.   

11. In  both dying  declarations  made by Prashant  (deceased),  the  

contradiction had been regarding place of injuries and nothing else  

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which has been held by both the courts below to be immaterial. What  

is  material  in  both  the  dying  declarations  that  on  seeing  Prashant,  

deceased  and  Sandhya  together,  appellant  got  annoyed  and  

immediately took out the knife which he had with him and gave three  

blows on the body of deceased.

12. It is evident from the medical report that the appellant has not  

given the  knife  blow with  full  force.   Otherwise,  the  depth  of  the  

injury No.1 would have been more than just “cavity deep”.  The fact  

that the appellant stabbed the deceased twice in the thigh and only  

once in the chest is indicative of a lack of intention to cause death.  

Had the appellant intended to kill the deceased, it is unlikely that he  

would flee from the scene without having inflicted more injuries on  

the deceased.   

13. The  judgment  cited  by  the  learned  counsel  for  the  State,  

Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P., AIR  

2006 SC 3010, is quite distinguishable from the present case as in that  

case the knife blow that caused death was given with full force and  

the single injury was found to be 12 c.m. deep.  Even in that case the  

law has been laid down as under:     

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“The  intention  to  cause  death  can  be  gathered  generally from a combination of a few or several   of the following, among other, circumstances: (i)   nature  of  the  weapon  used;  (ii)  whether  the  weapon was carried by the accused or was picked   up from the spot; (iii) whether the blow is aimed at   a vital part of the body; (iv) the amount of force   employed  in  causing injury;  (v)  whether  the  act   was  in  the  course  of  sudden  quarrel  or  sudden  fight or free for all fight; (vi) whether the incident   occurs  by  chance  or  whether  there  was  any   premeditation; (vii)  whether there was any prior  enmity or whether the deceased was a stranger;   (viii)  whether  there  was  any  grave  and  sudden  provocation,  and  if  so,  the  cause  for  such  provocation;  (ix)  whether  it  was  in  the  heat  of   passion;  (x)  whether  the  person  inflicting  the   injury has taken undue advantage or has acted in   a  cruel  and  unusual  manner;  (xi)  whether  the   accused dealt a single blow or several blows. The   above  list  of  circumstances  is,  of  course,  not   exhaustive and there may be several other special   circumstances  with  reference to  individual  cases   which  may  throw  light  on  the  question  of   intention”.

14. This Court has re-iterated the same view in Sridhar Bhuyan v.  

State of  Orissa, AIR 2004 SC  4100; and Gali Venkataiah v.  

State of Andhra Pradesh,  AIR 2008  SC  462.  

15. It is not the case even in any of the dying declarations that the  

appellant had premeditated or preplanned his actions or was having  

any information prior to the incident that the deceased would be found  

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with his  sister  Sandhya at  the  place of  occurrence.   Their  meeting  

might have been taken by the appellant as temerity. Therefore, it is a  

clear cut case of loss of self control and in the heat of passion, the  

appellant caused injuries to Prashant (deceased).  By no means, can it  

be held to be a case of premeditation. The appellant did not cause all  

the injuries on the vital part of the body. Nor the appellant caused the  

fatal injury No.1 with full force, otherwise the said injury could have  

been very deep. On examining the weapon, Dr. Amit Kumar (PW.1)  

opined that injury Nos. 1, 2 and 3 could be caused by handle of the  

knife. Death of Parshant (deceased) was not instantaneous rather he  

died on third day of  the incident.  The appellant  has not  taken any  

undue advantage or acted in cruel or in unusual manner.

16. Undoubtedly, injury No.1 had been caused on the vital part of  

the body of the deceased but it must also be borne in mind that when a  

person loses his sense he may act violently and that by itself may not  

be a ground to be considered against him while determining the nature  

of  the  offence.  Each  case  is  to  be  considered  on  its  own  facts,  

however,  taking a holistic  view of the matter.   In such a case,  the  

entire  attending  circumstances  must  be  taken  into  consideration  in  

order  to  find  out  the  nature  of  the  actual  offence  committed.  

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(See:  Kailash  v.  State  of  M.P.,  (2006  (11)  SCC  420;  and  

Karuppusamy  & Anr.  v.  State  of  Tamil  Nadu, (2006) 11 SCC  

459.)

17. Thus, the facts and circumstances of the case require alteration  

of conviction of the appellant from Section 302 IPC to Section 304  

Part-I IPC and ends of the justice would be met  by awarding ten years  

rigorous  imprisonment  to  the  appellant.   Ordered  accordingly.  The  

appeal is disposed of.  

…………………………….J. (P. SATHASIVAM)

           ………………………..……J. New Delhi, (Dr. B.S. CHAUHAN) January 5, 2011

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