PRABHAKAR VITHAL GHOLVE Vs STATE OF MAHARASHTRA
Bench: DIPAK MISRA,SHIVA KIRTI SINGH
Case number: Crl.A. No.-000448-000448 / 2016
Diary number: 9547 / 2016
Advocates: DEEPAK ANAND Vs
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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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