LAVGHANBHAI DEVJIBHAI VASAVA versus THE STATE OF GUJARAT on 10 January 2018

SUPREME COURT REPORTS[2018] 1 S.C.R. 674

[2018] 1 S.C.R.

ALAVGHANBHAI DEVJIBHAI VASAVA

v.

THE STATE OF GUJARAT

(Criminal Appeal No. 253 of 2018)

BJANUARY 10, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Penal Code, 1860 – s.302 – Conviction under – If justified –Deceased died during treatment after being hit by appellant-accused(deceased’s husband), when an altercation took place between themCin connection with preparation of food – Appellant convicted bytrial court u/s.302 – Conviction upheld by High Court – Held: It isthe case of prosecution itself that the incident took place in thespur of moment – Delay in preparing lunch by the deceased wasthe reason of the sudden altercation when the appellant picked upDa wooden object and hit the deceased – It is also an admitted caseof prosecution that only one single blow was inflicted – Medicalevidence shows that not much force was used in inflicting the blowto the deceased – Prosecution did not set up any case suggestingthat relationship between the deceased and the appellant was notcordial – Thus, it was an offence which would be covered by s.304EPart-II and not s.302 – While maintaining the culpability of theappellant, his conviction altered to s.304 Part-II instead of s.302 –Appellant has already served 9 years and 3 months of imprisonmentapproximately – In the facts of the case, sentence of appellantreduced to the period already undergone and he be releasedFforthwith, if not wanted in any other case.

Penal Code, 1860 – ss.302, 304 – Parameters to be takeninto consideration while deciding the question as to whether a casefalls u/s.302 or u/s.304 – Discussed.

Partly allowing the appeal, the CourtGHELD: 1. The prosecution case itself proceeded that the HELD: 1. The prosecution case itself proceeded that theincident took place in the spur of moment. On 15.03.2008, whenthe deceased along with her mother went for labour work inagricultural field and she returned home around noon, she waspreparing lunch in kitchen when, as per the prosecution story,the appellant came to the house and questioned the deceasedH

about delay in cooking lunch. On this, altercation took placebetween the appellant and his wife. At that stage, the appellantgot furious and in a rush of moment, he picked a wooden objectlying near the place of incident and inflicted injury to the deceased.It is also an admitted case of the prosecution that only one singleblow was inflicted. The death of deceased took place 10 daysafter the said incident while she was undergoing treatment atHospital. This is the case of the prosecution itself. [Para 7] [677-E-G]

2. The parameters which are to be taken into considerationwhile deciding the question as to whether a case falls under Section302 IPC or 304 IPC, are the following: (a) The circumstances inwhich the incident took place; (b) The nature of weapon used;(c) Whether the weapon was carried or was taken from the spot;(d) Whether the assault was aimed on vital part of body; (e) Theamount of the force used; (f) Whether the deceased participatedin the sudden fight; (g) Whether there was any previous enmity;(h) Whether there was any sudden provocation; (i) Whether theattack was in the heat of passion; and (j) Whether the personinflicting the injury took any undue advantage or acted in thecruel or unusual manner. [Para 8] [677-H; 678-A-D]

3. The case of the appellant would fall under Section 304IPC as the incident took place due to a sudden altercation whichwas a result of delay in preparing lunch by the deceased. Theappellant picked up a wooden object and hit the deceased. Themedical evidence shows that not much force was used in inflictingblow to the deceased. The prosecution had not set up any casesuggesting that relationship between the the husband and wifewas not cordial, otherwise. Manifestly, the incident took placedue to sudden provocation and in a heat of passion the appellanthad struck a blow on his wife, without taking any undue advantage.Therefore, it was an offence which would be covered by Section304 Part-II IPC and not 302 IPC. [Para 9] [678-D-F]

Dhirendra Kumar v. State of Uttarakhand (2015) 3SCALE 30 – relied on.

Case Law Reference

(2015) 3 SCALE 30relied onPara 8

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ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 253 of 2018

From the Judgment and Order dated 29.09.2015 by the High Courtof Gujarat at Ahmedabad in Criminal Appeal No. 978 of 2011.

Dr. Sushil Balwada, Jai Wadhwa, Sandiv Kalia, Advs. for theBAppellant.

Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Mamta Singh, Ms.Shodhika Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered by

A. K. SIKRI, J. 1. Leave granted.C

2. We have heard learned counsel for the parties at this stage.

3. The appellant herein has been convicted by the Trial Court foran offence under Section 302 of the Indian Penal Code, 1860 (IPC) andsentenced to undergo life imprisonment and pay a fine of Rs.500/-, indefault, to undergo simple imprisonment for three months. This convictionDand sentence has been upheld by the High Court vide impugned judgmentdated 29.09.2015.

4. In the Special Leave Petition filed by the appellant against thesaid judgment, notice was issued on the limited aspect as to whether theconviction under Section 302 IPC is justified or it should be convertedEinto one under Section 304 IPC. The matter has been considered focusingon this aspect. We may now recapitulate the facts in brief.

5. According to the prosecution case, original complainant of thiscase namely, Shantaben @ Dhaniben Somabhai, is the mother ofdeceased Shakuben. She lodged a complaint before Nabipur Police onF15.03.2008 that her daughter deceased Shakuben was married to accusedLavghanbhai Devjibhai Vasava in Fichwada village about eight yearsago. Deceased Shakuben and the accused had been living in Navinagriof Shahpura, the village of the complainant, for about one year andmaintaining themselves by doing labour work. In the morning on the dayGof the incident, deceased Shakuben and her mother Shantaben had gonefor labour-work of weeding in the farm of Patel of the village wherecrop of ladies’ finger had been cultivated. They returned home at about1200 hrs. in noon for having their meal and her daughter went to herhouse. When the complainant was at her house, Vishnu, aged 6 years,son of deceased Shakuben came to her house and told that his motherHhas been hit with leg of a cot on her head and she was bleeding. Therefore,

she immediately went to the house of the deceased. At that time, deceasedShakuben was lying near hearth in the house in an unconscious stateand a blood stained leg of cot was lying there. It was known from thepeople gathered there that an altercation took place between the deceasedand the accused in connection with preparing food. As the accused gotinstigated, he hit leg of cot on the head of the deceased and ran away.As the deceased was bleeding from her head, Kaliben daughter of thecomplainant, Lalo Amir Vasava resident of her street and DineshKashibhai Vasava took deceased Shakuben to a hospital at Bharuch inan auto rickshaw of Pravinbhai Gopalbhai, resident of the village. Thecomplainant returned to her house. Pravinbhai returned home with hisrickshaw in evening and told that the deceased has been sent to Vadodarafrom Bharuch for further treatment. Thus, under such circumstances,the original complainant Shantaben lodged a complaint before the police.

6. As aforesaid, on the conclusion of the trial and after appreciatingthe oral and documentary evidence, the Trial Court returned a finding ofguilt against the appellant and convicted and sentenced him under Section302 IPC. As far as event/occurrence is concerned, that stands provedand to that extent judgments of the courts below are without any infirmity.As mentioned above, the only question is as to whether it was a case forconviction under Section 302 IPC or 304 IPC.

7. We have perused the evidence in this behalf. We find that theprosecution case itself proceeds that the incident took place in the spurof moment. On 15.03.2008, when the deceased along with her motherwent for labour work in agricultural field and she returned home aroundnoon, she was preparing lunch in kitchen when, as per the prosecutionstory, the appellant came to the house and questioned the deceased aboutdelay in cooking lunch. On this, altercation took place between theappellant and his wife. At that stage, the appellant got furious and in arush of moment, he picked a wooden object lying near the place ofincident and inflicted injury to the deceased. It is also an admitted caseof the prosecution that only one single blow was inflicted. The death ofShakuben took place 10 days after the said incident while she wasundergoing treatment at Baroda Hospital. This is the case of theprosecution itself.

8. This Court in the case of Dhirendra Kumar versus State ofUttarakhand[ 2015 )3) SCALE 30] has laid down the parameters whichare to be taken into consideration while deciding the question as to whether AB

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Aa case falls under Section 302 IPC or 304 IPC, which are the following:

(a) The circumstances in which the incident took place; (b) The nature of weapon used;

(c) Whether the weapon was carried or was taken from thespot;B

(d) Whether the assault was aimed on vital part of body; (e) The amount of the force used.

(f) Whether the deceased participated in the sudden fight; (g) Whether there was any previous enmity; C(h) Whether there was any sudden provocation.

(i) Whether the attack was in the heat of passion; and (j) Whether the person inflicting the injury took any undueadvantage or acted in the cruel or unusual manner.

9. Keeping in view the aforesaid factors it becomes evident thatDthe case of the appellant would fall under Section 304 IPC as the incidenttook place due to a sudden altercation which was a result of delay inpreparing lunch by the deceased. The appellant picked up a woodenobject and hit the deceased. The medical evidence shows that not muchforce was used in inflicting blow to the deceased. The prosecution hasnot set up any case suggesting that relationship between the the husbandEand wife was not cordial, otherwise. Manifestly, the incident took placedue to sudden provocation and in a heat of passion the appellant hadstruck a blow on his wife, without taking any undue advantage. We are,therefore, of the opinion that it was an offence which would be coveredby Section 304 Part-II IPC and not 302 IPC.F

10. This is appeal is, thus, partly allowed. While maintaining theculpability of the appellant, his conviction is altered to Section 304 Part-II IPC instead of Section 302 IPC. The appellant has already served 9years and 3 months of imprisonment approximately. In the facts of thiscase, we are of the opinion that the sentence of the appellant be reducedGto the period already undergone. Ordered accordingly.

11. The appellant shall be released forthwith, if not wanted in anyother case.

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Divya Pandey Appeal partly allowed.