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BOMBAY HC DEFINES THE FACTORS TO INVOKE EXCEPTION 4 UNDER SECTION 300 IPC

-Report by Nidhi Jha

It was in a recent case of RAMESH LASHA PALVA AND ANR Vs THE STATE OF MAHARASHTRA, the Bombay High Court held that sharing common intention with the prime offenders is a vital factor for the accused to be convicted for that particular offence. Bombay High Court also clarified that for invoking Exception 4 under Section 300 IPC there are certain conditions that need to be fulfilled.

FACTS

On 12th November 2014, 2nd Additional Sessions Judge, Thane convicted both Ramesh Lasha Palva and Kashinath Lasha Palva under Section 302 read with 34 of IPC with imprisonment for life and also imposed a fine of Rs 1,000/- each for the murder of Lahanu Jivya Palva (deceased).

There was enmity between the Appellants and the deceased pertaining to the landed property because of which fights happened between them on various occasions. On 3rd November 2010 at around 1:00 am Appellant 1 i.e Ramesh Palva called Lahanu Jivya Palva (deceased). After some time when Lahanu went towards him, Appellant 2 i.e Kashinath Lasha Palva came from behind and hit Lahanu with a ‘musal’ (wooden pestle) and ran away. After getting treated at various hospitals Lahanu Jivya Palva was declared dead on 14th November 2010 while undergoing treatment at Sudarshan Hospital.

APPELLANT’S CONTENTION

The Appellant’s advocate submitted that On 3rd November 2010, Ramesh had filed N.C Complaint against Lahanu and 2 others stating that Lahanu (deceased) was abusing the sister of the Appellants in presence of Dinesh (PW-5) and Jitendra (PW-7). Jitendra (PW-7), Dinesh (PW-5) and Lahanu (deceased) were beating Ramesh. Lahanu was under the influence of liquor and fell down from the raised platform in a gutter and sustained an injury to his head. She submitted that because Lahanu was already having a dispute over property with the Appellants, they registered the present crime against the Appellants.

It was submitted by the Appellant’s advocate that the Act of Appellant No. 2 falls under Exception 4 of Section 300 and so the conviction of both the appellant under Section 302 of I.P.C is not appropriate.

DEFENDANT’S CONTENTION

There were three eyewitnesses to the incident that took place on 3rd November 2010. Bharati, the wife of the deceased said that due to the previous enmity, Appellant No.1 called her husband and when Lahanu approached him, Appellant No.2 came from behind and hit him with the ‘ musal’ and he ran away. She clearly stated that Appellant No.1 did nothing in the entire incident.

COURT’S DECISION

The court observed that the wife of the deceased categorically stated and also evidence indicated that, Appellant No.1 did nothing to the deceased hence he didn’t share the same intention of assaulting the deceased with Appellant No. 2.

Evidence also indicated that the intention of Appellant No. 2 was not to murder Lahanu neither he took any undue advantage or acted in a cruel or unusual manner. Also, there was no evidence proving that Appellant No.2 has come to the defendant’s place with the wooden pestle ( musal) with the intention of murdering as that tool is available commonly in every household for the purpose of pounding and grinding.

The act of the Appellant therefore according to the Court falls under the purview of Exception 4 of Section 300 of IPC and as he had no intention to commit the murder of Lahanu, Section 304 (Part II) of IPC would be attracted. Therefore Ramesh is acquitted of the charges framed against him by giving him the benefit of doubt and Appellant No.2 Kashinath is acquitted of charges of murder and convicted under Section 304 (Part II) of IPC, and he is sentenced to suffer R.I. for 10 years and to pay a fine of Rs.25,000/-; in default of payment of fine to further suffer R.I. for 1 year. And as Appellant No.2 Kashinath Lasha Palva is in jail since 12th November 2010 and has completed his sentence of 10 years, so he also has been acquitted from jail immediately.

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