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PETITIONER: RAMESH LAXMAN PARDESHI

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT10/04/1987

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) KHALID, V. (J)

CITATION:  1987 SCR  (2) 907        1987 SCC  Supl.    1  JT 1987 (3)     5        1987 SCALE  (1)826

ACT:     Indian Penal Code, 1860--S. 302 or 304 Part  I--Evidence indicated  exchange  of  hot  words--Prosecution   Witnesses deliberately suppressed the exact words used--Whether infer- ence  could be drawn that if those words were given out,  it would  have damaged the prosecution case--Whether the  words used  by the deceased and his friends caused provocation  to accused--No  premeditation--Injury caused at spur of  moment and  in heat of passion proved fatal--Whether  intention  to cause  death can be attributed--Whether the case would  fall within the purview of s. 302 or 304 Part I.

HEADNOTE:     The appellant alongwith others was prosecuted for  caus- ing the death of Sheroo Lala. It was alleged that during the exchange of hot words between the party of the deceased  and the  party of the appellant, the appellant inflicted a  stab wound  in  the stomach of Sheroo with a Rampuri knife  as  a result of which he died. On trial the appellant was convict- ed for an offence under s. 302 of the Indian Penal Code  and sentenced to imprisonment for life and on appeal his convic- tion and sentence was maintained.     In the appeal to this Court, on behalf of the  appellant it was contended; (1) that Maruti one of the accused persons had  a  contused lacerated wound on the head  on  the  right occipital  parietal region and the defence version was  that when  exchange  started  between Sheroo  and  Maruti,  first Maruti  was  assaulted  and then in  exchange,  one  another accused  took  a knife and gave a blow to the  deceased  and thus plea of the accused was that this injury was  inflicted on  Sheroo in the exercise of right of private defence;  and (2)  that both the Courts below came to the conclusion  that as  soon as Sheroo and his party arrived near the  hand-cart of Badshah, there was a hot exchange between the two  sides. The  witnesses examined by the prosecution have not  clearly stated what words were uttered and the trial court felt that the language was obscene and probably the witnesses did  not like  to mention whereas the High Court felt that  the  wit- nesses  were not in a position to mention the  exact  words. However,  both the Courts did reach a conclusion that  there was a hot exchange between the two groups and, therefore, in 902

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such  a situation it could not be doubted that the party  of the  accused  was provocated and on such  grave  and  sudden provocation at the heat of the moment, the appellant who was carrying a knife took it out and inflicted only one blow and did  not even attempt a second blow and the findings of  the both  the  Courts is that this happened at the spur  of  the moment without pre-meditation and in the heat of the passion and, therefore, at best the appellant could be convicted for an  offence  under s. 304 Part II because in  these  circum- stances no intention of causing death could be attributed to the appellant and since he has already served for more  than 7  years of sentence, no useful purpose would be  served  by sending him to serve a short period of sentence.     On behalf of the respondent-State, it was contended that there  was some previous trouble between the  parties  which furnish  some motive and this opportunity was taken to  seek vengeance. Allowing the Appeal,     HELD: 1. The conviction of the appellant is altered from one  under  s.  302 to s. 304 Part I I.P.C.  and  since  the appellant  has already served out more than 7 years,  he  is sentenced to sentence already undergone. [909C]     2.  The  plea of right of private defence taken  by  the accused persons including the appellant has not been accept- ed by the Courts below. Both the Courts below have  rejected the story that it was not the appellant but another  accused who wiped out a knife and inflicted the injury on Sheroo and that first injury was caused on Maruti. There is no evidence to  indicate that there was any material sufficient to  come to  the  conclusion  that it was Maruti  who  was  assaulted first.  On  the contrary the consistent  evidence  indicated that  on  arrival of Sheroo it was Maruti  who  started  the verbal exchange and in view of this evidence, the submission that the injury was inflicated on Sheroo in the exercise  of right of private defence cannot be accepted. [906H; 907A-B]     3.  The Trial Court was right in concluding that  "some- thing  provocative seems to have happened". It  is  apparent that the prosecution witnesses did not say or give out  what words were spoken. The only inference could be that if those words were given out, it would have damaged the  prosecution case. [908B-C]     4.  On the arrival of the complainants’ party  some  hot exchange began. Words were spoken, the witnesses have  cate- gorically stated that 903 they  were speaking loudly and still  prosecution  witnesses have  chosen  to give excuse for not speaking out  words  by saying that they could not hear those words and this clearly goes  to  show that the words used by the deceased  and  his friends were such which caused provocation. Both the  Courts came to the conclusion that there was no pre-meditation.  It was at the spur of the moment and in the heat of passion and it is also not disputed that only one blow was inflicted  by the  present  appellant  and the  injury  ultimately  caused proved to be fatal. [908C-E]     5.  The  story of some earlier trouble  and  the  motive suggested  by the prosecution has not been accepted by  both the  Courts below and it is also clear that there was not  a pre-arranged  plan.  Admittedly it was by  chance  that  the party  of  Sheroo  also chose to go to the  same  spot  i.e. hand-cart  of  Badshah at that odd hour at night  where  the appellant and his friends had already reached. It is not  as if  seeing  the  deceased Sheroo and his  friends  that  the appellant  and his friends reached. On the contrary,  Sheroo and  his friends arrived later. In this view of the  matter,

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both the Courts were right in coming to the conclusion  that hot  exchange  of filthy language resulted in some  kind  of provocation  in  the heat of passion  without  premeditation this injury was inflicted and in the circumstances it  could not be held that it was inflicted with an intention to cause death.  The only intention which could be attributed to  the appellant  in  the circumstances of this case  could  be  to cause such bodily injury as is likely to cause death. Conse- quently,  the appellant could only be convicted for  an  of- fence under s. 304 Part I. [908G-H; 909A-B]

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  8 of 1978.     From the Judgment and Order dated the 17.10.1977 of  the Bombay High Court in Criminal Appeal No. 1007 of 1974. Rajinder Singh and A.K. Srivastava for the Appellant. M.N. Shroff for the Respondent. The Judgment of the Court was delivered by     OZA, J. This appeal has been filed after obtaining leave from  this  Court against the conviction  of  the  appellant under Sec. 302 and sentence of imprisonment for life record- ed  by Additional Sessions Judge Greater Bombay in  Sessions Case  No. 204/73 and maintained on appeal by High  Court  of Bombay by its judgment dated 17th Oct., 1977. 904     The  prosecution case at the trial was that on the  mid- night intervening between 25th/26th July, 1972 the appellant alongwith others went to traffic island near Bandra, situat- ed  on  Linking  Road where Badshah Umarbax  was  doing  the business of vending eatables from his hand cart kept in that island.  The eatables included heavy non-vegetarian  items-. Badshah,   P.W.  4  was  assisted  in  his  trade   by   his brother-in-law Sadatali, P.W. 5 and some other servants.  It is  alleged  that the appellant alongwith  his  friends  had reached there to celebrate the victory of Carom game of  the Carom  Club  run by accused No. 1 and on reaching  near  the cart  accused Nos. 1 and 4 placed order for meat  and  other preparations.     As  the  dishes were getting ready the  deceased  Sheroo Lala  came there, driving his red Fiat Car MRT 566.  By  his side  was  his relation Ahmedkhan, who, though  cited  as  a witness,  was not examined at the trial, as it was  reported that  he was not available. In the back seat  sat  Chutkhan, P.W. 2 and Alikhan, P.W. 3. It appears that Chutkan and Kala Topi met in a hotel in Khar and while they were  conversing, Sheroo Lala came there together with Alikhan in the Car from Santacruz  side. After gossipping for sometime  Sheroo  Lala proposed  to go to Badshah’s hand cart on Linking Road,  for taking food. That is how all of them arrived near the  Bads- hah’s  hand  cart where the appellant and  his  friends  had reached  earlier.  This car went and stopped very  near  the hand  cart. The other cars which brought the  appellant  and his friends earlier were parked there. It was at 11.45  p.m. and there were two petromax lights burning on the hand cart. There  were  also  some street lights. It  is  alleged  that Sheroo Lala got down from his car and proceeded for  placing the  order and just as he did so he was stopped  by  Maruti, one of the accused persons who addressed him in a loud tone. This  was followed by heated exchange of words and  suddenly the present appellant-accused No. 1 in the courts below  who was behind Maruti came forward with an open Rampun knife and inflicted  a stab wound in the stomach of Sheroo. The  other

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accused also assaulted Sheroo Lala with a stick on the head. The  other persons who were tried, it is alleged  were  also there.  It  is alleged that in the meantime  Chutkhan,  Kala Topi  and Ahmedkhan had come near the spot where Sheroo  was stabbed  and  Sheroo keeping his hand on the  injury  walked towards  the  north and ultimately fell down in  a  pool  of blood collected on the spot. Chutkan, Kala Topi and  Ahmedk- han,  it is alleged, got down from the car probably to  meet the assailants but just then Maruti who was accused No. 3 in the  courts below, picked up a Sun from Badshah’s hand  cart and aimed a blow at Chutkan but Chutkan grappled with it and got hurt near the thumb on the palm of 905 his right hand. Another blow was aimed by Maruti, but it was warded  of by Chutkhan and it is alleged that at  that  time accused No. 4 gave a blow with a bamboo on the right hand of Chutkhan and accused No. 7 gave a blow on Ahmedkhan with  an iron  bar.  Ahmedkhan fell down and sometime later  he  went away  himself. It is alleged that when this  was  happening, Kala  Topi  removed a bamboo, from  Badshah’s  handcart  and started flourishing it in defence. The other also were doing something to defend themselves. According to the prosecution in this exchange some injuries were inflicted but so far  as the  present appeal is concerned, we are not concerned  with it as we are concerned with only the appellant Ramesh Laxman Pardeshi.     Chutkhan  and  Kala Topi, in the  meantime,  managed  to board a taxi and went to K.E.M. Hospital for treatment. They reached the Hospital at 1.50 A.M. At about 1.20 A.M. accused No. 3, who was having a bleeding injury on the head, visited the Bandra Police Station alongwith accused No. 4 to lodge a complaint against Sheroo and his companions. S.I Patl,  P.W. 17,  who  was  on duty at the Bandra  Police  Station,  sent Maruti to Podar Hospital alongwith form for medical examina- tion in the car of Subhash, another accused person.     Dr.  Parandekar,  P.W.  15 who was  attached  to  K.E.M. Hospital  at the relevant time as Casualty  Medical  Officer examined Kala Topi and Chutkhan whereas Dr. Muzavar, P.W. 13 examined  Maruti at Podar Hospital. In the meanwhile  Police Constable Sawant, P.W. 10, who was on patrol duty that night came  across the injured Sheroo on the street north  of  the traffic  island, mortally wounded. The  constable  therefore arranged for his removal to K.E.M. Hospital where he reached at about 2.20 A.M. and informed at 2.45 S.I. Patil of Bandra Police  Station about this. Dr. Parandekar  examined  Sheroo Lala  at 2.20 A.M. as an unknown person. His general  condi- tion  was  poor and found an incised injury on  his  person. There was another C.L.W. on the left frontal region. He  was admitted  in the ward and one Dr. Aggarwal, P.W. 9  examined him at 2.25 A.M. and found him dead.     S.I.  Patil received a telephone call at 2.45 A.M.  sent by  the  police Constable Sawant, P.W. 10. He  went  to  the Hospital immediately and made enquiries but could not ascer- tain the name of Sheroo. He learnt that two pathans  meaning thereby Chutkhan and Kala Topi were also in the Hospital. He contacted  them and questioned them. They were brought  down and  they identified Shetoo. The statements which  the  Sub- Inspector Patil recorded of Chutkhan is produced in the case F.I.R. Ex. 6. After investigation, a charge-sheet was 906 filed  and on trial the present appellant was convicted  for an offence under Sec. 302 and sentenced to imprisonment  for life  and  on appeal his conviction and  sentence  has  been maintained,  and  it  is because of this  that  the  present appeal has been filed.

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   Learned  counsel  appearing for the appellant  made  two submissions:) i) that Maruti one of the accused persons  had a contused lacerated wound on the head on the right  occipi- tal  parietal  region.  The defence version  was  that  when exchange  started  between Shetoo and Maruti, it  was  first that  Maruti  was assaulted and then in  the  exchange,  one another  accused  took out a knife and gave a  blow  to  the deceased  and thus plea of the accused was that this  injury was inflicted on Sheroo in the exercise of right of  private defence.  Alternatively  it  was submitted  by  the  learned counsel  appearing for the appellant that both  the  courts, the Sessions Court and the High Court came to the conclusion that as soon as Sheroo and his party arrived near the  hand- cart  of Badshah, there was a hot exchange between  the  two sides.  The witnesses examined by the prosecution  have  not clearly  stated what words were uttered and it  was  pointed out by learned counsel by reference to the Sessions  Court’s judgment  that the learned Judge felt that the language  was obscene  and probably the witnesses did not like to  mention whereas the High Court felt that the witnesses were not in a position  to  mention the exact words but it  was  contended that both the courts did reach a conclusion that there was a hot exchange between the two groups. It was contended there- fore  in such a situation it could not be doubted  that  the party  of  the accused was provoked and on  such  grave  and sudden provocation at the heat of the moment, this appellant who was carrying a knife took it out and inflicted only  one blow. It was contended that he did not even attempt a second blow  and the finding of both the courts is that  this  hap- pened  at the spur of the moment without pre-meditation  and in  the heat of passion. In these circumstances it was  con- tended that at best the appellant could be convicted for  an offence  under Sec. 304 Part II. He has served more  than  7 years of sentence already and being an incident of 1972,  no useful purpose would be served by sending this appellant  to serve a short period of sentence.     As  regards  the first question about right  of  private defence,  the stand taken by the accused  persons  including the  present appellant has not been accepted by  the  courts below.  An attempt was made to suggest that it was  not  the present appellant but another accused who wiped out a  knife and  inflicted the injury on Sheroo and in that  context  it was  also suggested that first injury was caused  on  Meruti but both 907 the courts below rejected that story and the learned counsel could  not refer to any particular part of the  evidence  to indicate  that there was any material sufficient to come  to the  conclusion that it was Maruti who was assaulted  first. On  the contrary the consistent evidence indicated  that  on arrival  of  Sheroo  it was Maruti who  started  the  verbal exchange  and in view of this evidence, in our opinion,  the first  submission made by the learned counsel could  not  be accepted.     As  regards the second contention the High Court in  its judgment  stated  "no doubt whatsoever that the  words  must have been kept back by these witnesses because they were too vulgar and too convincing to be uttered by the witnesses  in court."     It  was also contended that if it were the accused  per- sons who uttered vulgar words which might have caused insult or annoyance or provocation to the witnesses they would  not have  hesitated in saying what was said to them by  the  ac- cused  persons but the witnesses chose not to say the  exact words as it was their party itself which started this vulgar

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verbal  talk  which  provoked  the  accused-appellant.   The learned  Judges of the High Court while examining this  con- tention observed "when they did not uttar these words, there was every liklihood of Sheroo having uttered these words  to provoke the accused. Even assuming that Sheroo had  provoked by using such words accused No. 1 had no business to  thrust a Rampuri knife inside the stomach of Shetoo in exchange  of words."  Similarly  learned Sessions Judge  ultimately  held "but suddenly in the heat of passion, accused No. 1 may have thought of taking out in his hand and inflicted the  injury" and therefore learned Judge found that other accused persons could not be imputed with the intention of causing death. As regards  the words uttered during the exchange  the  learned Judge  observed after referring to the relevant portions  of evidence of witnesses" one cannot but feel that the witness- es  are deliberately not speaking of it. Something  provoca- tive  seems to have happened but they want to keep  it  away from the court, on that ground that evidence. given by these witnesses  will have to be examined with suspicion and  cau- tion."     It  is  therefore clear that both the courts  the  trial court  and  the High Court were of the view that  the  words spoken in the hot exchange between the two groups have  been suppressed  by the prosecution witnesses. The  learned  Ses- sions  Judge felt that the words were such which might  have caused  provocation and it is only because of this that  the prosecution  witnesses are trying to keep back these  words. Learned  counsel  for the appellant contended  that  if  the provocative 908 words  were  used by the accused  persons,  the  prosecution witnesses may not have kept it back but the only reason  for the  prosecution  witnesses not to say what were  the  words spoken,  appears to be what the learned Sessions Judge  felt when he observed what has been quoted above. It appears that this  contention of the learned counsel appears to  be  cor- rect.  The learned Judge was right in reaching this  conclu- sion  as it is apparent that the prosecution  witnesses  did not say or gave out what words were spoken, the only  infer- ence  could be that if those words were given out, it  would have  damaged  the prosecution case.  The  learned  Sessions Judge  felt that "something provocative seems to  have  hap- pened."     We are therefore left with no option but to look to  the incident that on the arrival of the complainants’ party some hot  exchange began. Words were spoken, the  witnesses  have categorically  stated  that they were  speaking  loudly  and still  prosecution witnesses have chosen to give excuse  for not  speaking  out the words by saying that they  could  not hear  those  words and this clearly goes to  show  that  the words  used by the deceased and his friends were such  which caused  provocation. Both the courts came to the  conclusion that there was no pre-meditation. It was at the spur of  the moment and in the heat of passion and it is also not disput- ed that only one blow was inflicted by the present appellant and the injury ultimately caused proved tobe fatal.  Learned counsel  referred to series of decisions of this  Court  and contended  that in such a situation when  under  provocation without  pre-meditation and in the heat of passion,  on  the spur of moment one injury is inflicted, it could not be said that the accused had the intention of causing death and this is  what has been propounded in number of decisions of  this Court.     Learned  counsel for the State, on the other hand,  con- tended  that  there was some previous  trouble  between  the

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parties  and that furnish some motive and on that  basis  an attempt was made to contend that this opportunity was  taken to  seek vengeance. This story of some earlier  trouble  and the motive suggested by the prosecution has not been accept- ed by both the courts below and it is also clear that  there was  not  a pre-arranged plan. Admittedly it was  by  chance that  the party of Sheroo also chose to go to the same  spot i.e.  hand-cart of Badshah at that odd hour at  night  where the appellant and his friends had already reached. It is not as  if seeing the deceased Sheroo and his friends  that  the appellant  and his friends reached. On the  contrary  Sheroo and  his friends arrived later. In this view of  the  matter both the courts were fight in coming to the conclusion  that hot exchange of 909 filthy language resulted in some kind of provocation and  in the  heat of passion without pre-meditation this injury  was inflicted and in the circumstances it could not be held that it was inflicted with an intention to cause death. The  only intention which could be attributed to the appellant in  the circumstances  of  this case could be to cause  such  bodily injury as is likely to cause death. Consequently the  appel- lant  could only be convicted for an offence under Sec.  304 Part I but as the appellant has already served out more than 7 years, in our opinion, the sentence already undergone will meet  the ends of justice. The appeal is therefore  allowed, the  conviction of the appellant is altered from  one  under sec.  302 to Sec. 304 Part I and sentenced to  sentence  al- ready undergone. If the appellant is in custody, he shall be set at liberty forthwith. A.P.J.                                          Appeal   al- lowed. 910