While taking the most forthright stand, the Bombay High Court has in a most laudable, learned, landmark and latest judgment titled Mittu @ Mithu Bholi Pareda vs State of Maharashtra in Criminal Appeal No. 79 of 2014 pronounced as recently as on September 27, 2022 in exercise of its criminal appellate jurisdiction observed that killing a person in his sleep hours after a fight would be a case of murder punishable under Section 302 of the IPC and not culpable homicide. This was held so while the Court refused to set aside the murder conviction of a truck cleaner. A Division Bench of Hon’ble Justice Revati Mohite Dere and Hon’ble Justice Sharmila Deshmukh after weighing all the facts and evidence before it in this remarkable judgment thus upheld the life sentence that was awarded to Mittu Pareda by a Sessions Court in 2013.
At the very outset, this most commendable judgment authored by Hon’ble Justice Sharmila U Deshmukh for herself and Hon’ble Justice Revati Mohite Dere sets the ball rolling by first and foremost putting forth in para 1 that, “The Appeal takes an exception to the judgment and order dated 31.07.2013 passed by the Learned Sessions Judge in Sessions Case No.103 of 2012. By the impugned judgment and order, the Appellant has been convicted and sentenced as under:
For the offence punishable under Section 302 of the Indian Penal Code to suffer imprisonment for life.”
To put things in perspective, the Bench then envisages in para 2 that, “Briefly stated the case of the prosecution is as under:
The deceased – Utpal Amrendra Chaudhari, and the Appellant – Mittu @ Mithu Bholi Pareda were known to each other. The Appellant was cleaner of a truck bearing No. MH-04-CP-5410 and the Appellant and Utpal (deceased) used to sleep in the said truck itself. On 15.08.2011, there was holiday on account of independence day and the truck was parked at Oshiwara Park at Link Road site; Utpal and the Appellant were together the entire day on 15.08.2011, and were consuming liquor throughout the day and in the night also. On 16.08.2011 at about 11:30 a.m., there was a quarrel between Utpal and the Appellant on the issue of mobile phone of Utpal, which was missing. As the mobile phone could not be found, Utpal informed PW-1 -Shivprasad Vikas Biswas, PW-2- Vijay Gangaram Bhagat @ Vijay Kaliya and PW-5-Complainant-Fakre Alam Anjuman Shaikh that the Appellant has taken his phone and was not returning it. PW-2- Vijay Kaliya and PW-5-Fakre Alam Anjuman Shaikh came near the truck and PW-5 Fakre Alam Anjuman Shaikh (Fakre Alam) gave a call on the mobile phone of Utpal and the phone was heard ringing from the cabin of the truck. Appellant was asked to open the cabin of the truck, but he stated that the keys are with the driver; Utpal, Appellant and PW-2 Vijay Kaliya went to the house of the truck-driver to get the keys, but PW-2 Vijay Kaliya and Utpal returned back as the Appellant picked up a quarrel with them on the way. Thereafter, PW-2 Vijay Kaliya and PW-5 Fakre Alam returned to the parking of auto rickshaw and Utpal went to the rear portion of the truck and slept therein. After sometime, the Appellant returned and went to the rear portion of the truck, where Utpal was already sleeping. At about 3:30 a.m. to 3:45 a.m. PW-2 Vijay Kaliya and PW-5 Fakre Alam heard shouts from the truck and rushed towards the said truck. PW-5 Fakre Alam climbed into the rear portion of the truck and saw the Appellant assaulting Utpal on his head, neck and chest with a wooden log. The Appellant, on seeing Fakre Alam, jumped from the truck and ran away; Utpal was unconscious and blood was oozing from his mouth, nose and eyes. PW-5 Fakre Alam and PW-2 Vijay Kaliya, immediately informed the incident to PW-1 – Shivprasad Vikas Biswas and also called the police. The police thereafter reached the spot and took Utpal to Cooper hospital in a police vehicle; FIR was registered by PW-5 Fakre Alam on 16.08.2011 at 8:45 a.m. vide CR No.384 of 2011 for the offence punishable under Section 307 of the Indian Penal Code (for short, “IPC”) against the Appellant; Utpal expired on 16.08.2011 at about 9:00 a.m. and offence of Section 307 was altered to one under Section 302 of the IPC, as against the Appellant.”
Needless to say, the Bench then observes in para 3 that, “As the offence was exclusively triable by the Court of Sessions, learned Metropolitan Magistrate committed the case to the Sessions Court, Greater Mumbai. Charge was framed against the Appellant, to which he pleaded not guilty and claimed to be tried.”
To be sure, the Bench then states in para 4 that, “The prosecution, in support of its case, examined in all 10 witnesses viz (I) PW-1- Shivprasad Vikas Biswas, to prove the inquest panchnama. He has also identified Article 01- pant of Utpal (deceased) (ii) PW-2 – Vijay Gangaram Bhagat @ Vijay Kaliya, friend of Utpal, who also identified Article 02- weapon of assault i.e. wooden block (iii) PW-3- Uttam Taruni Devnath, panch to the spot panchnama and seizure panchnama (iv) PW-4 – Vasant Pandurang Gaikwad,- Police Naik, who collected blood stained clothes of Utpal (deceased) (iv) PW5 Shaikh Fakre Alam – eye-witness and complainant (v) PW-6 Bandu Shamrao Bhosale, truck driver (vi) PW-7- Bharat Anant Shine- panch to Memorandum Panchnama of recovery of blood stained clothes at instance of Appellant (vii) PW-8- Dr. Khandu Ramu Burange, Doctor, who proved the Medico Legal Register entry of Utpal (deceased) (viii) PW-9 Prakash Atmaram Bane – Investigating Officer (ix) PW-10– Uttam Damodar Kadlag- Police Inspector, also an Investigating Officer.”
Quite ostensibly, the Bench then points out in para 5 that, “The case of the Appellant under Section 313 of Cr.P.C, was of denial and false implication.”
Quite forthrightly, the Bench then also pointed out in para 26 that, “Evidence of PW-2 and PW-5 reveals that after the quarrel about the mobile phone, the Appellant had gone to fetch the keys of the truck and Utpal had gone to sleep in the truck. Considering the fact that Appellant had assaulted Utpal while he was asleep, it is not a case of grave and sudden provocation so as to fall within the exception I to Section 300 of IPC. As far as reliance placed by the learned counsel appearing for the Appellant, on the judgment of Apex Court in the case of State of Rajasthan vs. Shera Ram Alias Vishnu Dutta (supra) is concerned, the facts of that case shows that the injuries which were inflicted was the result of hurling of stone and in that particular circumstance the Apex Court has held that the prosecution has failed to prove the case beyond reasonable doubt, that such an injury was sufficient in the ordinary course of caused to death. In our opinion, the facts of the present case, are completely different, inasmuch as Utpal was assaulted with a wooden block on the head, chest and neck which was sufficient to cause injury in the ordinary course of nature, and therefore, the citation relied by the Appellant is not applicable to the present case.”
It is worth noting that the Bench then observes in para 27 that, “Learned counsel for the Appellant has also relied upon judgment of the Apex Court in the case of Lavghanbhai Devjibhai Vasava Vs. State of Gujarat (supra); and Gurmukh Singh vs. State of Haryana (supra), which sets out the facts which are required to be taken into consideration while deciding the question as to whether the case falls under Section 302 or Section 304 Part-II of the IPC. The judgment of the Apex Court in the case of Lavghanbhai Devjibhai Vasava (supra) following the judgment in the case of Dhirendra Kumar vs State of Uttarakhand (supra) has reproduced the parameters laid down by the Apex Court in the case of Dhirendra Kumar (supra) in paragraph 7, which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, as under:
“(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 Utpal participated in the sudden fight;
(g) Whether there was 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.””
Most significantly, the Bench then minces no words to hold unequivocally in para 28 that, “Considering the evidence on record, and, applying the parameters set out in the aforesaid judgments of the Apex Court, we find that Utpal was not assaulted in the heat of passion; that the assault took place much after the quarrel between the Appellant and Utpal; that the Appellant assaulted Utpal when he was asleep; that there was an assault with force on the head, chest and neck of Utpal, which was sufficient to cause death; and, that there was no grave and sudden provocation to justify the reduction of the offence. In our opinion, the facts of the case do not warrant reduction of the offence from Section 302 to 304 Part-II.”
As a corollary, the Division Bench then further hastens to add in para 29 that, “Considering the aforesaid, we are of the opinion, that the prosecution has established the guilt of the Appellant beyond reasonable doubt by ocular evidence, which is duly corroborated by documentary evidence. We do not find any infirmity in the impugned judgment and order dated 31.07.2013 passed by the learned Sessions Court in Sessions Case No.103 of 2012 and accordingly, uphold the conviction and sentence imposed by the impugned judgment and order.”
Finally, the Division Bench then concludes by holding in para 30 that, “Accordingly, we pass the following order:
ORDER
The Criminal Appeal No.79 of 2014 is dismissed and disposed of accordingly.”
All told, we thus see that the Bombay High Court has made it indubitably clear that deadly assault on sleeping man after a fight is clearly not culpable homicide but murder! This is definitely because the act was committed after making premeditated plan and it did not occur in the midst of sudden fight! So, there can be no bona fide reason to differ with what the Bombay High Court has held so very clearly in this leading case. It thus merits no reiteration that all the courts must pay heed to what the Bombay High Court has held in this leading case! No denying it!
Sanjeev Sirohi