Author: Himanshu Sharma, 1st year student at Amity University Rajasthan.
Citation: 2019 (5) SCC 224
Date of decision: 15th March 2019
Bench: R. Banumathi
Original copy: View
Statutes involved: Indian Penal Code
Background of case:
- In the given case “Nandlal” is the appellant and “The State of Maharashtra” is respondent.
- This appeal arises out of the judgement that was passed by the High court of Bombay on 26.08.2010 at Aurangabad bench in the criminal appeal no. 293 of 2008 and in this judgement the High court affirmed the conviction of the appellant under 302 of Indian Penal Code read with the Section 34 of IPC and the sentence of the life imprisonment imposed upon him, and in the same judgement accused no.2 & 3 Parshuram and his son Sanjay was acquitted by the High court respectively.
- Appellant-Nandlal and Dilip Waman Baviskar are close relatives, in 2005 Dilip constructed a common wall between his premises and the house of the appellant.
- And because Dilip incurred total expenses of the construction of the wall, he demanded half of the expense and that was refused by the appellant. This became the regular quarrels between the parties.
- On 16.05.2006 at 4:00 pm, there was an exchange of abuse between Dilip, his wife Sakhubai (PW-4) and the appellant.
- Ganesh (PW-5) son of Dilip called Gopichand Waman Baviskar (PW-1). Gopichand and his brother Lakhichand (deceased) who was physically disabled went to the house of Dilip and they tried to pacify the situation.
- In that process, Lakhichand had abused the appellant, being annoyed the appellant assaulted the Lakhichand with a stick on his back. On seeing the assault on his brother, Gopichand gave a stick blow on the head of the appellant. The appellant went away from the spot to his house and returned back along with Parshuram and his son Sanjay-accused no. 2 & 3 respectively.
- At that time, the appellant was armed with a Gupti while Parshuram was allegedly armed with ballam and Sanjay was armed with a stick. When Gopichand, Dilip and Lakhichand saw the appellant approaching towards them along with two other persons, having weapons in their hands, Dilip and Gopichand went at one side but because of physical disability, Lakhichand was not quick enough to move. The appellant attacked Lakhichand with gupti on his left armpit. Parshuram assaulted Lakhichand with ballam, while Sanjay assaulted him with a stick and because of this assault Lakhichand became unconscious there.
- The appellant and other persons ran away from the spot, and Lakhichand was declared dead in the government hospital.
- Upon the completion of investigation, appellant and two other accused were charged under section 302 of Indian Penal Code read with section 34 IPC.
Issue in question:
- The first issue is, whether the situation in this case falls under the sudden provocation or not.
- And weather the accused no.2 & no.3 had a common intention of murder.
- In the appeal, the High court held that only the appellant caused fatal injuries to the deceased with lethal weapons and the High court affirmed the conviction of the appellant and the sentence of life imprisonment imposed upon him.
- Insofar as accused No.2 & No.3, the High court held that accused no.2 and 3 came along with the appellant to the place of occurrence only in the later part of the incident and that there was no common intention to commit murder of the deceased and therefore, the High court acquitted accused no.2 and 3.
- In the result, this appeal is partly allowed and the conviction of the appellant under section 302 IPC is modified as conviction under section 304part ⅱ IPC and the appellant is sentenced to undergo imprisonment for twelve years.
- According to me when the blow was inflicted on the appellant by Gopichand in the first incident and thereafter, the appellant run away from the spot and went to his house and returned with gupti in his hands along with accused no.2 and 3, and therefore, it cannot be said to be a case of “sudden fight”.
- The appellant’s conduct in going to his house and bringing the gupti and attacking the deceased Lakhichand clearly shows that the occurrence was not in the heat of sudden fight and thus the offence was clearly a case of murder falling under section 302 of IPC and not falling under any of the exception.
- And court should also notice that the accused no.2 and 3 may fall under the case of murder because at the time when appellant return from his house in second incident with gupti the both accused are with him at that time, and they also armed with ballam and stick respectively and this shows the common intention within all of then of murder, and that’s why they should also be convicted under section 302 of IPC for murder.