SUDHAKARversusSTATE OF MAHARASHTRA

                  [2012] B S.C.R. 1169


                       SUDHAKAR                              A
                            v.
               STATE OF MAHARASHTRA
           (Criminal Appeal No. 1603 of 2012)

                   OCTOBER 05, 2012
                                                             B
        rr.s. THAKUR AND FAKKIR MOHAMED
               IBRAHIM KALIFULLA, JJ.]

     Penal Code, 1860 - s. 304 (Part I) - Prosecution of
accused u/s. 302 - For killing his own son - Mother of C
deceased and one neighbour witnesses to the incident -
Seizure of weapon of offence, blood-stained clothes of
accused and bloodstained bed sheets - Report of the
Chemical Analyst disclosing that blood on the clothes of
accused matched with blood group of deceased - Mother in o
her cross-examination stating that the deceased was under
the influence of liquor and in such condition he used to create
ruckus in the house - Trial court convicting the accused u/s.
302 - High Court confirming the conviction - On appeal, held:
Offence against the accused is conclusively proved - There E
is nothing to suggest that tnere was premeditation in the mind
of the accused to cause death - Behavior of the deceased
under influence of liquor created heat of passion· in the
accused - Therefore conviction altered to one u/s. 304 (Part
I) - Sentence of Life Imprisonment altered to period already F
undergone i.e. 8 years.

    The appellant-accused was prosecuted for killing his
own son by stabbing him. Prosecution case was that
PW1 (mother of deceased and wife of accused) lodged a
complaint about the incident. The police seized the G
clothes of the accused, the knife, blood-stained bed
sheets in presence of the panch witnesses. PW. 1 in her
statement before court stated that the deceased was

                           1169                              H
    1170    SUPREME COURT REPORTS               [2012] 8 S.C.R.


A   under influence of liquor and in such condition, he used
    to throw house-hold articles and create a ruckus in the
    house. PW-2 was another witness stated that he had seen
    the accused in front of his house who told him that he
    killed his son. Trial court convicted the accused u/s. 302
B   IPC and sentenced him to life imprisonment and fine of
    Rs. 500/- with default clause. High Court confirmed the
    conviction. Hence the present appeal.

        Partly allowing the appeal, the Court

C      HELD: 1. It came out in evidence that at the time of
  occurrence, there were only three persons, namely, the
  appellant, P.W.1 and the deceased. Though there is
  variation in the version of P.W.1, as between the
  complaint and her evidence before the court, going by the
D evidence available on record, the conclusion of the trial
  court that the appellant was responsible for the death of
  the deceased is unassailable. Apart from the exclusive
  presence of the appellant with a weapon in his hand as
  deposed by P.W.2, the other two persons were the
E deceased and P.W.1. The said conclusion of the trial
  court as well as that of the High Court cannot be doubted.
  Further the report of the chemical analysis also disclosed
  that the blood stained clothes of the appellant matched
  with the blood group of the deceased, which were found
F on the clothes of the deceased himself. Therefore, there
  was conclusive proof to hold that it was the appellant who
  was responsible for the single stab injury inflicted upon
  the deceased with the aid of the knife seized under
  Exhibit-47. [Para 8] [1174-F-H; 1175-A-C]

G       2. There was nothing to suggest that there was any
    premeditation in the mind of the appellant to cause the
    death of the deceased. Taking into account the statement
    of P.W.1 that the deceased was under the influence of
    liquor and that whenever he was under the influence of
H
     SUDHAKAR v. STATE OF MAHARASHTRA                     1171


liquor he used to throw the household articles and create A
a ruckus in the house was a factor which created a heat
of passion in the appellant who as a father was not in a
position to tolerate the behaviour of his son whose
misbehaviour under the influence of liquor was the
torment. Therefore, unmindful of the consequences, B
though not in a cruel manner, the appellant inflicted a
single blow which unfortunately caused severe damage
to the vital organs resulting into the death of the
deceased. In such circumstances, the offence alleged
and as found proved against the appellant can be C
 brought under the First Part of Section 304 IPC.
Accordingly, the conviction is altered as falling under
Section 304 (Part I) IPC in place of Section 302 IPC. [Para
 9) (1175-E-H; 1176-A]

     3. Taking note of the sentence already undergone (8           D
years), it is held that the sentence already undergone
would be sufficient punishment apart from the fine
imposed with the default sentence as per the judgment
of the trial court and as affirmed by the High Court. [Para
9) (11. 76-8-C]                                                    E

    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 1603 of 2012.

    From the Judgment & Order dated 01.12.2011 of the High
Court of Judicature of Bombay Bench at Nagpur in Criminal          F
Appeal No. 84 of 2006.

    K. Rajeev for the Appellant.

    Asha G Nair for the Respondent.
                                                                   G
    The Judgment of the Court was delivered by

     FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Leave
granted and the scope of consideration in this appeal is limited
to the nature of offence and the sentence to be imposed.           H
     1172     SUPREME COURT REPORTS                  [2012] 8 S.C.R.


A         2. This appeal is directed against the judgment of the High
    Court of Judicature at Bombay, Nagpur Bench dated
    01.12.2011 passed in Criminal Appeal No.84 of 2006. By the
    judgment impugned in this appeal, the conviction of the
    appellant for an offence under Section 302 of IPC with a
B   sentence of life imprisonment apart from fine of Rs.500/- in
    default of which to undergo rigorous imprisonment for three
    months by the learned Sessions Judge, Amravati in Sessions
    Trial No.195/2004 dated 22.09.2005 came to be confirmed.

           3. The brief facts which are required to be stated are that
C    on 10.07.2004 P.W.1-Tulsabai preferred a complaint under
     Exhibit-38 with P.W.3-PSI Madhav Dhande attached to Police
     Station Frezarpura, Amravati which came to be registered as
     Crir11e No.138/2004. The printed First Information Report is
     Exhibit-39. According to the complainant, on 09.07.2004
D    between 9.30 p.m. to 10.00 p.m. while her husband, the
     appellant herein, was sleeping on a wooden cot which was in
     the front court-yard of the house, her son Balya-the deceased,
     came from outside and asked the appellant as to whether he
     had taken his dinner to which the appellant replied in the
E    negative. Thereafter, the deceased asked P.W.1 to serve.food
    for him which she did inside the house. Balya went inside the
     house for washing his hands. The deceased stated to have
    asked his father, appellant herein, to sleep inside the house
    and, thereafter, the appellant went inside which was being
F   watched by P.W.1 who was standing near the door of the
    house. It is sated that at that point of time she saw the appellant
    inflicting a stab injury on the deceased on which the deceased
    raised shouts about the inflicting of the injury by his father and
    so saying he also fell down. The appellant stated to have come
G   out of the house by shouting to the effect that he had stabbed
    the deceased and on hearing shouts the appellant's brother one
    Sunil Chandrabhan Bansod arrived at the spot and arranged
    for an auto rickshaw to take the deceased to Irwin Hospital,
    Amravati. It is stated that on being admitted in the hospital, it
H   was declared that the deceased succumbed to the injuries.
      SUDHAKAR v. STATE OF MAHARASHTRA                    1173
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

      4. After investigation, P)/V.3 stated to have arrested the   A
appellant at 1.50 a.m and d[ew the scene of occurrence in the
presence of Panchas under Exhibit-45, seized the clothes of
the appellant under seizure memo~hibit-46, seized the knife
under seizure memo Exhibit-47 and also seized two blood
stained bed-sheets, simple and blood stained soil from the spot    B
in the presence of Panch witnesses under seizure memo
Exhibit-48 which were sent for chemical analyzer report. The
report of the chemical analyzer was marked as Exhibits-30, 35
and 36. Exhibit 35 disclosed that the knife was stained with
 human blood while the clothes of the appellant were stained       C
with blood group 'A' which was the blood group of Balya, the
deceased. Exhibit-36 disclosed that the blood group of the
 appellant as 'B' group. On framing of the charges for the
 offence under Section 302 of IPC, the trial was held against
 the appellant in which four witnesses were examined on the
 side of the prosecution. In the 313 questioning the appellant     D
 totally denied the offence alleged against him.

       5. P .W.1, the-wife of the appellant, is also the mother of
the deceased. As per her version before the Court on the date
of the incident she was present along with her husband, when E
the deceased in the first instance asked the appellant whether
he had his dinner and thereafter P.W.1 served dinner to the
deceased inside the house. The appellant, who was sitting on
the cot outside the house, stated to have went inside the house
while P.W.1 was standing at the entrance of the house. Then F
P.W.1 stated to have heard the cries of the deceased to the
effect that he was dying and when she asked him, he replied
tha_t he was stabbed by the appellant and that she cried for help
to whicl) the neighbours gathered who took the deceased in
an auto .rickshaw to the hospital and that thereafter she lodged G
the repo,rt Exhibit-38. In the cross-examination P.W.1 came out
with the information that the deceased was under the influence
 of liquor ancUhat whenever he was under the influence of liquor
 he used to throw the fiousehold articles and also beat himself.
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    1174     SUPREME COURT REPORTS                  [2012] 8 S.C.R.


A        6. According to P.W.2, a neighbour of the house, on
    hearing the cries of a lady i.e. P.W. i he rushed towards her
    house where he saw the appellant standing outside his house
    and that the door was closed. According to him, when he asked
    the appellant as to what happened, the appellant, who was
B   holding a knife in his hand, informed P.W.2 that he gave one
    blow to his son which made him sleep for ever. P.W.2 also
    stated that P.W.1 Tulsabai opened the door which was latched
    from inside and she ran outside the house. P.W.2 was declared
    hostile. He admitted that the appellant was holding a knife in
C   his hand and was standing outside the house.

          7. P.W.4, the postmortem doctor, who issued Exhibit 51-
    postmortem report deposed that the deceased sustained one
    stab injury of 1Y, inch in length and 2 inches in depth which was
    perforated up to intestine. According to P.W.4 on internal
D   examination he found that the abdominal wall was ruptured due
    to stab on right lateral part of abdominal wall and that
    peritoneal cavity was full of blood, the liver was also found
    ruptured below the stab injury. As per the opinion of P.W.4, the
    probable cause of death was the injury to the vital organ like
E   liver which caused internal haemorrhage and shock. To the
    suggestion put to P.W.4 that the injury mentioned in postmortem
    report could have been caused by the knife of 19 cm. in length
    and 4 cm. in width, the same was denied by him.

          8. Whatever be the subsequent versions made by P.Ws
F
    1 and 2 before the Court, it came out in evidence that at the
    time of occurrence there were only three persons, namely, the
    appellant, P.W.1 and the deceased. The admission of P.W.1
    that the deceased had drinking habit and that whenever he was
G   under the influence of liquor he used to create a ruckus in the
    house was a factor which had to be necessarily borne in mind
    while considering the offence alleged and proved against the
    appellant. Though there is variation in the version of P.W.1, as
    between the complaint and her evidence before the Court,
    going by the evidence available on record, the conclusion of
H
       SUDHAKAR v. STATE OF MAHARASHTRA                    1175
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

  the Trial Court that the appellant was responsible for the death A
  of the deceased is unassailable. Apart from the exclusive
  presence of the appellant with a weapon in his hand as
  deposed by P.W.2, the other two persons were the deceased
  and P.W.1. The said conclusion of the Trial Court as well as
  that of the High Court cannot be doubted. Further the report of B
  the chemical analysis Exhibits 35 and 36 also disclosed that .
  the blood stained clothes of the appellant matched with the
  blood group of the deceased which were found on the clothes
  of the deceased himself. Therefore, there was conclusive proof
  to hold that it was appellant who was responsible for the single C
  stab injury inflicted upon the deceased with the aid of the knife
. seized under Exhibit-47. Having reached the above conclusion,
  the only other question raised was as to whether there is any
  mitigating circumstance in order to hold that the offence would
  fall under any of the Exceptions to Section 300 of IPC to state
  that it was a case of culpable homicide not amounting to
                                                                    0
  murder.

       9. Going by the narration of the facts disclosed, there was
 nothing to suggest that there was any premeditation in the mind
 ofthe appellant to cause the death of the deceased. Taking into E
 account the statement of P.W.1 that the deceased was under
 the influence of liquor and that whenever he was under the
 influence of liquor he used to throw the household articles and
 create a ruckus in the house was a factor which created a heat
 of passion in the appellant who as a father was not in a position F
 to tolerate the behaviour of his son whose misbehaviour under
 the influence of liquor was the torment. Therefore, unmindful of
 the consequences, though not in a cruel manner the appellant
 inflicted a single blow which unfortunately caused severe
 damage to the vital organs resulting into the death of the G
 deceased. In such circumstances, as rightly contended by
 learned counsel for the appellant, we are convinced that the
 offence alleged and as found proved against the appellant can
 be brought under the First Part of Section 304 of IPC.
 Accordingly, while affirming the conviction of the appellant, we H
    1176     SUPREME COURT REPORTS                   (2012] 8 S.C.R.


A  are only altering the same as falling under Section 304 Part I
   of IPC in place of Section 302 of IPC. As far as the sentence
   imposed on the appellant in as much as we reached at the
   conclusion that the conviction should fall under Section 304 Part
   I of IPC, taking note of the sentence already undergone, we find
B from the Imprisonment Certificate that the appellant is in jail from
 . 12.07.2004 and he is 60 year old, P.W.1, who is the wife of
   the appellant, is left all alone and the appellant having suffered
   imprisonment for more than eight years, we hold that the
   sentence already undergone would be sufficient punishment
C apart from the fine imposed with the default sentence as per
   the judgment of the Trial Court and as affirmed by the High
   Court. The appeal stands partly allowed with the above
   modifications of the charge and the sentence imposed on the
   appellant.

D        10. In the light of the modification of the sentence, the
    appellant shall be set at liberty forthwith, if not required in any
    other case.

    K.K.T.                                    Appeal partly allowed.