PRABHAKAR VITHAL GHOLVEversusSTATE OF MAHARASHTRA

                       [2016] 2 S.C.R. 595



               PRABHAKAR VITHAL GHOLVE                                 A
                                v.
                  STATE OF MAHARASHTRA
                (Criminal Appeal No. 448 of2016)
                          MAY06,2016                                   B

       [DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.]
      Penal Code, 1860: s.302 - Fatal assault upon the victim-
deceased at the hands of the appellant and another accused, a
juvenile - Prosecution case was that occurrence originated on
account of some minor grievance against the deceased that she did
                                                                       c
not convey a telephonic message to the appellant - The juvenile
offender went to the house of the deceased and assaulted him -
When he was overpowered by complainant party, he started crying
whereupon the appellant and four others rushed to the place of
occurrence - Appellant and juvenile offender used sticks to cause      D
injuries on the head of the deceased which resulted in his death -
Conviction of appellant uls.302 attracting sentence of life
imprisonment - On appeal, held: There was no reason for the assault
except an assertion that the appellant was unhappy on a minor
issue that the deceased had received some message on telephone
                                                                       E
but did not convey the same to the appellant - No case was made
out by the prosecution that there was any motive for doing away
with the life of the deceased - Conviction of appellant uls.302 set
aside and substituted with conviction uls.304 Part I - Sentence of
life imprisonment reduced to imprisonment for the period already
undergone by the appellant.                                            F
     Allowing the appeal, the Court
     HELD: It is evident 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.        G
However, the injuries on head did prove fatal and knowledge of
such effect of the injuries can be fastened against the appellant.
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·           H
                                595
596            SUPREME COURT REPORTS                         [2016] 2 S.C.R.


A   members of juvenile offender 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
B
    quarrel. The conviction of the appellant under Section 302 IPC
    is set aside and is substituted 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 which period is sufficient to
c meet the ends of justice. Hence the sentence of imprisonment
    for life is reduced to imprisonment for the period already
    undergone by the appellant. [Paras 6, 7] [598-C-G]
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      448 of2016.
D          From the Judgment and Order dated 06.01.2014 of the High Court
      of Bombay in Crl.A No. 87 of2005.
          Jayant Muth Raj, Sabrish Subramanian, Prabhurama Subramanian,
      Deepak Anand for the Appellant.
 E          Vadrevu V. V. Pattabhiram, Nishant Ramakantrao Katneshwarkar
      for the Respondent.
           The Judgment of the Court was delivered by
           SHIVA KIRTI SINGH, J. 1. By the impugned judgment and order
      under appeal dated 06.01.2014 the High Court of Judicature at Bombay
 F    dismissed Criminal Appeal No.87 of2005 preferred by the appellant and
      confirmed his conviction for an offence under Section 302 of the IPC as
      well as sentence oflife imprisonment and fine ofRs.1000/-with a default
      clause as imposed by the Addi. Sessions Judge, Solapur by judgment
      dated 31.12.2004 in Sessions Case No.132 of 2004.
G          2. 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
      thatthe courts below failed to appreciate the implications of evidence of
 H
             PRABHAKAR VITHAL GHOLVE v. STATE OF                                  597
              MAHARASHTRA [SHIVA KIRTI SINGH, J.]

  PW-6, Bapulal Shaikhlal Golve who is the brother of the deceased and             A
  an eye witriess. 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
                                                                                   B
  the left eye 2.0 ems x 0.5 ems vertical. The other injury was an abrasion
  over back central region 0.5 ems x 0.5 ems. Both the injuries were by
  hard and blunt object.
         3. On the basis ofaforesaid materials, according to learned counsel
   forthe appellant the conviction could at best be valid under Section 304
   Part I and not under Section 302 of the !PC.
                                                                                   c
        4. 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 the11ppellant 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           D
   appellant. This has ~een 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            E
   assaulted on head by the appellant as well as the juvenile offender Bafu.
   According to medical evidence the deceased had received injuries on
   head resulting into fracture of skull near the parietal left eminence.
          5. As noted earlier, PW-6 who is brother of the ~eased has also
    claimed to be an eye witness. He has deposed that appellant was abusing        F
   "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 Ba:lu came to their house and allegedly assaulted PW-4 and the
    deceased on head by stick. On hearing shouts, PW-6 rushed to the plac-e
    of occurrence and caught accused Jralu. When he pushed Balu with a
    view to take him towards Balu's house, Balu shouted in loud voice and          G
    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
    tlie deceased by stick on head followed by Balu who also assaulted the
    deceased by stick on head. The deceased fell down and died immediately.
         6. Taking an overall broad view of the facts noticed above; it is         H
598             SUPREME COURT REPORTS                           [2016) 2 S.C.R.'


A     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
 B
      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,
c     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 the appellant.
D
            7. 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 I 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 ofjuvenile offender
 E
      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
 F    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 I 2 years of actual imprisonment. The aforesaid
      period, in our estimate is sufficient to meet the ends of justice. Hence
 G    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.
 H    Devika Gujral                                                Appeal allo11·ed.