LexLAVGHANBHAI DEVJIBHAI VASAVA versus THE STATE OF GUJARAT
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A B C D E F G H 674 SUPREME COURT REPORTS [2018] 1 S.C.R. LAVGHANBHAI DEVJIBHAI VASAVA v. THE STATE OF GUJARAT (Criminal Appeal No. 253 of 2018) 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 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 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 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 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 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 674 [2018] 1 S.C.R. 674 A B C D E F G H 675 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 deceased took place 10 days 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 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. [Para 8] [677-H; 678-A-D] 3. 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 had 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. Therefore, it was an offence which would be covered by Section 304 Part-II IPC and not 302 IPC. [Para 9] [678-D-F] Dhirendra Kumar v. State of Uttarakhand (2015) 3 SCALE 30 – relied on. Case Law Reference (2015) 3 SCALE 30 relied on Para 8 LAVGHANBHAI DEVJIBHAI VASAVA v. THE STATE OF GUJARAT A B C D E F G H 676 SUPREME COURT REPORTS [2018] 1 S.C.R. 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
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