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
State of Maharashtra …..Respondent
J U D G M E N T
SHIVA KIRTI SINGH, J.
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
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 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.
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.
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. 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.
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.
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 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
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 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]
May 06, 2016.