SANGHARAJ BHOGAPPA KAMBLE v.

STATE OF MAHARASHTRA (Criminal Appeal No. 24 of 2006)

OCTOBER 26, 2010 [HARJIT SINGH BEDI AND CHANDRAMAULI  KR. PRASAD, JJ.]

2010(13) SCR 376

The following order of the Court was delivered

ORDER

1. This appeal by way of special leave exemplifies the consequences of  

uncontrolled drinking and the dangers that go with it.

2.  On  5th  November,  1988,  the  deceased  had  gone  to  his  duty  at  

8:00a.m. and returned at  7:30p.m. and after  having dinner  with  his  family  

members was sitting in the house conversing with them. At that moment, the  

accused accompanied by his friend, who was a neighbour and also a friend of  

the deceased, came to the house of the deceased and asked him to join him  

for a drink. The deceased, however, replied that as he had already had his  

dinner  he  was  not  inclined  to  take  any  liquor.  The accused  nevertheless  

insisted that the deceased should at least come out of the house and sit with  

them. The deceased agreed to this arrangement and went out of the house  

and the accused, his friend and the deceased sat outside the complainant's  

house where the accused and his friend then consumed liquor. It  appears  

that after short time the accused started talking in an incoherent manner on  

which his father came out and seeing his condition got annoyed and asked  

the accused to leave the place and to stop drinking. This led to an exchange  

of hot words between the accused and his father following which the accused  

slapped his father and the father also slapped the accused. The deceased  

intervened at that stage and asked the accused as to why he was abusing his  

father and remonstrated with him on that account.  The accused, however,

turned on the deceased and told him that he was nobody to interfere in a  

dispute between him and his father and a quarrel ensued between the two.  

The  father  of  the  deceased  also  intervened  in  the  quarrel  and  tried  to  

separate them but he was pushed aside. The accused then took out a knife  

from his pocket and stabbed the deceased in his chest causing him a serious  

injury leading to his death. While the quarrel was going on Leena, P.W.5, the  

sister  of  the deceased and several  others also came to the spot.  A case  

under Section 302 of the IPC was accordingly, registered against the accused  

and on completion of investigation he was put to trial. The trial court and the  

High Court  have concurrently held that  the case of  the prosecution stood  

proved and that the accused was liable for the murder. He was, accordingly,  

awarded a life sentence.

3. When this matter came up before this Court by way of special leave on  

the 12th August, 2005, notice was issued limited to the nature of the offence  

as  also on the question of  bail.  Leave was  granted thereafter  on the  5th  

January, 2006, and having regard to the facts of the case and the question as  

to whether the offence would fall under Section 302 or Section 304 Part I or  

Part II of the Indian Penal Code, bail was also granted to the accused on that  

day. The matter is before us for final disposal.

4.  We  have  perused  the  office  report  and  see  that  Mr.  V.B.  Joshi,  

Advocate,  who had filed  this  appeal  has  since passed  away.  Notice  was  

issued to the accused to make alternative arrangements but it appears that  

despite  service  being  complete  he  has  not  chosen  to  appear.  In  normal  

circumstances, we would have appointed an Amicucs Curiae but in the light  

of the fact that we intend to make an order in favour of the accused, we find  

that this would not be necessary.

5. In the light of what we have noticed above, the question that arises is  

as to the nature of the offence and whether the case of the accused would fall  

under Section 302 or  304 Part  I  or  Part  II  thereof.  A perusal  of  the facts

already recapitulated above would reveal that the incident herein would fall  

under Exception 4 to Section 300. Exception 4 reads as under;

Exception  4 _ Culpable homicide is  not  murder  if  it  is  committed  

without  premeditation in a sudden fight  in the heat  of  passion upon a  

sudden quarrel and without the offender having taken undue advantage  

or acted in a cruel or unusual manner."

6. This exception postulates four conditions for its applicability (i) that it  

was a sudden fight; (2) that there was no pre-meditation; (3) the act was done  

in  a heat  of  passion and (4)  that  the appellant  had not  taken any undue  

advantage or acted in an unusual or cruel manner.

7. A perusal of the facts above mentioned would indicate that the accused  

and deceased were neighbours and friends and in fact they appeared to have  

been  drinking  companions  as  well.  The  incident  happened  because  the  

accused felt that the deceased should not come in the way of a quarrel that  

he  had  with  his  father,  notwithstanding  the  fact  that  the  father  was  only  

remonstrating  with  him  as  he  was  already  drunk  having  taken  excessive  

liquor. The only fault of the deceased was that when the accused slapped his  

father,  he  intervened  and  told  the  accused  that  he  should  behave  which  

further annoyed him and led him to cause one injury to the deceased. We,  

therefore,  see  that  the  conditions  for  the  applicability  of  Exception  4  are  

clearly satisfied.

8.  We have also perused the medical  evidence and find that  there is  

effectively  only one stab injury on the person of  the deceased the others  

being abrasions which could have been caused during the intervention in the  

quarrel  between  the  father  and  son.  It  cannot,  therefore,  be  said  with  

certainity that the accused intended to cause the very injury that he inflicted.

9. In this view of the matter, we feel that the conviction of the accused for  

the offence under Section 302 of IPC is not made out. He is, accordingly,  

acquitted of that offence. We, however, convict him for the offence punishable

under Section 304 Part I of the IPC and sentence him to undergo rigorous  

imprisonment for five years.

10. With this modification in the judgment of the courts below, the appeal is  

dismissed.