Madhya Pradesh High Court
Mubarik @ Bhaiyu vs The State Of Madhya Pradesh on 21 December, 2021
Author: Vivek Rusia
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T H E H I G H C O U R T O F MAD H YA PRAD E S H
B E N C H AT I N D O R E
[DIVISION BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH, JJ.]
Criminal Appeal No.607/2013
[email protected] Bhaiyu S/o Salim,
Age-20 years, R/O- Ojhakhali (house of Nabibhai),Ratlam
District-Ratlam (M.P.)
.........Appellant
Versus
State of M.P.
Through Police Station Manak Chowk,
Ratlam (M.P.)
............Respondent
• Shri Sanjay Kumar Sharma, learned counsel for the appellant.
• Ms. Mamta Shandilya, learned Govt. Advocate for the
respondent/State.
JUDGMENT
(Heard on 10/12/2021)
(Delivered on 21/12/2021)
PER VIVEK RUSIA, J:-
The appellant has filed the present appeal against the judgment
dated 22.03.2013 passed by learned 3rd Additional Session Judge,
Ratlam in S.T. No.169/2011 whereby co-accused [email protected] Wiring has
been acquitted and this present appellant has been convicted as
below:-
Section Punishment Fine amount In default
302 of the I.P.C. Life Imprisonment Rs.1,000/- 3 months R.I.
294 of the I.P.C. - Rs.1,000/- -
2. Facts of the case, in short, is as under: -
(i) On 19.03.2011 Abdul Rashid lodged a report at police station
Manak Chowk that he is having a flour mill (Atta chakki) at
Ojhakhali. Near about 3:45 p.m. [email protected] Bhaiyu S/o Salim came
to his shop and started filling water in one water gun (Pichkari) from
the drinking water pot. Abdul Rashid objected to it for which the
appellant has started abusing him by filthy language and gave a blow
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by iron rod on his head and Abdul has started bleeding. Afzal and
Kasim came to his rescue and the appellant left the place by
threatening him that next time he would be alive. The FIR was
lodged under sections 323, 294 and 506 of the IPC against the
appellant.
(ii) Abdul Rashid went to the hospital for treatment where he died.
Dr. Mahesh Morya, MOCH, Govt. Hospital, Ratlam sent information
to the effect that Abdul Rashid aged 62 years expired on 19.03.2011
at 8:20 p.m. during the treatment. The body is lying in the
postmortem room. The said information was recorded in Roznamcha
No.1539 under section 174 of the Cr.P.C. The Investigating Officer
reached to the hospital and drew a Naksha Panchayatnama in
presence of five witnesses. The death was found to be homicidal in
nature therefore, he sent a request letter for conducting an autopsy.
Dr. Nirmal Jain, P.W.-12 has conducted the autopsy and opined that
the cause of death is due to Neurogenic shock resulting due to head
injuries. Police started investigation under section 302 of the IPC,
reached the spot and prepared a spot map recorded the statement of
Afzal. This appellant was arrested and on his disclosure iron rod was
seized. After completing the investigation police has filed the charge
sheet against the appellant and other co-accused [email protected] Wiring. The
trial was committed to the session court. The Appellant and other co-
accused person denied the charges. The prosecution has examined 16
witnesses as P.W.-1 to P.W.-16 and got exhibited 25 documents as
D.W.-1 to D.W.-25 The appellant examined himself and denied the
charges and pleaded for false implication. After evaluating the
evidence came on record vide judgment dated 22.03.2013 learned
court has acquitted [email protected] Wiring but convicted the appellant as
stated above. Hence, the present appeal before this court.
3. Shri Sharma, learned counsel for the appellant has argued
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criticizing the judgment of conviction passed by the learned 3 rd
Additional Sessions Judge, Ratlam on various grounds but after an
argument at length he has confined his prayer for the conversion of
section 302 of the IPC to section 304 (Part-II) of the IPC. Shri
Sharma submits that the offence was committed because of a sudden
provocation and heat of passion. The deceased himself lodged an FIR
disclosing that this appellant was filling one water gun (Pichkari)
from drinking water pot to which he objected and thereafter the
appellant has started abusing him by filthy language and gave a
blow by iron rod lying there. It is submitted that it is not a case that
the appellant went to the shop of the deceased with an iron rod in his
hand intending to kill him. It was a case of a single injury. Since the
injuries were superficial, therefore, initially FIR was registered under
sections 323 of the IPC only and but later on the injured died due to a
fracture on his head therefore there was no intention to kill him
hence, it is a fit case for conviction under section 304 (Part-II) of the
IPC and liable to be converted for a period of 10 years he has already
undergone.
4. Learned Govt. Advocate opposes the aforesaid prayer but
submits that it is not a case of the prosecution that the appellant
reached to the shop of the deceased an intention to kill. The dispute
arose all of a sudden. Kashiv Shah, P.W.-10, Abdul Kadir, P.W.-8 and
Mohammad Rafiq, P.W.-5 have supported the case of the
prosecution, hence the appeal is liable to be dismissed.
We have heard learned counsel for the parties and perused the
record.
5. Since the appellant has confined his arguments to the extent
that it is not the case of murder but it is culpable homicide not
amounting to murder and the appellant is liable to be convicted under
section 304(P-II) of the IPC. It is correct that FIR was lodged by the
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deceased himself stating that he was in his flour mill (Atta chakki) at
Ojhakhali. Near about 3:45 p.m. [email protected] Bhaiyu S/o Salim came
to his shop and started filling water in one water gun (Pichkari) from
the drinking water pot. He objected to it for which the appellant has
started abusing him with filthy language and gave a blow by iron rod
on his head and started bleeding. Abdul and Kasim came to his
rescue and Bhaiyu left the place by threatening him. There is no
allegation that the appellant came with an intention and he was
carrying a water gun (Pichkari) in his hand. He took out an iron rod
lying on the floor and gave a single blow on the head of the deceased
and at that time the deceased was fit and he himself went to the
police station to lodge an FIR. In the FIR he did not allege that the
appellant gave a blow on the head with an intention to kill. However,
while leaving the shop he has threatened the deceased that next time
he would not leave him alive, for that, he has been discharged under
section 506 of the IPC.
We find support from the judgment passed by the Apex Court
in the case of Lavghanbhai Vs. State of Gujrat reported in (2018) 2
SCC (Cri) 461 has laid down the parameters which are to be taken
into consideration while deciding the question as to whether the case
falls under sec 302 or sec.304 Part II of IPC .
This Court in the case of Dhirendra Kumar versus State of Uttarak-
hand [ 2015 (3) SCALE 30] has laid down 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, which 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;
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(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.
Keeping in view the aforesaid factors it becomes evident that 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 pre-
paring lunch by the deceased. The appellant picked up a wooden ob-
ject and hit the deceased. The medical evidence shows that not much
force was used in inflicting blow to the deceased. The prosecution has
not set up any case suggesting that relationship between the husband
and wife was not cordial,otherwise. Manifestly, the incident took
place due to sudden provocation and in a heat of passion the appel-
lant had struck a blow on his wife, without taking any undue advan-
tage. We are, therefore, of the opinion that it was an offence which
would be covered by Section 304 Part-II IPC and not 302 IPC.
(6) Taking into overall circumstances into consideration of the
matter, we are of the opinion that the act committed by the appellant
will fall within the ambit of section 304 Part-II of I.P.C. Hence he is
liable to be convicted under section 304 part-II instead of section 302
I.P.C. The conviction and fine under section 294 I.P.C. are hereby
upheld.
(7) In view of the above discussion, we pass the following order:
(i) Criminal Appeal filed by the appellant is allowed in
part.
(ii) The conviction of the appellant under Section 302
of I.P.C is converted to Section 304 Part- II of I.P.C.
and he is sentenced to the period of imprisonment
already undergone.
(iii) The judgment dated 22.03.2013 passed by 3 rd
Additional Sessions Judge, Ratlam, in Session Trial
No.169/2011 is modified accordingly. The conviction
and fine under section 294 I.P.C. is hereby upheld.
(iv) Appellant-accused be set at liberty, if not
required in any other case.
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The registry is directed to send back the Trial Court record
forthwith along with the copy of this judgment.
Certified copy as per Rules.
(VIVEK RUSIA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Ajit/-
AJIT Digitally signed by AJIT KAMALASANAN
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ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE,
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pseudonym=CFDFD9C36711CA738F527A5D61A1EE901C09EF29,
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NAN
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Date: 2021.12.21 18:40:59 +05'30'
