PREMCHAND versus THE STATE OF MAHARASHTRA on 3 March 2023

[2023] 2 S.C.R. 119

PREMCHAND

v.

THE STATE OF MAHARASHTRA

(Criminal Appeal No. 211 of 2023)

MARCH 03, 2023

[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]

Penal Code,1860 – ss. 300,302 307 and 304 – The trial Courtconvicted the appellant for the offence of murder of the victim-deceased and attempt to murder three others – The judgment of thetrial Court was challenged by the appellant by preferring appealbefore the High Court – The High Court upheld the judgment oftrial Court – On appeal, held: The trial court and the High Courtdid not consider written Statement (Ext. 96) of the appellant u/s313(5) Cr.P.C. in its entirety, non-consideration of the same hasmade the conviction vulnerable to interference – Trial Court failedto appreciate the defence version as spelt out in the Ext.96, whichappears plausible – There is a missing link in the prosecution caseas to the motive of the appellant to inflict the blow on the victim –Reading of the contents of Ext.96 does evince an act of retaliationspurred by sudden provocation resulting in a quarrel as well as ascuffle which resulted into death of the victim and others injured –The circumstances clearly negate any suggestion of premeditationin mind – The trial court lacked in objectivity by not examining thefacts and circumstances as to whether the situation was such as islikely to reasonably cause an apprehension in the mind of theappellant that there was imminent danger to his body, of either deathor grievous hurt being caused to him, if he did not act in privatedefence – To impute intention to cause death or the intention tocause that particular injury, which proved fatal, in circumstancesof the case considered as unreasonable – Thus, appellant is entitledto the benefit of Exception 4 to s. 300, IPC – Conviction for murderand sentence of life imprisonment set aside – Appellant convictedu/s. 304, Part II, IPC.

Code of Criminal Procedure,1973 – s.313 – Object and scopediscussed.

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120SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD:1. This is a case where it does not appear from therecords that the written statement (Ext. 96) engaged the attentionof both the trial court as well as the High Court. Applying theprinciples of law, there can be no quarrel that non-considerationBof Ext. 96, to a limited extent, in relation to recording ofconviction and consequently imposition of sentence, has renderedit vulnerable to interference. [Para 18][129-C-D]

2. By not looking into Ext. 96 with the other evidence onrecord, what the trial court omitted to consider is, whether theCprosecution was justified in claiming that the offensive actamounted to culpable homicide amounting to murder or whetherthe appellant being guilty of culpable homicide not amounting tomurder, deserved punishment under section 304, Part II, IPC.True it is, the trial court considered the arguments advanced onbehalf of the appellant that (i) he had “exercised his right of privateDdefence”, and though (ii) “he exceeded such right”, (iii) the presentcase at the most would fall under section 304, Part II, IPC; but, itproceeded to overrule such arguments by relying on the oraltestimony of P.W.s 2 to 4. In the process, the trial court failed toappreciate the defence version as spelt out in Ext.96, whichEappears to us to be plausible. Reading Ext.96 as it is, this Courtfound it probable that there could have been provocation at theinstance of the victim, who allegedly indulged in spitting on theappellant coupled with verbal abuse, whereafter P.W.2 and laterP.W.s 3 and 4 sprang into action, resulting in a scuffle where bothparties indulged in inflicting injuries on each other resulting inFan unwanted loss of life. Regrettably, pointed attention of theHigh Court does not appear to have been drawn to Ext.96 bycounsel on behalf of the appellant. [Paras 20 and 21][129-H; 130-A-E]

3. Though there is no specific admission by the appellantGthat he had stabbed the victim or the other injured witnesses,reading of the contents of Ext.96 does evince an act of retaliationspurred by sudden provocation resulting in a quarrel as well as ascuffle which ultimately, most unfortunately, cost the victim hislife and left some others injured. The appellant too sustainedH

injuries in the scuffle and there is evidence on record that one ofthe injuries was grievous, yet, the criminal law was surprisinglynot set in motion to bring to book those responsible for inflictingsuch injury. It was in a sudden quarrel, which could have beenprovoked by the victim and P.W.2, that blows followed from eachside. Most importantly, the circumstances in which the incidentoccurred does clearly negate any suggestion of premeditation inmind. That apart, it cannot be overlooked that while the victimwas middle-aged, the appellant was in his late fifties. At the timeof the alleged incident, apart from P.W.s 2 and 3, other threepersons who were present at the spot were not examined, as perthe version of P.W.2. It is indeed improbable that in the presenceof such persons, the appellant wielding a weapon like a knifewould come to the spot with an intention to commit the offence ofmurder overpowering all of them without any sufficient reason orprovocation. In this Court’s opinion, the trial court lacked inobjectivity by not examining the facts and circumstances as towhether the situation was such as is likely to reasonably causean apprehension in the mind of the appellant that there wasimminent danger to his body, of either death or grievous hurtbeing caused to him, if he did not act in private defence. To imputeintention to cause death or the intention to cause that particularinjury, which proved fatal, in these circumstances seems to beunreasonable. [Para 23][131-E-H; 132-A-C]

4. The appellant was entitled to the benefit of Exception 4to section 300, IPC. The appellant could not be convicted formurder of the victim. His conviction for murder and sentence oflife imprisonment are liable to be set aside. It is orderedaccordingly. However, this Court found it proper to convict theappellant under section 304, Part II, IPC. [Paras 25, 26 and27][132-E-F]

State of U.P. v. Lakhmi (1998) 4 SCC 336 : [1998] 1SCR 850; Sanatan Naskar v. State of West Bengal (2010)8 SCC 249 : [2010] 7 SCR 1023; Reena Hazarika v.State of Assam (2019) 13 SCC 289 : [2018] 13SCR 1108; Parminder Kaur v. State of Punjab (2020)8 SCC 811 : [2020] 6 SCR 508 - referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.211 of 2023.

From the Judgment and Order dated 06.08.2019 of the High Courtof Judicature at Bombay at Nagpur in CRA No. 211 of 2016.C

Ravindra Bana, Sudheer Voditel, Advs. for the Appellant.

Siddharth Dharmadhikari, Aaditya A. Pande, Bharat Bagla,Ms. Kirti Dadheech, Advs. for the Respondent.

The Judgment of the Court was delivered byDDIPANKAR DATTA, J.

1. This appeal, by special leave, calls in question the judgment andorder dated 06[th] August, 2019 of the High Court of Judicature at Bombay,Bench at Nagpur, whereby Criminal Appeal No 211 of 2016 carried byEthe appellant assailing his conviction under section 302, Indian PenalCode, 1860 (for brevity ‘IPC’) and sentence of life imprisonment with afine of Rs.6,000.00 and a default sentence of one year as well as sentenceof seven years of rigorous imprisonment and fine of Rs.4,000.00 for theoffence punishable under section 307, IPC was dismissed.

F2. The prosecution case was that Nandkishor Korde (for brevity‘the victim’) was murdered on 26[th] September, 2013 at around 5:00 pmby the appellant. The other three victims, namely [REDACTED] (P.W.2),Vilas Charde (P.W.3), and Kunal Babhulkar (P.W.4) received stab injuriescaused by a knife, also inflicted by the appellant. A report was lodgedsoon thereafter by the mother of the victim Rekhabai Korde, (P.W.1),Gleading to registration of an F.I.R. under sections 302 and 307, IPC. Thepost-mortem report dated 27[th] September, 2013 (Ext.35) recorded “stabinjury to neck” of the victim as the probable cause of death.

3. Consequent to the registration of the F.I.R., Police InspectorBharat Thakre (P.W.8) took up the investigation, visited the spot of the H

PREMCHAND v. THE STATE OF MAHARASHTRA[DIPANKAR DATTA, J.]

incident and prepared spot panchnama. He found the spot of the incidentstained with blood and recovered a blood-stained knife, a wooden stickstained with blood, three pairs of chappals, two spectacles, and a bluedot pen. P.W.8 arrested the appellant and since he too had receivedinjuries, he was referred to the Rural Hospital, Katol for his medicalexamination.

4. Upon completion of the investigation, a charge sheet undersections 302 and 307, IPC was filed before the concerned court againstthe appellant. Upon committal, charges for the above-said offences wereframed to which the appellant pleaded not guilty and claimed to be tried.

5. The prosecution examined 8 (eight) witnesses to support of itscase. None was examined on behalf of the defence. However, theappellant filed a written statement, which we propose to refer to at alater part of this judgment. The Additional Sessions Judge largely reliedon the statements of P.W.2, P.W.3, and P.W.4 to convict the appellant.The Court concluded that the appellant committed the murder of thevictim with the knife (Art.1) and also attempted to commit the murder ofP.W.2, P.W.3 and P.W.4. The defence of the appellant appeared to theCourt to be false and the prosecution was held to have proved its casebeyond reasonable doubt. This was followed by the convictions andsentences, noted above.

6. The aforesaid judgment having been challenged before the HighCourt, the relevant Division Bench was of the view that the findings didnot warrant any interference and that the appeal was devoid of anymerit; hence, it was dismissed.

7. The first limb of the arguments advanced by learned counselfor the appellant is that the courts below clearly erred in convicting theappellant. According to him, the following points deserve consideration:

a.Firstly, the courts below failed to appreciate that none ofthe other persons present at the site of the occurrence,namely Shankarrao Fartode, Umrao Charde, and RameshKorde (as per the version of P.W.2) were examined asprosecution witnesses. The courts ought to have inferredthat had they been produced they would not have supportedthe prosecution case and, thus, were deliberately withheld.Non-examination of such independent witnesses, therefore,should be held to be fatal to the prosecution case.

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Ab.Secondly, having regard to the age of the appellant (he was58 years old on the date of the incident), it is quite improbablethat he could freely inflict stab injuries on the victim and theothers without anyone of the injured as well as the otherspresent at the site (Shankarrao Fartode, Umrao Charde,and Ramesh Korde) even making an attempt to resist theBappellant from inflicting injuries as also to save anyone ofthe others.

c.Thirdly, it was necessary to establish, by examining theseindependent witnesses, that it was the appellant who camewith the knife and holding it was on a stabbing spree resultingCin the death of the victim and injury to the others.

d.Fourthly, all eyewitnesses (P.W.2, P.W.3 and P.W.4) whodeposed against the appellant were interested witnessesand, therefore, not credible and their testimony ought not tohave been relied upon.

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e.Fifthly, the courts below failed to take note that P.W.2 andP.W.3 were both interested witnesses and it was a clearcase of false implication by suppressing the original storyof the actual incident.

Ef.Sixthly, it is surprising that although P.W.4 claimed to havesnatched the knife from the appellant, there is no injury onhis hand; on the contrary, there is no explanation from theside of the prosecution with regard to the six injuries sufferedby the appellant.

Fg.Seventhly, no motive could be established for the appellantto assault the victim and P.W.2 as the dispute between theparties arising out of unauthorized construction made byP.W.2 on the ground floor of the building of the appellantrelates back to the year 2003.

h.Seventhly, the knife was not recovered at the instance ofGthe appellant under section 27 of the Indian Evidence Act,1872 but seizure has been shown to have been made at thesite. There being contradictory statements of P.W.2 andP.W.4, it is unclear as to who introduced the knife in thescuffle.

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i.Finally, the appellant was a permanent resident of Nagpurwhereas the place of the incident is Katol, a tehsil placesituated about 50 kms. from Nagpur. There could hardly beany reason for the appellant to travel such distance andmurder the victim, and that too with a knife in broad daylightand in the presence of a host of people.

8. The second limb of the arguments of learned counsel is thateven if it be assumed that death of the victim occasioned at the hands ofthe appellant, as per the prosecution case the victim was initially awayfrom the place of incident and was the last to join the scuffle. Therewas, thus, no premeditation on the part of the appellant as such and thevictim seems to have got injured unintentionally in the scuffle betweenthe appellant on the one side and the victim, P.W.s 2, 3 and 4 on theother. Therefore, clearly, the victim was not the target. He contendedthat conviction of the appellant under section 302, IPC was erroneouson facts and in the circumstances and that the evidence at best madeout a case punishable under section 304, Part II, IPC. The appellant hasbeen behind bars for nine years and it is only fair, just and proper thatthis Court upon consideration of the materials on record directs his releaseby converting the conviction from section 302, IPC to section 304, PartII, IPC and sentencing him to the period already spent in custody.

9. Learned counsel appearing for the State, on the other hand,supported the judgment of conviction and order of sentence of the SessionsJudge. He also submitted that the High Court took pains to reappraisethe evidence and finally concurred with the Sessions Judge. No casehaving been set up by the appellant for interference, he urged this Courtto dismiss the appeal.

10. We have heard the parties, considered the evidence led bythem before the trial court and perused the judgment and order of thetrial court and the High Court.

11. Any detailed discussion of the oral evidence of the prosecutionwitnesses is considered unnecessary in view of the “WRITTENSTATEMENT” dated 31[st] March, 2016 (Ext.96) of the appellant[Annexure ‘P-16’ to the paperbook], which was filed by him before thetrial court in his defence, in terms of sub-section (5) of section 313 Codeof Criminal Procedure, 1973 (for brevity ‘Cr. P.C.). It is also noted thatwhile replying to Q. No.79 in course of examination under section 313(1),the appellant had referred to such a statement.

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A12. The gist of Ext. 96, to the extent relevant for the purpose of adecision on this appeal, is that the appellant used to come to Katol fromNagpur for collecting rent every 2-3 months; that the appellant came toKatol on 26[th] September, 2013 for collecting rent; that while the appellantwas returning from a credit society after withdrawing money and climbingthe stairs of his house, the victim spit on him and threatened him byBsaying “Aaj tere ko fitate hai, tera game bajate hai”; that while theappellant was leaving his house, P.W.2 gave a signal to the victim andP.W.4 by saying “Ala re ala”; on seeing the appellant, the victim took outa knife and P.W.4 took out a ‘fighter’ belonging to P.W.3 and startedbeating him; that the appellant could take the knife with both his handsCand in the meantime P.W.2 and P.W.3 came forward to beat the appellant;that while the appellant tried to save himself, the victim and P.W.s 2 to 4sustained injuries; that the appellant too suffered serious injuries on thefingers of both his hands, knife wounds on his chest and injuries on hischest and right shoulder having been beaten by a wooden stick.Immediately after such incident, the appellant went to the police stationDfor lodging a complaint against his assailants but the same was notreceived. He was made to wait in the police station till 10.00 pm withouthis injuries being treated. He also stated that P.W.s 2, 3 and 4 had strainedrelations with him and that is the reason why they tried to seriouslyinjure him.

E13. There is a plethora of judicial pronouncements on considerationof section 313, Cr. P.C., a few of which need to be noted at this stage.

14. A bench of three Hon’ble Judges of this Court in State ofU.P. vs Lakhmi[1]has extensively dealt with the aspect of value or utilityof a statement under section 313, Cr. P.C. The object of section 313, Cr.FP.C. was explained by this Court in Sanatan Naskar vs. State of WestBengal[2]. The rationale behind the requirement to comply with section313, Cr. P.C. was adverted to by this Court in Reena Hazarika vs.State of Assam[3]. Close on the heels thereof, in Parminder Kaur vs.State of Punjab[4], this Court restated the importance of section 313, Cr.GP.C. upon noticing the view taken in Reena Hazarika (supra) and M.Abbas vs. State of Kerala[5].

1 (1998) 4 SCC 3362 (2010) 8 SCC 2493 (2019) 13 SCC 2894 (2020) 8 SCC 811H5 (2001) 10 SCC 103

15. What follows from these authorities may briefly be summarizedthus:

a. section 313, Cr. P.C. [clause (b) of sub-section 1] is a valuablesafeguard in the trial process for the accused to establish his innocence;

b. section 313, which is intended to ensure a direct dialoguebetween the court and the accused, casts a mandatory duty on the courtto question the accused generally on the case for the purpose of enablinghim to personally explain any circumstances appearing in the evidenceagainst him;

c. when questioned, the accused may not admit his involvementat all and choose to flatly deny or outrightly repudiate whatever is put tohim by the court;

d. the accused may even admit or own incriminating circumstancesadduced against him to adopt legally recognized defences;

e. an accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross-examine him;

f. the explanations that an accused may furnish cannot beconsidered in isolation but has to be considered in conjunction with theevidence adduced by the prosecution and, therefore, no conviction canbe premised solely on the basis of the section 313 statement(s); g. statements of the accused in course of examination under section313, since not on oath, do not constitute evidence under section 3 of theEvidence Act, yet, the answers given are relevant for finding the truthand examining the veracity of the prosecution case;

h. statement(s) of the accused cannot be dissected to rely on theinculpatory part and ignore the exculpatory part and has/have to be readin the whole, inter alia, to test the authenticity of the exculpatory natureof admission; and

i. if the accused takes a defence and proffers any alternate versionof events or interpretation, the court has to carefully analyze and considerhis statements;

j. any failure to consider the accused’s explanation of incriminatingcircumstances, in a given case, may vitiate the trial and/or endanger theconviction.

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A16. Bearing the above well-settled principles in mind, every criminalcourt proceeding under clause (b) of sub-section (1) of section 313 hasto shoulder the onerous responsibility of scanning the evidence after theprosecution closes its case, to trace the incriminating circumstances inthe evidence against the accused and to prepare relevant questions toextend opportunity to the accused to explain any such circumstance inBthe evidence that could be used against him. Prior to the amendment ofsection 313 in 2009, the courts alone had to perform this task. Instancesof interference with convictions by courts of appeal on the ground offailure of the trial court to frame relevant questions and to put the sameto the accused were not rare. For toning up the criminal justice systemCand ensuring a fair and speedy trial, with emphasis on cutting downdelays, the Parliament amended section 313 in 2009 and inserted sub-section (5), thereby enabling the court to take the assistance of the PublicProsecutor and Defence Counsel in preparing such questions [the firstpart of sub-section (5)]. Ideally, with such assistance (which has to bereal and not sham to make the effort effective and meaningful), oneDwould tend to believe that the courts probably are now better equippedto diligently prepare the relevant questions, lest there be any infirmity.However, judicial experience has shown that more often than not, thetime and effort behind such an exercise put in by the trial court does notachieve the desired result. This is because either the accused elects toEcome forward with evasive denials or answers questions with stereotypeslike ‘false’, ‘I don’t know’, ‘incorrect’, etc. Many a time, this does moreharm than good to the cause of the accused. For instance, if facts withinthe special knowledge of the accused are not satisfactorily explained,that could be a factor against the accused. Though such factor by itselfis not conclusive of guilt, it becomes relevant while considering the totalityFof the circumstances. A proper explanation of one’s conduct or a versiondifferent from the prosecution version, without being obliged to facecross- examination, could provide the necessary hint or clue for the courtto have a different perspective and solve the problem before it. Theexercise under section 313 instead of being ritualistic ought to be realisticGin the sense that it should be the means for securing the ends of justice;instead of an aimless effort, the means towards the end should bepurposeful. Indeed, it is optional for the accused to explain thecircumstances put to him under section 313, but the safeguard providedby it and the valuable right that it envisions, if availed of or exercised, H

could prove decisive and have an effect on the final outcome, whichwould in effect promote utility of the exercise rather than its futility.

17. Once a written statement is filed by the accused under sub-section (5) of section 313, Cr. P.C. and the court marks it as an exhibit,such statement must be treated as part of the accused’s statement undersub-section (1) read with sub-section (4) thereof. In view of the lattersub-section, the written statement has to be considered in the light of theevidence led by the prosecution to appreciate the truthfulness or otherwiseof such case and the contents of such statement weighed with theprobabilities of the case either in favour of the accused or against him.

18. This is a case where it does not appear from the records thatthe written statement (Ext. 96) engaged the attention of both the trialcourt as well as the High Court. Applying the principles noted above andfor the reasons discussed below, there can be no quarrel that non-consideration of Ext. 96, to a limited extent, in relation to recording ofconviction and consequently imposition of sentence, has rendered itvulnerable to interference.

19. Ext. 96 refers to inculpatory admissions as well as seeks tobring out exculpatory circumstances. The statement has to be read in itsentirety. The inculpatory admissions emerging from this statement againstthe appellant are (i) his presence at the spot and (ii) sustaining of injuriesby the victim and the other prosecution witnesses while the appellant, asclaimed, was attempting to save himself from getting injured. Theexculpatory circumstances sought to be established are (i) the appellant’sdescription of the act complained of as involuntary, which was compelledby inevitable circumstances and not guided by choice and, (ii) sustainingof injury by him in the same transaction.

20. In view of the inculpatory admissions appearing from Ext.96,the trial court, and the High Court while concurring with the trial court,need not have laboured much to convict the appellant as the personinstrumental for the homicidal death of the victim by discussing theevidence led in course of the trial in details. The appellant’s presence atthe spot and the victim and the injured witnesses sustaining injury incourse of the scuffle could be held to have been established from Ext.96itself. However, by not looking into Ext. 96 with the other evidence onrecord, what the trial court omitted to consider is, whether the prosecutionwas justified in claiming that the offensive act amounted to culpable AB

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Ahomicide amounting to murder or whether the appellant being guilty ofculpable homicide not amounting to murder, deserved punishment undersection 304, Part II, IPC. True it is, the trial court considered thearguments advanced on behalf of the appellant that (i) he had “exercisedhis right of private defence”, and though (ii) “he exceeded suchright”, (iii) the present case at the most would fall under section 304,BPart II, IPC; but, it proceeded to overrule such arguments by relying onthe oral testimony of P.W.s 2 to 4. In the process, the trial court failed toappreciate the defence version as spelt out in Ext.96, which appears tous to be plausible. A senior citizen who visits Katol from Nagpur, hisplace of residence, for collecting rent, having the intention of murderCwould possibly not attempt to do so in broad daylight and in the presenceof witnesses, and that too with a weapon such as a knife. Reading Ext.96as it is, we do find it probable that there could have been provocation atthe instance of the victim, who allegedly indulged in spitting on theappellant coupled with verbal abuse, whereafter P.W.2 and later P.W.s3 and 4 sprang into action, resulting in a scuffle where both partiesDindulged in inflicting injuries on each other resulting in an unwanted lossof life.

21. Regrettably, pointed attention of the High Court does not appearto have been drawn to Ext.96 by counsel on behalf of the appellant, as aconsequence whereof the Court went on to hold that the “act could notEbe shown to have come in any of the exceptions enumerated inSection 300 of IPC”, that “it is neither the result of suddenprovocation nor done in the heat of passion during quarrel”, andthat it had “no hesitation to hold that the death of Nandkishor isculpable homicide amounting to murder”.F

22. Be that as it may, we have no difficulty in proceeding to recordour conclusions resting on the evidence on record as well as Ext.96,which the appellant voluntarily filed before the trial court as his responseto the incriminating materials appearing in the evidence against him whilebeing questioned under section 313, Cr. P.C, for whatever it is worth. ItGappears to us to be a fair and proper disclosure of the appellant’s versionas to what transpired on that fateful evening. The offensive act committedby the appellant has to be appreciated in the surrounding circumstancesnoted below.

23. In the normal run of events, the victim as well as P.W.2 andHthe appellant were not supposed to interact with each other on 26[th]

September, 2013. P.W.2 opened the shop of the victim because the victimhad not returned from the field. If P.W.2 had not opened the shop, theappellant would probably not have met him. It was by chance that theappellant and P.W.2 met each other. The victim and the appellant had noquarrel with each other; whatever was there, it was between the appellantand P.W.2. The inter se quarrel between the two had long subsided.There is a missing link in the prosecution case as to the motive of theappellant to inflict the blow on P.W.2 first. It is in the evidence of P.W.2that he was reading a newspaper sitting in front of the shop of the victimand that the appellant was sitting in the saloon of Baburao Sawarkar(not examined), which was opposite to the shop of the victim. Theappellant, as per P.W.2, was unarmed initially. P.W.2’s further versionwas that the appellant went to his house, fetched a knife and then stabbedP.W.2 on his left shoulder, neck and left-hand finger resulting in seriousbleeding injuries. The reason why the appellant suddenly on seeing theseptuagenarian P.W.2 would go to his house and return with a knife isnot there in the evidence. We shall, for the present, assume that therewere heated exchanges and that the appellant gave a blow to P.W.2first, and thereafter to the others one by one. Then again, the victimwho, according to P.W.2, was supposed to be in the field but appeared inthe scene from some other place all on a sudden, was the third in theseries to be stabbed by the appellant and, thus, was not his target. Thoughthere is no specific admission by the appellant that he had stabbed thevictim or the other injured witnesses, reading of the contents of Ext.96does evince an act of retaliation spurred by sudden provocation resultingin a quarrel as well as a scuffle which ultimately, most unfortunately,cost the victim his life and left some others injured. The appellant toosustained injuries in the scuffle and there is evidence on record that oneof the injuries was grievous, yet, the criminal law was surprisingly notset in motion to bring to book those responsible for inflicting such injury.It was in a sudden quarrel, which could have been provoked by thevictim and P.W.2, that blows followed from each side. Most importantly,the circumstances in which the incident occurred does clearly negateany suggestion of premeditation in mind. That apart, it cannot beoverlooked that while the victim was middle-aged, the appellant was inhis late fifties. At the time of the alleged incident, apart from P.W.s 2 and3, Shankarrao Fartode, Umrao Charde, Ramesh Korde (all three notexamined) were present at the spot, as per the version of P.W.2. It isindeed improbable that in the presence of such persons, the appellant AB

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Awielding a weapon like a knife would come to the spot with an intentionto commit the offence of murder overpowering all of them without anysufficient reason or provocation. In our opinion, the trial court lacked inobjectivity by not examining the facts and circumstances as to whetherthe situation was such as is likely to reasonably cause an apprehensionin the mind of the appellant that there was imminent danger to his body,Bof either death or grievous hurt being caused to him, if he did not act inprivate defence. To impute intention to cause death or the intention tocause that particular injury, which proved fatal, in these circumstancesseems to be unreasonable.

24. Exception 4 to section 300, IPC ordains that culpable homicideCis not murder if it is committed without premeditation in a sudden fight inthe heat of passion upon a sudden quarrel and without the offenderhaving taken undue advantage or acted in a cruel or unusual manner.The explanation thereto clarifies that it is immaterial in such cases whichparty offers the provocation or commits the first assault. Four requirementsDmust be satisfied to invoke this exception, viz. (i) it was a sudden fight;(ii) there was no premeditation; (iii) the act was done in a heat of passion;and (iv) the assailant had not taken any undue advantage or acted in acruel or unusual manner.

25. Taking an overall view of the matter, we are inclined to theEopinion that the appellant was entitled to the benefit of Exception 4 tosection 300, IPC.

26. The upshot of the above discussion is that this is not a casewhere the appellant could be convicted for murder of the victim. Hisconviction for murder and sentence of life imprisonment are liable to beFset aside. It is ordered accordingly.

27. However, we think it proper to convict the appellant undersection 304, Part II, IPC. Since the appellant has suffered imprisonmentfor more than nine years and he is presently in his late sixties, we considerincarceration for such period as adequate punishment. The appellantGshall be released from custody forthwith, unless required in connectionwith any other case.

28. Since the appellant has already served the sentence imposedfor commission of offence under section 307, IPC, based on a convictionwhich is highly suspect, we allow it to rest.

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29. The appeal stands allowed to the extent indicated above. Nocosts.

30. Before parting, we observe that this is a case where the policeshould have investigated the injuries suffered by the appellant too. Theappellant also did not pursue any available remedy to right the wrong.However, in view of little less than a decade having passed since theincident took place, any direction to investigate at this distance of timemay not yield any fruitful result. We, therefore, refrain from issuing suchdirection.

Ankit Gyan(Assisted by : Aarsh Choudhary, LCRA)

Appeal allowed.

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