Case Note & Summary
The appellants, accused Nos.1 and 2, were convicted by the Extra Joint Ad-hoc Additional Sessions Judge, Thane, under Section 302 read with 34 IPC for the murder of Baban, and sentenced to life imprisonment. They were also convicted under Section 324 read with 34 IPC but no separate sentence was awarded. The prosecution case was that on 23/8/2008, the appellants caught hold of the deceased and beat him with a wooden danda and an iron pipe, causing fatal injuries. The complainant, Nanda Patole, witnessed the incident and along with others brought the deceased to the hospital where he was declared dead. The appellants argued that the deceased had abused them in the name of the sister of accused No.2, which enraged them and led to a sudden fight without premeditation. They contended that the offence was not murder but culpable homicide not amounting to murder under Section 304 Part II IPC. The High Court, after considering the submissions and the evidence, found that the incident occurred on a sudden quarrel without premeditation, in the heat of passion upon sudden provocation, and the accused did not take undue advantage or act in a cruel manner. Accordingly, the court altered the conviction from Section 302 IPC to Section 304 Part II IPC and reduced the sentence to the period already undergone, which was more than 10 years. The appeals were partly allowed.
Headnote
A) Criminal Law - Murder - Sudden Provocation - Exception 4 to Section 300 IPC - Appellants convicted under Section 302 IPC for causing death of deceased by hitting with iron pipe and wooden danda - Held that the incident occurred on a sudden quarrel without premeditation, in the heat of passion upon sudden provocation, and the accused did not take undue advantage or act in a cruel manner - Conviction altered to Section 304 Part II IPC (Paras 4-6).
Issue of Consideration
Whether the appellants' conviction under Section 302 IPC for murder is sustainable or whether the offence falls under Section 304 Part II IPC on the ground of sudden provocation and lack of premeditation.
Final Decision
The appeals are partly allowed. The conviction of the appellants under Section 302 read with 34 IPC is set aside and instead they are convicted under Section 304 Part II read with 34 IPC. The sentence is reduced to the period already undergone. The appellants are directed to be released forthwith unless required in any other case.
Law Points
- Sudden provocation
- Exception 4 to Section 300 IPC
- Culpable homicide not amounting to murder
- Section 304 Part II IPC
- Alteration of conviction
Case Details
2019 LawText (BOM) (12) 60
Criminal Appeal No.656 of 2012 with Criminal Application No.767 of 2015 and Criminal Application No.775 of 2018, and Criminal Appeal No.338 of 2015
B. P. Dharmadhikari, Sandeep K. Shinde
Dr. Yug Mohit Chaudhary for the Appellant in Appeal No.656/2012, Mr. S. V. Marwadi for the Appellant in Appeal No.338/2015, Mr. J. P. Yagnik, APP for the Respondent/State
Mr. Atikul Habibul Rehman Shaikh & Anr. (in Appeal No.656/2012) and Vishwanath Jaynath Yadav @ Motha Kaka (in Appeal No.338/2015)
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Nature of Litigation
Criminal appeals against conviction for murder under Section 302 IPC.
Remedy Sought
Appellants sought alteration of conviction from Section 302 IPC to Section 304 Part II IPC and reduction of sentence.
Filing Reason
Appellants were convicted for murder and sentenced to life imprisonment; they appealed challenging the conviction.
Previous Decisions
Sessions Case No.33/2009 and 12/2010 decided on 26/4/2012 by Extra Joint Ad-hoc Additional Sessions Judge, Thane, convicted appellants under Section 302 read with 34 IPC and sentenced to life imprisonment.
Issues
Whether the conviction under Section 302 IPC is sustainable or the offence falls under Section 304 Part II IPC due to sudden provocation.
Submissions/Arguments
Appellants argued that the deceased abused them in the name of sister of accused No.2, causing sudden provocation, and the incident occurred without premeditation, thus the offence is culpable homicide not amounting to murder under Section 304 Part II IPC.
Appellants pointed out that they have been in jail since 1/10/2008, more than 10 years, and sought alteration of conviction.
Ratio Decidendi
The incident occurred on a sudden quarrel without premeditation, in the heat of passion upon sudden provocation, and the accused did not take undue advantage or act in a cruel manner, thus Exception 4 to Section 300 IPC applies, and the offence falls under Section 304 Part II IPC.
Judgment Excerpts
Because of this abuse loosing self control and at the spur of moment they hit deceased and he died. The death therefore cannot be seen as murder under section 302 of IPC and at the most it is an offence falling under section 304(II).
Procedural History
The appellants were convicted on 26/4/2012 by the Extra Joint Ad-hoc Additional Sessions Judge, Thane, in Sessions Case No.33/2009 and 12/2010. They filed Criminal Appeal No.656/2012 and Criminal Appeal No.338/2015 before the Bombay High Court. The appeals were reserved on 17/10/2019 and pronounced on 02/12/2019.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 302, 304, 324, 34, 428
- Indian Evidence Act, 1872: 27
