SANGHARAJ BHOGAPPA KAMBLEversusSTATE OF MAHARASHTRA

                     [2010] 13 S.C.R. 376


A              SANGHARAJ BHOGAPPA KAMBLE
                                 V.
                   STATE OF MAHARASHTRA
                 (Criminal Appeal No. 24 of 2006)
                       OCTOBER 26, 2010
B
         [HARJIT SINGH BEDI AND CHANDRAMAULI
                     KR. PRASAD, JJ.]

        Penal Code, 1860:
c
       ss. 300 - Exception 4 and 304 (part 1) - Culpable
  homicide not amounting to murder - Punishment -
  Altercation between father and the drunken son - Son
  slapped the father whereupon son's friend intervened and was
0 stabbed to death by the son - Conviction of accused u/s 302
  affirmed by High Court - HELD: A perusal of the facts would
  reveal that the incident would fall under Exception 4 to s: 300
  - The accused. and deceased were neighbours and friends
  and in fact they appeared to have been drinking companions
E as well - The incident happened because the accused felt
  that the deceased should not come in the way of a quarrel
  that he had with his father, notwithstanding the fact that the
  father was only remonstrating with him as he was already
  drunk having taken excessive liquor - When the accused
  slapped his father, the deceased intervened which annoyed
F the accused and led him to cause one injury to the deceased
  - Therefore, the conditions for the applicability of Exception
  4 are clearly satisfied - It cannot be said with certainty that
  the accused intended to cause the very injury that he inflicted
  - In this view of the matter, conviction of the accused for the
G offence punishable u/s 302 is not made out - He is,
  accordingly, acquitted of that offence - However, he is
  convicted of the offence punishable uls 304 (part I) and
  sentenced to undergo five years RI.

H                               376
  SANGHARAJ BHOGAPPA KAMBLE v. STATE OF                   377
              MAHARASHTRA
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal             A
No. 24 of 2006.

    From the Judgment & Order dated 10.02.2005 of the High
Court of Judicature at Bombay in Criminal Appeal No. 384 of
1989.
                                                                 B
     Aparajit Singh, Sanjay V. Kharde, Asha Gopalan Nair for
the Respondent.

    The following order of the Court was delivered

                          ORDER                                  c
     1. This appeal by way of special leave exemplifies the
consequences of uncontrolled drinking and th.e dangers that go
with it.
                                                                 D
      2. On 5th November, 1988, the deceased had gone to his
duty at 8:00a.m. and returned at 7:30p.m. and after having
dinner with his family members was sitting in the. house
conversing with them. At that moment, the accused
accompanied by his friend, who was a neighbour and also a        E
friend of the deceased, came to the house of the deceased
and asked him to join him fora drink. The deceased, however,
replied that as he had already had his dinner he was not
inclined to take any liquor. The accused nevertheless insisted
that the deceased should at least come out of the house and
sit with them. The deceased agreed to this arrangement and       F
went out of the house and the accused, his friend and the
deceased sat outside· the complainant's house where the
accused and his friend then consumed liquor. It appears that
after short time the accused started talking in an incoherent
manner on which his father came out and seeing his condition     G
got annoyed and asked the accused to leave the place and to
stop drinking. This led to an exchange of hot words between
the accused and his father following which the accused slapped
his father and the father also slapped the accused. The
deceased intervened at that stage and asked the accused as       H
    378   SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A to why he was abusing his father and remonstrated with him
  on that account. The accused, however, turned on the deceased
  and told him that he was nobody to interfere in a dispute
  between him and his father and a quarrel ensued between the
  two. The father of the deceased also intervened in the quarrel
8 and tried to separate the.m but he was pushed aside. The
  accused then took out a knife from his pocket and stabbed the
  deceased in his chest causing him a serious injury leading to
  his death. While the quarrel was going on Leena, P.W.5, the
  sister of the deceased and several others also came to the
C spot. A case under Section 302 of the IPC was accordingly,
  registered against the accused and on completion of
  investigation he was put to trial. The trial court and the High
  Court have concurrently held that the case of the prosecution
  stood proved and that the accused was liable for the murder.
  He was, accordingly, awarded a life sentence.
D
        3. When this matter came up before this Court by way of
  special leave on the 12th August, 2005, notice was issued
  limited to the nature of the offence as also on the question of
  bail. Leave was granted thereafter on the 5th January, 2006,
E and having regard to the facts of the case and the question as
  to whether the offence would fall under Section 302 or Section
  304 Part I or Part II of the Indian Penal Code, bail was also
  granted to the accused on that day. The matter is before us for
  final disposal.
F
       4. We have perused the office report and see that Mr. V.8.
  Joshi, Advocate, who had filed this appeal has since passed
  away. Notice was issued to the accused to make alternative
  arrangements but it appears that despite service being
  complete he has not chosen to appear. In normal
G circumstances, we would have appointed an Amicucs Curiae
  but in the light of the fact that we intend to make an order in
  favour bf the ace.used, we find thatthis would not be necessary.

       5. In the light of what we have noticed above, the question
H that arises is as to the nature of the offence and whether the
  SANGHARAJ BHOGAPPA KAMBLE v. STATE OF                      379
              MAHARASHTRA
ca?e of the accused would fall under Section 302 or 304 Part         IA.
I or Part II thereof. A perusal of the facts already recapitulated
above would reveal that the incident herein would fall. under
Exception 4 to Section 300. Ex~ption 4 reads as under;
                                  '
           Exception 4 _ Culpable homidde is not murder if it
                                                                     8
     is committed without premeditation in a sudden fight in the
     heat of passion upon a sudden quarrel and without the
     offender having taken undue advantage or acted in a cruel
     or unusual manner."

     6. This exception postulates four conditions for its'' C
applicability (i) that it was a sudden fight; (2) that there was no
pre-meditation; (3) the act was done in a heat of passion and
(4) that the appellant had not taken any undue advantage or
acted in an unusual or cruel manner.
                                                                     D
     7. A perusal of the facts aboveementioned would indicate
that the accused and deceased were neighbours and friends
and in fact they appeared to have been drinking companions
as well. The incident happened because the accused felt that
the deceased should not come in the way of a quarrel that he E
had with his father, notwithstanding the fact that the father was
only remonstrating with him as he was already drunk having
taken excessive liquor. The only fault of the deceased was that
when the accused slapped his father, he intervened and told the
accused that he should behave which further annoyed him and
led him to cause one injury to the deceased. We, therefore, see F
that the conditions for the applicability of Exception 4 are clearly
satisfied.

      8. We have also perused the medical evidence and find
that there is effectively only one stab injury on the person of the G
deceased the others being abrasions which could have been
caused during the intervention in the quarrel between the father
and son. It cannot, therefore, be said with certainity that the
accused intended to cause the very injury that he inflicted.       •
                                                                     H
    380    SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A       9. In this view of the matter, we feel that the conviction of
    the accused for the offence under Section 302 of IPC is not
    made out. He is, accordingly, acquitted of that offence. We,
    however, convict him for the offence punishable under Section
    304 Part I of the IPC and sentence him to undergo rigorous
B   imprisonment for five years.

        10. With this modification in the judgment of the courts
    below, the appeal is dismissed.

    R.P.                                        Appeal dismissed.