LAVGHANBHAI DEVJIBHAI VASAVAversusTHE STATE OF GUJARAT

674                      [2018]REPORTS
               SUPREME COURT    1 S.C.R. 674               [2018] 1 S.C.R.


A                  LAVGHANBHAI DEVJIBHAI VASAVA
                                       v.
                          THE STATE OF GUJARAT
                       (Criminal Appeal No. 253 of 2018)
B                             JANUARY 10, 2018
               [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
             Penal Code, 1860 – s.302 – Conviction under – If justified –
      Deceased died during treatment after being hit by appellant-accused
      (deceased’s husband), when an altercation took place between them
C
      in connection with preparation of food – Appellant convicted by
      trial court u/s.302 – Conviction upheld by High Court – Held: It is
      the case of prosecution itself that the incident took place in the
      spur of moment – Delay in preparing lunch by the deceased was
      the reason of the sudden altercation when the appellant picked up
D     a wooden object and hit the deceased – It is also an admitted case
      of prosecution that only one single blow was inflicted – Medical
      evidence shows that not much force was used in inflicting the blow
      to the deceased – Prosecution did not set up any case suggesting
      that relationship between the deceased and the appellant was not
      cordial – Thus, it was an offence which would be covered by s.304
E
      Part-II and not s.302 – While maintaining the culpability of the
      appellant, his conviction altered to s.304 Part-II instead of s.302 –
      Appellant has already served 9 years and 3 months of imprisonment
      approximately – In the facts of the case, sentence of appellant
      reduced to the period already undergone and he be released
F     forthwith, if not wanted in any other case.
             Penal Code, 1860 – ss.302, 304 – Parameters to be taken
      into consideration while deciding the question as to whether a case
      falls u/s.302 or u/s.304 – Discussed.
             Partly allowing the appeal, the Court
G           HELD: 1. The prosecution case itself proceeded 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
H
                                     674
   LAVGHANBHAI DEVJIBHAI VASAVA v. THE STATE OF                          675
                    GUJARAT

about delay in cooking lunch. On this, altercation took place            A
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 deceased took place 10 days
                                                                         B
after the said incident while she was undergoing treatment at
Hospital. This is the case of the prosecution itself. [Para 7] [677-
E-G]
       2. 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, are the following: (a) The circumstances in          C
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;          D
(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. [Para 8] [677-H; 678-A-D]
      3. The case of the appellant would fall under Section 304          E
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 had not set up any case
suggesting that relationship between the the husband and wife            F
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.
Therefore, it was an offence which would be covered by Section
304 Part-II IPC and not 302 IPC. [Para 9] [678-D-F]                      G
      Dhirendra Kumar v. State of Uttarakhand (2015) 3
      SCALE 30 – relied on.
                       Case Law Reference
(2015) 3 SCALE 30               relied on               Para 8
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676            SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 253 of 2018
            From the Judgment and Order dated 29.09.2015 by the High Court
      of Gujarat at Ahmedabad in Criminal Appeal No. 978 of 2011.
            Dr. Sushil Balwada, Jai Wadhwa, Sandiv Kalia, Advs. for the
B     Appellant.
            Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Mamta Singh, Ms.
      Shodhika Sharma, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            A. K. SIKRI, J. 1. Leave granted.
C           2. We have heard learned counsel for the parties at this stage.
             3. 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
D     and sentence has been upheld by the High Court vide impugned judgment
      dated 29.09.2015.
             4. 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
E     into one under Section 304 IPC. The matter has been considered focusing
      on this aspect. We may now recapitulate the facts in brief.
             5. 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
F     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
G     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
H     has been hit with leg of a cot on her head and she was bleeding. Therefore,
    LAVGHANBHAI DEVJIBHAI VASAVA v. THE STATE OF                                677
             GUJARAT [A. K. SIKRI, J.]

she immediately went to the house of the deceased. At that time, deceased       A
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.
                                                                                B
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        C
from Bharuch for further treatment. Thus, under such circumstances,
the original complainant Shantaben lodged a complaint before the police.
       6. 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       D
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.
        7. We have perused the evidence in this behalf. We find that the        E
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             F
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               G
undergoing treatment at Baroda Hospital. This is the case of the
prosecution itself.
        8. This Court in the case of Dhirendra Kumar versus 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    H
678             SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A     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;
B
              (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;
C             (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.
             9. Keeping in view the aforesaid factors it becomes evident that
D     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
E
      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.
F
             10. 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
G     to the period already undergone. Ordered accordingly.
            11. The appellant shall be released forthwith, if not wanted in any
      other case.


      Divya Pandey                                           Appeal partly allowed.
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