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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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REPORTABLE

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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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