Holding

The appellant lacked intention to kill; the offence falls under Section 304 Part II IPC, not Section 302 IPC.

Summary

The appellant, Laxmichand, was involved in a quarrel with the deceased, Gyaniram Mahajan, who was intoxicated and refused to leave the appellant's house. The appellant dragged the deceased outside and struck him on the head with a spade, causing injuries that led to death after seven days. The appellant made several extra‑judicial confessions to witnesses and surrendered to the police, after which the spade was seized. The trial court acquitted him, but the High Court convicted him under Section 302 IPC for murder. On appeal, the Supreme Court held that the appellant had no intention to kill; the blow, though inflicted on a vital part, was not pre‑planned, and therefore the appropriate charge is culpable homicide not amounting to murder under Section 304 Part II IPC. The Court set aside the murder conviction, affirmed conviction under Section 304 Part II, and imposed a sentence of five years rigorous imprisonment with credit for time already served.

Issues considered

Whether the appellant had the requisite intention to kill, justifying conviction under Section 302 IPC.
Whether the evidence, including extra‑judicial confessions and eyewitness testimony, is sufficient to sustain a murder conviction.
Whether the appropriate charge is culpable homicide not amounting to murder under Section 304 Part II IPC.

Legislation cited

Code of Criminal Procedures. 209(a)
Indian Penal Code, 1860s. 302, s. 304(2)

Subjects

murderculpable homicide not amounting to murderintentionextra‑judicial confessioneyewitness testimonySection 302 IPCSection 304 Part II IPCsentencing

Judgment

[2011] 1 S.C.R. 124

A LAXMICHAND @ BALBUTYA
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 1643 of 2005)
JANUARY 06, 2011
B
[HARJIT SINGH BEDI, P. SATHASIVAM AND
CHADRAMAULI KR. PRASAD, JJ.]

Penal Code, 1860 - s.304 Part II and s.302 - Quarrel ~
c between parties - Victim, under the influence of liquor, refused
to leave the house of the accused - Accused dragged the
victim out of his house and also inflicted blow on his head with
a spade, resulting in his death seven days later - Conviction
u/s.302 by High Court setting aside the order of acquittal by
D trial court - On appeal, held: Accused had no intention to kill
the victim - However, blow was given on a vital part-Accused
convicted u/s. 304 Part II with five years of rigorous )__~

imprisonment - Evidence - Extra-judicial confession -
Witnesses - Sentence/Sentencing.
E
According to the prosecution, quarrel arose between
the parties. The victim, unqer the influence of liquor,
refused to le.~e the house of the appellant. The appellant
then dr~,gged the victim out of his h<?use and also
inflict~Cll blow on his head with a spade. The victim
F becljltTte unconscious and succumbed to his injuries
t
s~ven days later in the hospital. PW-3 and 4 witnessed
the incident. The appellant made an extra-judiciaf
confession to PW-2, who later lodged a report. He also
made the confessional statement to PW-7 and PW 8.
G Thereafter, the appellant surrendered himself at the police
station. PW-12, P.S.I. arrested the appellant and seized ~.
the spade. The appellant was charged for the offence
under Section 302 IPC. The Court of Sessions acquitted .
the accused. The High Court, however, convicted the '
H 124
LAXMICHAND @ BALBUTYA v. STATE OF 125
MAHARASHTA
appellant under Section 302 IPC. Therefore, the appellant A
filed the instant appeal.
Partly allowing the appeal, the Court
HELD: 1.1. From the evidence of the eyewitnesses,
PWs 3 and 4, the prosecution established that the quarrel B
was going on between the accused-appellant and the
deceased, and the deceased was under the influence of
liquor and he was adamant and refused to leave the
house of the accused which forced the accused to drag
him outside his house and also inflicted injuries with the C
spade. There is no reason to disbelieve the version of
PWs 3 and 4, in this regard. On per•Jsal of their evidence,
no material omission or contradiction is found to
disbelieve their version. [Para 5] [130-C-E]
D
1.2. The prosecution examined PW-2 who made a
complaint to the police. The accused made an extra-
judicial confession to PW-2. The perusal of the report
strengthened the evidence of PW-2 about the statement
said to have been made to him by the accused. It is also E
seen from the evidence of PW-12, P.S.I. that when he was
scribing the report, the accused arrived at the police
station with a spade and PW-12 arrested him and seized
the spade. The statement of PW-2 if considered along
with other materials, need not be rejected. The accused
F
also made a confessional statement to PW 7. PW 8 also
apprised the court about the admission of guilt by the
accused. Though there was no need to attach importance
to the statements of PWs 7 and 8, if all the materials are
'
considered together, it proves the case of the
prosecution that it was the accused who was responsible G
for the death of the deceased.(Paras 6 and 7) [130-F-H;
131-A-B]

1.3. An attempt was made to record the statement of
the deceased by the Special Executive Magistrate but H
126 SUPREME COURT REPORTS [2011] 1 S.C.R.

A that could not be done. The evidence of PW·1, the
Medical Officer supports the version of the prosecution.
He Issued a certificate that the Injured person was not
able to give any statement. When PW·1 was shown
spade at the time of examination in court, he opined that
B It would be possible that such injury could be caused
with spade. The High Court held that the medical report,
evidence of doctor and the statement of eye-witnesses
support the case of the prosecution. PW-9 who
conducted the post-mortem on the dead body of the
c deceased also found that the cause of death was head
injury, laceration of the brain matter, resulting into
neurogenic shock and peripheral circulatory failure. All
the said materials including oral and documentary
evidence clearly prove the case of the prosecution and
0 the conclusion arrived at by the High Court is concurred
with. [Para 8] [131-C-G]
A.
1.4. It is clear from the evidence of PWs 3 and 4 that
prior to the incident, there was a quarrel be.tween the
accused and the deceased inside the house of the
E accused, and the deceased consume-d liquor and was
adamant to lea_ve the house of the accused which
necessitated the accused to drag him out of his house
ar:d inasmuch as the deceased still refused to accede to
th_e request of the accused, he inflicted blow on the head t
F with the spade. The appellant pointed out that he had no
pre-plan or intention to kill the deceased and his main
worry was to get the deceased out of his house, who
consumed excessive liquor. Considering all these
aspects, particularly, the conduct of the deceased in not
G leaving the house of the accused, he dragged him out of
his house, put him on the road and assaulted him with a
spade, the accused has no intention to kill the deceased.· .
It is true that blow given by the accused on the deceased·
was at the vital part because of which he was
'H unconscious for seven days and ultimately succumbed
,. ..,... ..
~ ~ .... .............
LAXMICHAND @ BALBUTYA v. STATE OF 127
MAHARASHTRA .
to his Injuries. However, the accused had no Intention to A
commit the offence~ [Para 9] [132-A·E]
1.6. Considering all the matarlala and reasons, the
commission of offence attributed to the accused·
appellant would come under Section 304 Part II IPC. The 8
Incident had occurred In tho year ·1986 and the accused
had no Intention to klll th'e deceased but due to the
reasons and circumstances stated, the ends of justice
would be met by awarding sentence of rigorous
Imprisonment for five years. The accused Is entltled to C
have the benefit of deduction of the period already
undergone. [Para 10] [132-F-G]
CRIMINAL APPELLATE JURISDCTION: Criminal Appeal
No. 1643 of 2005. · ·
From the Judgment & Order dated 15.10.2004 of the High D
Court of Judicature at Bombay, Nagpur Bench in Criminal
Appeal No. 48 of 1990.
Sushil Karanjakar for the Appellant.
Shankar Chlllarge, Sanjay V. Kharde, and Asha G. Nair E
for the Respondent.
The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. This appeal Is filed by the
appellant-accused, who is in Jail, through Superintendent, F
Nagpur Central Prison, Nagpur under Section 2,of the Supreme
Court Enlargement of Criminal Appellate Jurisdiction Act
against the final order and judgment dated 15.10.2004 passed
by the High Court of Bombay, Nagpur Bench, Nagpur in
}- Criminal Appeal No. 48 of 1990 whereby the High Court G
allowed the appeal flied by the State and set aside the order
of acquittal passed by the Additional Sessions Judge, Gondia.
/

2. The prosecution case is as follows:
H
128 SUPREME COURT REPORTS [2011] 1 S.C.R.

A (a) On 10.08.1986, at about 3.00 p.m., there was a quarrel ~-
between Laxmichand @ Balbutya - the accused and :
Gyaniram Mahajan - the deceased, who was in drunken
state, at the house of the accused. The appellant-accused
asked Gyaniram to go home but he was not acceding to
B his request. The accused brought Gyaniram from his
house on the road by lifting him but he fell down. The
accused struck him with a spade on his head. As a result, . ~·
Gyaniram sustained injury on his head and had become
unconscious. The accused proceeded towards the house
c · of one Police Patel. While going there, he made
disclosure to some persons that he had killed Gyaniram ,
Mahajan. One Ghanshyam, who was in the employment of '
Fulchand and who had heard the utterances of the accused
to the above effect, informed Tejram (PW-2) wi"o was
sitting in the house of Fulchand that the appellant-accused
D .)...__
was telling that he had killed Gyaniram. Tejram went ;
towards the Gram Panchayat. The accused was coming ;
from the side of the house of Police Patel. He again made
similar utterances and informed Tejram that he had killed
Gyaniram and further asked him to scribe a report. Tejram
E
advised him to go to the police station.
(b) Tejram went to the police station and lodged an oral
report that he was informed by the accused that he had t
killed Gyaniram. The oral report was reduced into writing
F by P.S.I. Narkhede (PW-12) under Section 302 of the
Indian Penal Code. By the time, the accused reached there
alongwith spade, P.S.I. Narkhede (PW-12) arrested him
and seized the spade. Thereafter, he went to the spot and
noticed that Gyaniram was lying unconsciously. Spot ,
G panchnama was prepared and the samples of blood · -\
stained earth and plain earth were collected.
(c) Gyaniram was sent to the hospital in the cart of Primary
Health Centre, Tirora. The doctor examined him at 9.45
p.m. and found a lacerated wound on his fore head with
H underlying bony fractures into pieces. As Gyaniram was
LAX.MICHAND @ BALBUTYA v. STATE OF 129
MAHARASHTRA [P. SATHAS!VAM, J.]
_.,, unconsciousness, P.S.I. could not take his statement. On A
17.08.1986, A.S.I. Sahare received a message from Dr.
Jaiswal of K.T.S. Hospital, Gondia that Gyaniram .had
expired. On the same day itself the post mortem was
conducted.
B
(d) After the investigation, the charge sheet was sent to
the Court of J.M.F.C. Gondia. The J.M.F.C. committed the
case under Section 209(a) of the Code of Criminal
Procedure to the Court of Sessions for trial of the accused.
The charge for the offence under Section 302 l.P.C. was
framed against the accused. The Sessions Judge, c
Gondia, vide his judgment dated 29.07.1989, acquitted the
accused of the charges framed against him.
(e) Against the said judgment of acquittal, the State filed
,.--4. . an appeal before the High Court of Bombay, Nagpur D
Bench. The High Court, vide its judgment dated
15.10.2004, set aside the order of acquittal and convicted
the appellant-accused for offence punishable under
Section 302 l.P.C.
(f) Aggrieved by the judgment of the High Court, the E
appellant-accused has filed this appeal from Jail through
the Superintendent, Nagpur Central Prison, Nagpur before
-\ this Court.
'
3. Heard Mr. Sushi! Karanjakar, learned amicus curiae for F
the appellant and Mr. Shankar Chillarge, learned counsel for
the State.
4. As far as the incident and the involvement of the
f-- appellant-accused is concerned, the prosecution has mainly
relied on the evidence of Fattu Madavi (PW-3) and Mahadeo G
(PW-4) who are the two eye-witnesses. Apart from these two
eye-witnesses, the prosecution has also relied on extra-judicial
confession said to have been made by the accused to some
of the witnesses.
H
130 SUPREME COURT REPORTS [2011] 1 S.C.R.

A 5. It Is seen from the evidence of Fattu (PW-3) that the
accused gave a call to him and said that Gyanlram - the
deceased was under the influence of liquor and he was not
willing to leave his house. There was a quarrel between the
accused and the deceased at the house of the accused. At the
B time of quarrel, Mahadeo (PW-4), who was present In the
nearby house of Bhaurao Neware was witnessing the same. It
Is also seen from the evidence of Fattu (PW-3) and Mahadeo
·' (PW-4) that In the course of quarrel, the accused dragged
Gyanlrarn outside of his house and gave a stroke of spade on
c his head. From the evidence of PWs 3 & 4, the prosecution
has established that the quarrel was going on between the
accused and the deceased and the deceased was under the
Influence of liquor and he was adamant and refused to leave
the house of the accused which forced the accused to drag him
0 outside his house and also Inflicted Injuries with the spade. As
rightly observed by the High Court, there Is no reason to
disbelieve the version of eye-witnesses, PWs 3 & 4, iri this
regard. On perusal of their evidence, we found no material
· omission or contradiction to disbelieve their version. On the
E other hand, we agree with the conclusion arrived at by the High
Court as regard to the reliability of two eye-witnesses.
6. Apart from two eye-witnesses, the prosecution has
examined one Tejram as PW·2 who made a complaint to the
police. The accused has made an extra-judicial confession to
F him. Tejram (PW·2) Is the person who lodged the report (Ex.21).
The perusal of the above report strengthened the evidence of
Tejrani (PW-2) about the statement said to have been made
to him by the accused.
7. It is also seen from the evidence of Narkhede, P.S.I.
G (PW-12) that when he was scribing the report, the accused °'
arrived at the police station with a spade and immediately he
arrested him and seized the spade. Though no much
Importance needs to be given to the statement of Tejram (PW·
2) but If we consider the same along with other materials, there
H Is no reason to reject his version. Another person before whom
LAXMICHAND @ BALBUTYA v. STATE OF 131
MAHARASHTRA [P. SATHASIVAM, J.]
the accused has made a confesslonal statement Is Govardhan A
~ (PW-7). The accused had gone to his place and Informed him
about the Incident. In the same. way, one Udelal, who was
examined as PW-8, also apprised the Court about the
admission of gullt by the accused. Though the~r Is no need to
attach Importance to the statements of PWs 7 & 8, as observed B
earller, If we consider all the materlals together, It prove the
· case of the prosecution that It was the accused who was
i · responslbl~ for the death of Gyanlram-the deceased.
'
8. It was submitted that though the Injured was alive for
: seven days but no attempt was made to record his statement c
about the incident. It is seen from the evidence of Narkhede,
·' PSI (PW-12) that he was not allowed to record his statement
by the Doctors as the victim was not in a position to give the
statement. It is relevant to note that an attempt was made to
record his statement by the Special Executive Magistrate, that D
-~
' also could not be done. The evidence of Or. Arvind Manwatkar
(PW-1 ), Medical Officer attached to Primary Health Centre,
Tlrora also supports the version of the prosecution. He also
Issued a certificate (Ex.19) that the injured person was not able
to give any statement. When Dr. Arvind Manwatkar (PW-1) was E
shown spade at the time of examination in Court, he opined
that it wouia be possible that such Injury could be caused with
--t spade. As observed by the High Court, the medical report,
evidence of Doctor and the statement of eye-witnesses support
the case of the prosecution. Dr. Pradip Kumar Gujar (PW-9) F
who conducted the post-mortem on the dead body of Gyaniram
also found that the cause of death was head injury, laceration
of the brain matter, resulting into neurogenic shock and
peripheral circulatory failure. All the above materials including
:}-
oral and documentary evidence clearly prove the case of the G
prosecution and we agree with the conclusion arrived at by the
High Court.
9. Coming to the argument that instead of convicting the
accused for culpable homicide amounting to murder, his case
would fall In the category of culpable homicide not amounting H
132 SUPREME COURT REPORTS [2011] 1 S.C.R.

A to murder as even according to the prosecution one blow alone ¥-
was caused by the accused that too in a quarrel, we have
already pointed out and it is clear from the evidence of PWs 3
& 4 - eye-witnesses that prior to the incident, there was a
quarrel between the accused and the deceased inside the
B house of the accused and the deceased consumed liquor and
adamant not to leave the house of the accused which
necessitated the accused to drag him out of his house and ~
inasmuch as the deceased still refused to accede to the request
of the accused, he inflicted blow on the head with the spade.
c As pointed out by the appellant-accused, he had no pre-plan
or intention to kill the deceased and his main worry was to get
the deceased out of his house, who consumed excessive liquor.
Considering all these aspects, particularly, the conduct of the
deceased in not leaving the house of the accused, he dragged
him out of his house, put him on the road and assaulted him ~,
0
with a spade, we are of the view that the accused has no
intention to kill the deceased. It is true that blow given by the
accused on the deceased was at the vital part because of
which, re was unconscious for seven days and ultimately
succumbed to his injuries. However, as discussed earlier, the
E accused had no intention to commit the offence.
10. Considering all the materials and reasons, we feel that r.
the commission of pffence attributed to the accused-appellant
would come under Section 304 Part II Indian Penal Code.
F Taking note of the fact that the incident had occurred in the year
1986 and the accused had no intention to kill the deceased but
due to the reasons and circumstances stated above, we feel
that the ends of justice would be met by awarding sentence of
rigorous imprisonment for five years. The accused is entitled
G to have the benefit of deduction of the period already
undergone.
11. With the above modification, the appeal is allowed in
part.

H N.J. Appeal partly allowed.