Penal Code, 1860 - S. 302 / 304 - incident took place due to sudden provocation and in a heat of passion the appellant had struck a blow on his wife, without taking any undue advantage - it was an offence which would be covered by Section 304 Part-II IPC and not 302 IPC.
JT 2018 (3) SC 65 : 2018 (3) SCALE 309 : (2018) 4 SCC 329
IN THE SUPREME COURT OF
INDIA
CRIMINAL APPELLATE JURISDICTION
[A.K. SIKRI] AND [ASHOK BHUSHAN] JJ.
JANUARY 10,2018
CRIMINAL APPEAL NO(S).253 OF 2018
(Arising
out of Special Leave Petition (Crl.) No(s). 8923/2017)
LAVGHANBHAI DEVJIBHAI
VASAVA APPELLANT(s)
VERSUS
THE STATE OF GUJARAT RESPONDENT(s)
For Petitioner(s) Dr. Sushil Balwada, AOR Mr. Jai Wadhwa, Adv. Mr. Sandiv Kalia, Adv.
For Respondent(s) Ms. Hemantika Wahi, AOR Ms. Jesal Wahi, Adv. Ms. Mamta Singh, Adv. Ms. Shodhika Sharma, Adv.
J U D G M E N T
A.K. SIKRI, J.
Leave granted.
We have heard learned counsel for the
parties at this stage.
The appellant herein has been
convicted by the Trial Court for an offence under Section 302 of the Indian
Penal Code, 1860 (IPC) and sentenced to undergo life imprisonment and pay a
fine of Rs.500/-, in default, to undergo simple imprisonment for three months.
This conviction and sentence has been upheld by the High Court vide impugned
judgment dated 29.09.2015.
In the Special Leave Petition filed by
the appellant against the said judgment, notice was issued on the limited
aspect as to whether the conviction under Section 302 IPC is justified or it should
be converted into one under Section 304 IPC. The matter has been considered
focusing on this aspect. We may now recapitulate the facts in brief.
According to the prosecution case,
original complainant of this case namely, Shantaben @ Dhaniben Somabhai, is the
mother of deceased Shakuben. She lodged a complaint before Nabipur Police on 15.03.2008
that her daughter deceased Shakuben was married to accused Lavghanbhai
Devjibhai Vasava in Fichwada village about eight years ago. Deceased Shakuben
and the accused had been living in Navinagri of Shahpura, the village of the
complainant, for about one year and maintaining themselves by doing labour
work. In the morning on the day of the incident, deceased Shakuben and her mother
Shantaben had gone for labour-work of weeding in the farm of Patel of the
village where crop of ladies' finger had been cultivated. They returned home at
about 1200 hrs. in noon for having their meal and her daughter went to her
house. When the complainant was at her house, Vishnu, aged 6 years, son of
deceased Shakuben came to her house and told that his mother has been hit with
leg of a cot on her head and she was bleeding. Therefore, she immediately went
to the house of the deceased. At that time, deceased Shakuben was lying near
hearth in the house in an unconscious state and a blood stained leg of cot was
lying there.
It was known from the people gathered
there that an altercation took place between the deceased and the accused in
connection with preparing food. As the accused got instigated, he hit leg of
cot on the head of the deceased and ran away. As the deceased was bleeding from
her head, Kaliben daughter of the complainant, Lalo Amir Vasava resident of her
street and Dinesh Kashibhai Vasava took deceased Shakuben to a hospital at
Bharuch in an auto rickshaw of Pravinbhai Gopalbhai, resident of the village.
The complainant returned to her house. Pravinbhai returned home with his
rickshaw in evening and told that the deceased has been sent to Vadodara from
Bharuch for further treatment. Thus, under such circumstances, the original
complainant Shantaben lodged a complaint before the police.
As aforesaid, on the conclusion of the
trial and after appreciating the oral and documentary evidence, the Trial Court
returned a finding of guilt against the appellant and convicted and sentenced
him under Section 302 IPC. As far as event/occurrence is concerned, that stands
proved and to that extent judgments of the courts below are without any
infirmity. As mentioned above, the only question is as to whether it was a case
for conviction under Section 302 IPC or 304 IPC.
We have perused the evidence in this
behalf. We find that the prosecution case itself proceeds that the incident
took place in the spur of moment. On 15.03.2008, when the deceased along with
her mother went for labour work in agricultural field and she returned home
around noon, she was preparing lunch in kitchen when, as per the prosecution
story, the appellant came to the house and questioned the deceased about delay
in cooking lunch. On this, altercation took place between the appellant and his
wife. At that stage, the appellant got furious and in a rush of moment, he
picked a wooden object lying near the place of incident and inflicted injury to
the deceased. It is also an admitted case of the prosecution that only one
single blow was inflicted. The death of Shakuben took place 10 days after the
said incident while she was undergoing treatment at Baroda Hospital. This is
the case of the prosecution itself.
This Court in the case of Dhirendra Kumar v. State of Uttarakhand, 2015 (3) SCALE 30 has laid down the parameters which are to be taken
into consideration while deciding the question as to whether a case falls under
Section 302 IPC or 304 IPC, which are the following:
(a) The circumstances in
which the incident took place;
(b) The nature of weapon used;
(c) Whether the
weapon was carried or was taken from the spot;
(d) Whether the assault was
aimed on vital part of body;
(e) The amount of the force used.
(f) Whether the deceased participated
in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether
there was any sudden provocation.
(i) Whether the attack was in the heat
of passion; and
(j) Whether the person inflicting the injury took any undue advantage
or acted in the cruel or unusual manner.
Keeping in view the aforesaid factors
it becomes evident that the case of the appellant would fall under Section 304
IPC as the incident took place due to a sudden altercation which was a result of
delay in preparing lunch by the deceased. The appellant picked up a wooden
object and hit the deceased. The medical evidence shows that not much force was
used in inflicting blow to the deceased. The prosecution has not set up any
case suggesting that relationship between the the husband and wife was not
cordial, otherwise. Manifestly, the incident took place due to sudden provocation
and in a heat of passion the appellant had struck a blow on his wife, without
taking any undue advantage. We are, therefore, of the opinion that it was an
offence which would be covered by Section 304 Part-II IPC and not 302 IPC.
This is appeal is, thus, partly
allowed. While maintaining the culpability of the appellant, his conviction is
altered to Section 304 Part-II IPC instead of Section 302 IPC. The appellant
has already served 9 years and 3 months of imprisonment approximately.
In the facts of this case, we are of
the opinion that the sentence of the appellant be reduced to the period already
undergone.
Ordered accordingly.
The appellant shall be released
forthwith, if not wanted in any other case.
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