Premchand vs The State Of Maharashtra

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.211 OF 2023

PREMCHAND … APPELLANT

VS.

THE STATE OF MAHARASHTRA …RESPONDENTS

JUDGMENT

DIPANKAR DATTA, J.

1. This appeal, by special leave, calls in question the judgment

and order dated 06th August, 2019 of the High Court of Judicature at

Bombay, Bench at Nagpur, whereby Criminal Appeal No 211 of 2016

carried by the appellant assailing his conviction under section 302, Signature Not Verified Digitally signed by NEETA SAPRA Date: 2023.03.03 Indian Penal Code, 1860 (for brevity ‘IPC’) and sentence of life 17:31:33 IST Reason:

imprisonment with a fine of Rs.6,000.00 and a default sentence of 2

one year as well as sentence of seven years of rigorous

imprisonment and fine of Rs.4,000.00 for the offence punishable

under section 307, IPC was dismissed.

2. The prosecution case was that Nandkishor Korde (for brevity

‘the victim’) was murdered on 26 th September, 2013 at around 5:00

pm by the appellant. The other three victims, namely Namdeo Korde

(P.W.2), Vilas Charde (P.W.3), and Kunal Babhulkar (P.W.4) received

stab injuries caused by a knife, also inflicted by the appellant. A

report was lodged soon thereafter by the mother of the victim

Rekhabai Korde, (P.W.1), leading to registration of an F.I.R. under

sections 302 and 307, IPC. The post-mortem report dated 27 th

September, 2013 (Ext.35) recorded “stab injury to neck” of the

victim as the probable cause of death.

3. Consequent to the registration of the F.I.R., Police Inspector

Bharat Thakre (P.W.8) took up the investigation, visited the spot of

the incident and prepared spot panchnama. He found the spot of the

incident stained with blood and recovered a blood-stained knife, a

wooden stick stained with blood, three pairs of chappals, two

spectacles, and a blue dot pen. P.W.8 arrested the appellant and

since he too had received injuries, he was referred to the Rural

Hospital, Katol for his medical examination.

3

4. Upon completion of the investigation, a charge sheet under

sections 302 and 307, IPC was filed before the concerned court

against the appellant. Upon committal, charges for the above-said

offences were framed to which the appellant pleaded not guilty and

claimed to be tried.

5. The prosecution examined 8 (eight) witnesses to support of its

case. None was examined on behalf of the defence. However, the

appellant filed a written statement, which we propose to refer to at

a later part of this judgment. The Additional Sessions Judge largely

relied on the statements of P.W.2, P.W.3, and P.W.4 to convict the

appellant. The Court concluded that the appellant committed the

murder of the victim with the knife (Art.1) and also attempted to

commit the murder of P.W.2, P.W.3 and P.W.4. The defence of the

appellant appeared to the Court to be false and the prosecution was

held to have proved its case beyond reasonable doubt. This was

followed by the convictions and sentences, noted above.

6. The aforesaid judgment having been challenged before the

High Court, the relevant Division Bench was of the view that the

findings did not warrant any interference and that the appeal was

devoid of any merit; hence, it was dismissed.

7. The first limb of the arguments advanced by learned counsel

for the appellant is that the courts below clearly erred in convicting 4

the appellant. According to him, the following points deserve

consideration:

a. Firstly, the courts below failed to appreciate that none of the

other persons present at the site of the occurrence, namely

Shankarrao Fartode, Umrao Charde, and Ramesh Korde (as

per the version of P.W.2) were examined as prosecution

witnesses. The courts ought to have inferred that had they

been produced they would not have supported the prosecution

case and, thus, were deliberately withheld. Non-examination of

such independent witnesses, therefore, should be held to be

fatal to the prosecution case.

b. Secondly, having regard to the age of the appellant (he was 58

years old on the date of the incident), it is quite improbable

that he could freely inflict stab injuries on the victim and the

others without anyone of the injured as well as the others

present at the site (Shankarrao Fartode, Umrao Charde, and

Ramesh Korde) even making an attempt to resist the appellant

from inflicting injuries as also to save anyone of the others.

c. Thirdly, it was necessary to establish, by examining these

independent witnesses, that it was the appellant who came

with the knife and holding it was on a stabbing spree resulting

in the death of the victim and injury to the others. 5

d. Fourthly, all eyewitnesses (P.W.2, P.W.3 and P.W.4) who

deposed against the appellant were interested witnesses and,

therefore, not credible and their testimony ought not to have

been relied upon.

e. Fifthly, the courts below failed to take note that P.W.2 and

P.W.3 were both interested witnesses and it was a clear case of

false implication by suppressing the original story of the actual

incident.

f. Sixthly, it is surprising that although P.W.4 claimed to have

snatched the knife from the appellant, there is no injury on his

hand; on the contrary, there is no explanation from the side of

the prosecution with regard to the six injuries suffered by the

appellant.

g. Seventhly, no motive could be established for the appellant to

assault the victim and P.W.2 as the dispute between the

parties arising out of unauthorized construction made by P.W.2

on the ground floor of the building of the appellant relates

back to the year 2003.

h. Seventhly, the knife was not recovered at the instance of the

appellant under section 27 of the Indian Evidence Act, 1872

but seizure has been shown to have been made at the site. 6

There being contradictory statements of P.W.2 and P.W.4, it is

unclear as to who introduced the knife in the scuffle.

i. Finally, the appellant was a permanent resident of Nagpur

whereas the place of the incident is Katol, a tehsil place

situated about 50 kms. from Nagpur. There could hardly be

any reason for the appellant to travel such distance and

murder the victim, and that too with a knife in broad daylight

and in the presence of a host of people.

8. The second limb of the arguments of learned counsel is that

even if it be assumed that death of the victim occasioned at the

hands of the appellant, as per the prosecution case the victim was

initially away from the place of incident and was the last to join the

scuffle. There was, thus, no premeditation on the part of the

appellant as such and the victim seems to have got injured

unintentionally in the scuffle between the appellant on the one side

and the victim, P.W.s 2, 3 and 4 on the other. Therefore, clearly, the

victim was not the target. He contended that conviction of the

appellant under section 302, IPC was erroneous on facts and in the

circumstances and that the evidence at best made out a case

punishable under section 304, Part II, IPC. The appellant has been

behind bars for nine years and it is only fair, just and proper that

this Court upon consideration of the materials on record directs his 7

release by converting the conviction from section 302, IPC to

section 304, Part II, IPC and sentencing him to the period already

spent in custody.

9. Learned counsel appearing for the State, on the other hand,

supported the judgment of conviction and order of sentence of the

Sessions Judge. He also submitted that the High Court took pains to

reappraise the evidence and finally concurred with the Sessions

Judge. No case having been set up by the appellant for interference,

he urged this Court to dismiss the appeal.

10. We have heard the parties, considered the evidence led by

them before the trial court and perused the judgment and order of

the trial court and the High Court.

11. Any detailed discussion of the oral evidence of the prosecution

witnesses is considered unnecessary in view of the “WRITTEN

STATEMENT” dated 31st March, 2016 (Ext.96) of the appellant

[Annexure ‘P-16’ to the paperbook], which was filed by him before

the trial court in his defence, in terms of sub-section (5) of section

313 Code of Criminal Procedure, 1973 (for brevity ‘Cr. P.C.). It is

also noted that while replying to Q. No.79 in course of examination

under section 313(1), the appellant had referred to such a

statement.

8

12. The gist of Ext. 96, to the extent relevant for the purpose of a

decision on this appeal, is that the appellant used to come to Katol

from Nagpur for collecting rent every 2-3 months; that the appellant

came to Katol on 26th September, 2013 for collecting rent; that while

the appellant was returning from a credit society after withdrawing

money and climbing the stairs of his house, the victim spit on him

and threatened him by saying “Aaj tere ko fitate hai, tera game

bajate hai”; that while the appellant was leaving his house, P.W.2

gave a signal to the victim and P.W.4 by saying “Ala re ala”; on

seeing the appellant, the victim took out a knife and P.W.4 took out

a ‘fighter’ belonging to P.W.3 and started beating him; that the

appellant could take the knife with both his hands and in the

meantime P.W.2 and P.W.3 came forward to beat the appellant; that

while the appellant tried to save himself, the victim and P.W.s 2 to 4

sustained injuries; that the appellant too suffered serious injuries on

the fingers of both his hands, knife wounds on his chest and injuries

on his chest and right shoulder having been beaten by a wooden

stick. Immediately after such incident, the appellant went to the

police station for lodging a complaint against his assailants but the

same was not received. He was made to wait in the police station till

10.00 pm without his injuries being treated. He also stated that 9

P.W.s 2, 3 and 4 had strained relations with him and that is the

reason why they tried to seriously injure him.

13. There is a plethora of judicial pronouncements on

consideration of section 313, Cr. P.C., a few of which need to be

noted at this stage.

14. A bench of three Hon’ble Judges of this Court in State of U.P.

vs Lakhmi1 has extensively dealt with the aspect of value or utility

of a statement under section 313, Cr. P.C. The object of section 313,

Cr. P.C. was explained by this Court in Sanatan Naskar vs. State

of West Bengal2. The rationale behind the requirement to comply

with section 313, Cr. P.C. was adverted to by this Court in Reena

Hazarika vs. State of Assam3. Close on the heels thereof, in

Parminder Kaur vs. State of Punjab4, this Court restated the

importance of section 313, Cr. P.C. upon noticing the view taken in

Reena Hazarika (supra) and M. Abbas vs. State of Kerala5.

15. What follows from these authorities may briefly be

summarized thus:

1 (1998) 4 SCC 336 2 (2010) 8 SCC 249 3 (2019) 13 SCC 289 4 (2020) 8 SCC 811 5 (2001) 10 SCC 103 10

a. section 313, Cr. P.C. [clause (b) of sub-section 1] is a

valuable safeguard in the trial process for the accused to establish

his innocence;

b. section 313, which is intended to ensure a direct dialogue

between the court and the accused, casts a mandatory duty on the

court to question the accused generally on the case for the purpose

of enabling him to personally explain any circumstances appearing

in the evidence against him;

c. when questioned, the accused may not admit his

involvement at all and choose to flatly deny or outrightly repudiate

whatever is put to him by the court;

d. the accused may even admit or own incriminating

circumstances adduced against him to adopt legally recognized

defences;

e. an accused can make a statement without fear of being

cross-examined by the prosecution or the latter having any right to

cross-examine him;

f. the explanations that an accused may furnish cannot be

considered in isolation but has to be considered in conjunction with

the evidence adduced by the prosecution and, therefore, no 11

conviction can be premised solely on the basis of the section 313

statement(s);

g. statements of the accused in course of examination under

section 313, since not on oath, do not constitute evidence under

section 3 of the Evidence Act, yet, the answers given are relevant

for finding the truth and examining the veracity of the prosecution

case;

h. statement(s) of the accused cannot be dissected to rely on

the inculpatory part and ignore the exculpatory part and has/have

to be read in the whole, inter alia, to test the authenticity of the

exculpatory nature of admission; and

i. if the accused takes a defence and proffers any alternate

version of events or interpretation, the court has to carefully

analyze and consider his statements;

j. any failure to consider the accused’s explanation of

incriminating circumstances, in a given case, may vitiate the trial

and/or endanger the conviction.

16. Bearing the above well-settled principles in mind, every

criminal court proceeding under clause (b) of sub-section (1) of

section 313 has to shoulder the onerous responsibility of scanning

the evidence after the prosecution closes its case, to trace the 12

incriminating circumstances in the evidence against the accused and

to prepare relevant questions to extend opportunity to the accused

to explain any such circumstance in the evidence that could be used

against him. Prior to the amendment of section 313 in 2009, the

courts alone had to perform this task. Instances of interference with

convictions by courts of appeal on the ground of failure of the trial

court to frame relevant questions and to put the same to the

accused were not rare. For toning up the criminal justice system and

ensuring a fair and speedy trial, with emphasis on cutting down

delays, the Parliament amended section 313 in 2009 and inserted

sub-section (5), thereby enabling the court to take the assistance of

the Public Prosecutor and Defence Counsel in preparing such

questions [the first part of sub-section (5)]. Ideally, with such

assistance (which has to be real and not sham to make the effort

effective and meaningful), one would tend to believe that the courts

probably are now better equipped to diligently prepare the relevant

questions, lest there be any infirmity. However, judicial experience

has shown that more often than not, the time and effort behind

such an exercise put in by the trial court does not achieve the

desired result. This is because either the accused elects to come

forward with evasive denials or answers questions with stereotypes

like ‘false’, ‘I don’t know’, ‘incorrect’, etc. Many a time, this does 13

more harm than good to the cause of the accused. For instance, if

facts within the special knowledge of the accused are not

satisfactorily explained, that could be a factor against the accused.

Though such factor by itself is not conclusive of guilt, it becomes

relevant while considering the totality of the circumstances. A

proper explanation of one’s conduct or a version different from the

prosecution version, without being obliged to face cross-

examination, could provide the necessary hint or clue for the court

to have a different perspective and solve the problem before it. The

exercise under section 313 instead of being ritualistic ought to be

realistic in the sense that it should be the means for securing the

ends of justice; instead of an aimless effort, the means towards the

end should be purposeful. Indeed, it is optional for the accused to

explain the circumstances put to him under section 313, but the

safeguard provided by it and the valuable right that it envisions, if

availed of or exercised, could prove decisive and have an effect on

the final outcome, which would in effect promote utility of the

exercise rather than its futility.

17. Once a written statement is filed by the accused under sub-

section (5) of section 313, Cr. P.C. and the court marks it as an

exhibit, such statement must be treated as part of the accused’s

statement under sub-section (1) read with sub-section (4) thereof. 14

In view of the latter sub-section, the written statement has to be

considered in the light of the evidence led by the prosecution to

appreciate the truthfulness or otherwise of such case and the

contents of such statement weighed with the probabilities of the

case either in favour of the accused or against him.

18. This is a case where it does not appear from the records that

the written statement (Ext. 96) engaged the attention of both the

trial court as well as the High Court. Applying the principles noted

above and for the reasons discussed below, there can be no quarrel

that non-consideration of Ext. 96, to a limited extent, in relation to

recording of conviction and consequently imposition of sentence,

has rendered it vulnerable to interference.

19. Ext. 96 refers to inculpatory admissions as well as seeks to

bring out exculpatory circumstances. The statement has to be read

in its entirety. The inculpatory admissions emerging from this

statement against the appellant are (i) his presence at the spot and

(ii) sustaining of injuries by the victim and the other prosecution

witnesses while the appellant, as claimed, was attempting to save

himself from getting injured. The exculpatory circumstances sought

to be established are (i) the appellant’s description of the act

complained of as involuntary, which was compelled by inevitable 15

circumstances and not guided by choice and, (ii) sustaining of injury

by him in the same transaction.

20. In view of the inculpatory admissions appearing from Ext.96,

the trial court, and the High Court while concurring with the trial

court, need not have laboured much to convict the appellant as the

person instrumental for the homicidal death of the victim by

discussing the evidence led in course of the trial in details. The

appellant’s presence at the spot and the victim and the injured

witnesses sustaining injury in course of the scuffle could be held to

have been established from Ext.96 itself. However, by not looking

into Ext. 96 with the other evidence on record, what the trial court

omitted to consider is, whether the prosecution was justified in

claiming that the offensive act amounted to culpable homicide

amounting to murder or whether the appellant being guilty of

culpable homicide not amounting to murder, deserved punishment

under section 304, Part II, IPC. True it is, the trial court considered

the arguments advanced on behalf of the appellant that (i) he had

“exercised his right of private defence”, and though (ii) “he

exceeded such right”, (iii) the present case at the most would fall

under section 304, Part II, IPC; but, it proceeded to overrule such

arguments by relying on the oral testimony of P.W.s 2 to 4. In the

process, the trial court failed to appreciate the defence version as 16

spelt out in Ext.96, which appears to us to be plausible. A senior

citizen who visits Katol from Nagpur, his place of residence, for

collecting rent, having the intention of murder would possibly not

attempt to do so in broad daylight and in the presence of witnesses,

and that too with a weapon such as a knife. Reading Ext.96 as it is,

we do find it probable that there could have been provocation at the

instance of the victim, who allegedly indulged in spitting on the

appellant coupled with verbal abuse, whereafter P.W.2 and later

P.W.s 3 and 4 sprang into action, resulting in a scuffle where both

parties indulged in inflicting injuries on each other resulting in an

unwanted loss of life.

21. Regrettably, pointed attention of the High Court does not

appear to have been drawn to Ext.96 by counsel on behalf of the

appellant, as a consequence whereof the Court went on to hold that

the “act could not be shown to have come in any of the exceptions

enumerated in Section 300 of IPC”, that “it is neither the result of

sudden provocation nor done in the heat of passion during quarrel”,

and that it had “no hesitation to hold that the death of Nandkishor

is culpable homicide amounting to murder”.

22. Be that as it may, we have no difficulty in proceeding to record

our conclusions resting on the evidence on record as well as Ext.96,

which the appellant voluntarily filed before the trial court as his 17

response to the incriminating materials appearing in the evidence

against him while being questioned under section 313, Cr. P.C, for

whatever it is worth. It appears to us to be a fair and proper

disclosure of the appellant’s version as to what transpired on that

fateful evening. The offensive act committed by the appellant has to

be appreciated in the surrounding circumstances noted below.

23. In the normal run of events, the victim as well as P.W.2 and

the appellant were not supposed to interact with each other on 26 th

September, 2013. P.W.2 opened the shop of the victim because the

victim had not returned from the field. If P.W.2 had not opened the

shop, the appellant would probably not have met him. It was by

chance that the appellant and P.W.2 met each other. The victim and

the appellant had no quarrel with each other; whatever was there, it

was between the appellant and P.W.2. The inter se quarrel between

the two had long subsided. There is a missing link in the prosecution

case as to the motive of the appellant to inflict the blow on P.W.2

first. It is in the evidence of P.W.2 that he was reading a newspaper

sitting in front of the shop of the victim and that the appellant was

sitting in the saloon of Baburao Sawarkar (not examined), which

was opposite to the shop of the victim. The appellant, as per P.W.2,

was unarmed initially. P.W.2’s further version was that the appellant

went to his house, fetched a knife and then stabbed P.W.2 on his left 18

shoulder, neck and left-hand finger resulting in serious bleeding

injuries. The reason why the appellant suddenly on seeing the

septuagenarian P.W.2 would go to his house and return with a knife

is not there in the evidence. We shall, for the present, assume that

there were heated exchanges and that the appellant gave a blow to

P.W.2 first, and thereafter to the others one by one. Then again, the

victim who, according to P.W.2, was supposed to be in the field but

appeared in the scene from some other place all on a sudden, was

the third in the series to be stabbed by the appellant and, thus, was

not his target. Though there is no specific admission by the

appellant that he had stabbed the victim or the other injured

witnesses, reading of the contents of Ext.96 does evince an act of

retaliation spurred by sudden provocation resulting in a quarrel as

well as a scuffle which ultimately, most unfortunately, cost the

victim his life and left some others injured. The appellant too

sustained injuries in the scuffle and there is evidence on record that

one of the injuries was grievous, yet, the criminal law was

surprisingly not set in motion to bring to book those responsible for

inflicting such injury. It was in a sudden quarrel, which could have

been provoked by the victim and P.W.2, that blows followed from

each side. Most importantly, the circumstances in which the incident

occurred does clearly negate any suggestion of premeditation in 19

mind. That apart, it cannot be overlooked that while the victim was

middle-aged, the appellant was in his late fifties. At the time of the

alleged incident, apart from P.W.s 2 and 3, Shankarrao Fartode,

Umrao Charde, Ramesh Korde (all three not examined) were

present at the spot, as per the version of P.W.2. It is indeed

improbable that in the presence of such persons, the appellant

wielding a weapon like a knife would come to the spot with an

intention to commit the offence of murder overpowering all of them

without any sufficient reason or provocation. In our opinion, the trial

court lacked in objectivity by not examining the facts and

circumstances as to whether the situation was such as is likely to

reasonably cause an apprehension in the mind of the appellant that

there was imminent danger to his body, of either death or grievous

hurt being caused to him, if he did not act in private defence. To

impute intention to cause death or the intention to cause that

particular injury, which proved fatal, in these circumstances seems

to be unreasonable.

24. Exception 4 to section 300, IPC ordains that culpable homicide

is not murder if it 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. The explanation thereto clarifies that it is 20

immaterial in such cases which party offers the provocation or

commits the first assault. Four requirements must be satisfied to

invoke this exception, viz. (i) it was a sudden fight; (ii) there was no

premeditation; (iii) the act was done in a heat of passion; and (iv)

the assailant had not taken any undue advantage or acted in a cruel

or unusual manner.

25. Taking an overall view of the matter, we are inclined to the

opinion that the appellant was entitled to the benefit of Exception 4

to section 300, IPC.

26. The upshot of the above discussion is that this is not a case

where the appellant could be convicted for murder of the victim. His

conviction for murder and sentence of life imprisonment are liable to

be set aside. It is ordered accordingly.

27. However, we think it proper to convict the appellant under

section 304, Part II, IPC. Since the appellant has suffered

imprisonment for more than nine years and he is presently in his

late sixties, we consider incarceration for such period as adequate

punishment. The appellant shall be released from custody forthwith,

unless required in connection with any other case. 21

28. Since the appellant has already served the sentence imposed

for commission of offence under section 307, IPC, based on a

conviction which is highly suspect, we allow it to rest.

29. The appeal stands allowed to the extent indicated above. No

costs.

30. Before parting, we observe that this is a case where the police

should have investigated the injuries suffered by the appellant too.

The appellant also did not pursue any available remedy to right the

wrong. However, in view of little less than a decade having passed

since the incident took place, any direction to investigate at this

distance of time may not yield any fruitful result. We, therefore,

refrain from issuing such direction.

………………………………..J (S. RAVINDRA BHAT)

New Delhi, ………………………………J 3rd March, 2023. (DIPANKAR DATTA) 22

ITEM NO.1501 COURT NO.14 SECTION II-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No. 211/2023 PREMCHAND Appellant(s) VERSUS THE STATE OF MAHARASHTRA Respondent(s)

([HEARD BY: HON. S. RAVINDRA BHAT AND HON. DIPANKAR DATTA, JJ.]...FOR ADMISSION and I.R. and IA No.184015/2019-EXEMPTION FROM FILING O.T.) Date : 03-03-2023 This matter was called on for pronouncement for judgment today.

For Appellant(s) Mr. Sudheer Voditel, Adv. Mr. Ravindra Bana, AOR Mr. Simanta Kumar, Adv. For Respondent(s)

UPON hearing the counsel the Court made the following O R D E R Hon’ble Mr. Justice Dipankar Datta pronounced the

reportable judgment of the Bench comprising Hon’ble Mr. Justice

S. Ravindra Bhat and His Lordship.

The operative portion of the reportable judgment reads as

under :

“26. The upshot of the above discussion is that this is not a case where the appellant could be convicted for murder of the victim. His conviction for murder and sentence of life imprisonment are liable to be set aside. It is ordered accordingly.

27. However, we think it proper to convict the appellant under section 304, Part II, IPC. 23

Since the appellant has suffered imprisonment for more than nine years and he is presently in his late sixties, we consider incarceration for such period as adequate punishment. The appellant shall be released from custody forthwith, unless required in connection with any other case.

28. Since the appellant has already served the sentence imposed for commission of offence under section 307, IPC, based on a conviction which is highly suspect, we allow it to rest.”

The appeal stands allowed in terms of the

signed reportable Judgment.

All pending applications are disposed of.

(NEETA SAPRA) (MATHEW ABRAHAM) COURT MASTER (SH) COURT MASTER (NSH)

(Signed reportable judgment is placed on the file)