Page 1

Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.      1603           OF     2012   [@ SLP (CRL) NO.5734 OF 2012]

Sudhakar   …Appellant

VERSUS

State of Maharashtra                …Respondent

J     U     D     G     M     E     N     T   

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Leave granted and the scope of consideration in this  

appeal is limited to the nature of offence and the sentence  

to be imposed.

2. This appeal is directed against the judgment of the High  

Court of Judicature at Bombay, Nagpur Bench dated  

01.12.2011 passed in Criminal Appeal No.84 of 2006. By  

the judgment impugned in this appeal, the conviction of  

the appellant for an offence under Section 302 of IPC with  

a sentence of life imprisonment apart from fine of  

Rs.500/- in default of which to undergo rigorous  

Criminal Appeal No…………… of 2012             1 of 10 [@ SLP (Crl.) No.5734 of 2012]

Page 2

imprisonment for three months by the learned Sessions  

Judge, Amravati in Sessions Trial No.195/2004 dated  

22.09.2005 came to be confirmed.

3. The brief facts which are required to be stated are that on  

10.07.2004 P.W.1-Tulsabai preferred a complaint under  

Exhibit-38 with P.W.3-PSI Madhav Dhande attached to  

Police Station Frezarpura, Amravati which came to be  

registered as Crime No.138/2004. The printed First  

Information Report is Exhibit-39. According to the  

complainant, on 09.07.2004 between 9.30 p.m. to 10.00  

p.m. while her husband, the appellant herein, was  

sleeping on a wooden cot which was in the front court-

yard of the house, her son Balya-the deceased, came from  

outside and asked the appellant as to whether he had  

taken his dinner to which the appellant replied in the  

negative. Thereafter, the deceased asked P.W.1 to serve  

food for him which she did inside the house. Balya went  

inside the house for washing his hands. The deceased  

stated to have asked his father, appellant herein, to sleep  

inside the house and, thereafter, the appellant went  Criminal Appeal No…………… of 2012             2 of 10 [@ SLP (Crl.) No.5734 of 2012]

Page 3

inside which was being watched by P.W.1 who was  

standing near the door of the house. It is sated that at  

that point of time she saw the appellant inflicting a stab  

injury on the deceased on which the deceased raised  

shouts about the inflicting of the injury by his father and  

so saying he also fell down. The appellant stated to have  

come out of the house by shouting to the effect that he  

had stabbed the deceased and on hearing shouts the  

appellant’s brother one Sunil Chandrabhan Bansod  

arrived at the spot and arranged for an auto rickshaw to  

take the deceased to Irwin Hospital, Amravati. It is stated  

that on being admitted in the hospital, it was declared  

that the deceased succumbed to the injuries.  

4. After investigation, P.W.3 stated to have arrested the  

appellant at 1.50 a.m and drew the scene of occurrence  

in the presence of Panchas under Exhibit-45, seized the  

clothes of the appellant under seizure memo Exhibit-46,  

seized the knife under seizure memo Exhibit-47 and also  

seized two blood stained bed-sheets, simple and blood  

stained soil from the spot in the presence of Panch  

Criminal Appeal No…………… of 2012             3 of 10 [@ SLP (Crl.) No.5734 of 2012]

Page 4

witnesses under seizure memo Exhibit-48 which were  

sent for chemical analyzer report. The report of the  

chemical analyzer was marked as Exhibits-30, 35 and 36.  

Exhibit 35 disclosed that the knife was stained with  

human blood while the clothes of the appellant were  

stained with blood group ‘A’ which was the blood group of  

Balya, the deceased. Exhibit-36 disclosed that the blood  

group of the appellant as ‘B’  group. On framing of the  

charges for the offence under Section 302 of IPC, the trial  

was held against the appellant in which four witnesses  

were examined on the side of the prosecution. In the 313  

questioning the appellant totally denied the offence  

alleged against him.  

5. P.W.1, the wife of the appellant, is also the mother of the  

deceased. As per her version before the Court on the date  

of the incident she was present along with her husband,  

when the deceased in the first instance asked the  

appellant whether he had his dinner and thereafter P.W.1  

served dinner to the deceased inside the house. The  

appellant, who was sitting on the cot outside the house,  

Criminal Appeal No…………… of 2012             4 of 10 [@ SLP (Crl.) No.5734 of 2012]

Page 5

stated to have went inside the house while P.W.1 was  

standing at the entrance of the house. Then P.W.1 stated  

to have heard the cries of the deceased to the effect that  

he was dying and when she asked him, he replied that he  

was stabbed by the appellant and that she cried for help  

to which the neighbours gathered who took the deceased  

in an auto rickshaw to the hospital and that thereafter  

she lodged the report Exhibit-38. In the cross-

examination P.W.1 came out with the information that  

the deceased was under the influence of liquor and that  

whenever he was under the influence of liquor he used to  

throw the household articles and also beat himself.  

6. According to P.W.2, a neighbour of the house, on hearing  

the cries of a lady i.e. P.W.1 he rushed towards her house  

where he saw the appellant standing outside his house  

and that the door was closed. According to him, when he  

asked the appellant as to what happened, the appellant,  

who was holding a knife in his hand, informed P.W.2 that  

he gave one blow to his son which made him sleep for  

ever. P.W.2 also stated that P.W.1 Tulsabai opened the  

Criminal Appeal No…………… of 2012             5 of 10 [@ SLP (Crl.) No.5734 of 2012]

Page 6

door which was latched from inside and she ran outside  

the house. P.W.2 was declared hostile. He admitted that  

the appellant was holding a knife in his hand and was  

standing outside the house.

7. P.W.4, the postmortem doctor, who issued Exhibit 51-

postmortem report deposed that the deceased sustained  

one stab injury of 1½ inch in length and 2 inches in  

depth which was perforated up to intestine. According to  

P.W.4 on internal examination he found that the  

abdominal wall was ruptured due to stab on right lateral  

part of abdominal wall and that peritoneal cavity was full  

of blood, the liver was also found ruptured below the stab  

injury. As per the opinion of P.W.4, the probable cause of  

death was the injury to the vital organ like liver which  

caused internal haemorrhage and shock. To the  

suggestion put to P.W.4 that the injury mentioned in  

postmortem report could have been caused by the knife  

of 19 cm. in length and 4 cm. in width, the same was  

denied by him.

Criminal Appeal No…………… of 2012             6 of 10 [@ SLP (Crl.) No.5734 of 2012]

Page 7

8. Whatever be the subsequent versions made by P.Ws 1  

and 2 before the Court, it came out in evidence that at  

the time of occurrence there were only three persons,  

namely, the appellant, P.W.1 and the deceased. The  

admission of P.W.1 that the deceased had drinking habit  

and that whenever he was under the influence of liquor  

he used to create a ruckus in the house was a factor  

which had to be necessarily borne in mind while  

considering the offence alleged and proved against the  

appellant. Though there is variation in the version of  

P.W.1, as between the complaint and her evidence before  

the Court, going by the evidence available on record, the  

conclusion of the Trial Court that the appellant was  

responsible for the death of the deceased is unassailable.  

Apart from the exclusive presence of the appellant with a  

weapon in his hand as deposed by P.W.2, the other two  

persons were the deceased and P.W.1. The said  

conclusion of the Trial Court as well as that of the High  

Court cannot be doubted. Further the report of the  

chemical analysis Exhibits 35 and 36 also disclosed that  

the blood stained clothes of the appellant matched with  Criminal Appeal No…………… of 2012             7 of 10 [@ SLP (Crl.) No.5734 of 2012]

Page 8

the blood group of the deceased which were found on the  

clothes of the deceased himself. Therefore, there was  

conclusive proof to hold that it was appellant who was  

responsible for the single stab injury inflicted upon the  

deceased with the aid of the knife seized under Exhibit-

47. Having reached the above conclusion, the only other  

question raised was as to whether there is any mitigating  

circumstance in order to hold that the offence would fall  

under any of the Exceptions to Section 300 of IPC to state  

that it was a case of culpable homicide not amounting to  

murder.

9. Going by the narration of the facts disclosed, there was  

nothing to suggest that there was any premeditation in  

the mind of the appellant to cause the death of the  

deceased. Taking into account the statement of P.W.1  

that the deceased was under the influence of liquor and  

that whenever he was under the influence of liquor he  

used to throw the household articles and create a ruckus  

in the house was a factor which created a heat of passion  

in the appellant who as a father was not in a position to  Criminal Appeal No…………… of 2012             8 of 10 [@ SLP (Crl.) No.5734 of 2012]

Page 9

tolerate the behaviour of his son whose misbehaviour  

under the influence of liquor was the torment. Therefore,  

unmindful of the consequences, though not in a cruel  

manner the appellant inflicted a single blow which  

unfortunately caused severe damage to the vital organs  

resulting into the death of the deceased. In such  

circumstances, as rightly contended by learned counsel  

for the appellant, we are convinced that the offence  

alleged and as found proved against the appellant can be  

brought under the First Part of Section 304 of IPC.  

Accordingly, while affirming the conviction of the  

appellant, we are only altering the same as falling under  

Section 304 Part I of IPC in place of Section 302 of IPC.  

As far as the sentence imposed on the appellant in as  

much as we reached at the conclusion that the conviction  

should fall under Section 304 Part I of IPC, taking note of  

the sentence already undergone, we find from the  

Imprisonment Certificate that the appellant is in jail from  

12.07.2004 and he is 60 year old, P.W.1, who is the wife  

of the appellant, is left all alone and the appellant having  

suffered imprisonment for more than eight years, we hold  Criminal Appeal No…………… of 2012             9 of 10 [@ SLP (Crl.) No.5734 of 2012]

Page 10

that the sentence already undergone would be sufficient  

punishment apart from the fine imposed with the default  

sentence as per the judgment of the Trial Court and as  

affirmed by the High Court. The appeal stands partly  

allowed with the above modifications of the charge and  

the sentence imposed on the appellant.  

10. In the light of the modification of the sentence, the  

appellant shall be set at liberty forthwith, if not required  

in any other case.

     .……….……….…………………………...J.

                         [T.S. Thakur]

 ....……………. ………………………………J.

            [Fakkir Mohamed Ibrahim Kalifulla]

New Delhi; October 05, 2012

Criminal Appeal No…………… of 2012             10 of 10 [@ SLP (Crl.) No.5734 of 2012]