Madhya Pradesh High Court
Satish vs The State Of Madhya Pradesh on 31 July, 2021
Author: Vivek Rusia
-1- CRA NO.24/12 & CRA No.186/12
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA &
HON'BLE SHRI JUSTICE SHAILENDRA SHUKLA
CRIMINAL APPEAL No.24/2012
Satish s/o Dhan Singh Kalal
vs.
State of M.P
CRIMINAL APPEAL No.186/2012
Dropati w/o late Bharat Singh
vs.
Dhansingh s/o Banshailal & two others
******
Shri Lokesh Bhatnagar, learned counsel for the appellant in
CRA No.24/2012.
Shri Apoorv Joshi, learned counsel for the appellant in CRA
No.186/2012.
Shri Amit Singh Sisodiya, learned Govt. Advocate for the
State.
JUDGMENT
(Delivered on 31.07.2021)
Per Vivek Rusia, J:
Criminal Appeal No.24/2012 has been filed by appellant Satish
against the judgment dated 30.11.2011 whereby he has been convicted
under section 302 of the IPC and sentenced to undergo life
imprisonment with fine of Rs.5000 and in default of payment of fine 2
years additional R.I in sessions trial no.96/2011 passed by Addl.
Sessions Judge, Narsinghgarh, district Rajgarh.
2. By the aforesaid judgment co-accused Dhansingh and
Ayodhyabai have been acquitted u/s 302/34 of the IPC, therefore, the
complainant Dropati w/o late Bharatsingh has filed the Criminal
Appeal No.186/12.
3. As per prosecution story on 27.01.2011 near about 12 a.m Pawan
PW/1, grandfather Bhawarlal and grand uncle Ramdayal were on
agricultural field. Late Bharat Singh was sprinkling water through a
motor fitted in the well (Kundi). At that time another grand uncle
Dhan Singh i.e. father of the appellant Satish came there and started
pulling the connecting wire from the motor. Bharat Singh ran towards
-2- CRA NO.24/12 & CRA No.186/12
him and told not to pull the electricity wire, then the appellant Satish
and his mother Smt. Ayodhyabai also came there. Bharat Singh was
caught by Dhansingh and Ayodhyabai and appellant Satish went to
store and took an axe in his hand and gave a blow on the right side of
the head due to which Bharat Singh started bleeding. His family
members took him to the Government hospital, Pachor on a
motorcycle where he died. Information was immediately sent to the
police station by Pawan which was registered in the Dehati Nalishi at
2/24 on 27.01.2011 vide Ex.P/1 by Pawan. The police reached to the
Government hospital and prepared a Naksha Panchayatnama Ex.P/3.
The dead body was sent for postmortem and as per PM report an
incised wound of 3 x 1/2 x 1 x 2 ½ inch with clotted blood over the
temporal region and facture of temporal bone of scull with laceration
of brain was found and as per the opinion of medical officer the cause
of death was shock due to aforesaid injury (Ex.P/2). The police
reached to the spot and seized blood-stained earth. The spot map vide
Ex.P/8 was prepared and thereafter FIR was registered against Satish,
Dhansingh and Ayodhyabai u/s 302, 34 of the IPC Ex.P/9. The
appellant was arrested on 01.02.2011 Ex.P/15, Dhansingh was arrested
on 01.02.2011 vide Ex.P/14 and Ayodhyabai was arrested on 28.1.2011
vide Ex.P/16. On the disclosure of Rameshsingh an axe with blood
stains was recovered from his house at 2.40 p.m vide Ex.P/6. The
blood stained clothes and axe were sent to the FSL vide Ex.P/17. As
per the FSL report dated 30.06.2011 human blood and soil of the spot
were found on the clothes of the deceased Bharatsingh. The blood
stains on axe were found inconclusive. The police recorded the
statements of Pawan, Sarita, Dropatibai, Ramdayal & Suresh u/s 161
Cr.p.C and after completing the investigation filed the charge sheet on
24.4.2011.
4. The trial was committed to the Sessions Court and the charge u/s
302 & 34 IPC were framed against all the three accused. They abjured
not guilty and pleaded for trial.
5. In order to establish the charges, the prosecution was called upon
to give evidence before the trial Court. The prosecution examined as
many as 13 witnesses and got exhibited 18 documentary evidences. In
-3- CRA NO.24/12 & CRA No.186/12
defence the accused examined Rahul as DW/1, Arvind as DW/2 and
got exhibited 5 documents vide Ex.D/1 to D/5.
6. After appreciating the evidence came on record, learned Addl.
Sessions Judge has held that deceased Bharat Singh died due to the
sole injury on the temporal region of the head. The death was
homicidal caused by Satish. Since there was no overt act on the part of
Dhan Singh and Ayodhya bai, hence they have been acquitted from the
charge of 302/34 IPC. The appellant Satish has been convicted u/s 302
IPC and sentenced as mentioned herein above. Being aggrieved by the
conviction and sentence, the appellant Satish has filed criminal appeal
No.24/12 & the wife of the deceased Dropati has filed criminal appeal
no.186/12 after the leave granted by this Court challenging the
acquittal of Dhan Singh and Ayodhyabai.
7. Shri Bhatnagar, learned counsel for the appellant Satish submitted
that the appellant has been convicted on the basis of evidence of all the
related witnesses Pawan PW/1, Dropati PW/3, Ravi PW/9 &
Ramdayal PW/4. They all are relative witnesses whose presence on the
spot is doubtful. Pawan was studying in a local govt. school and that
time he was supposed to be in the school but on the basis of his
testimony the appellant Satish has been convicted. He further
submitted that there was a previous enmity between the family of
appellant and the family of Bharat Singh in respect of taking of water
pump from the well. There was no intention to cause any death.
Bharat Singh was sprinkling water through a motor fitted in a well.
Dhan Singh tried to pull the connecting wire from the motor. Bharat
Singh ran towards him and the appellant thought that he would hurt
Dhan Singh, therefore, he ran towards Bharat Singh and accidentally
he sustained injury on the head and died. There was not motive,
common intention or pre-meditation mind to cause such injury,
therefore, if it is held that Bhart Singh died due to the injury caused by
the appellant Satish then at the most it would a culpable homicide not
amounting to murder u/s 304 Part-I of the IPC. He is in jail since the
date of arrest and has completed 10 years incarnation, therefore, the
period of life sentence be reduced to the period already undergone,
hence prayed for acquittal of the present appellant.
-4- CRA NO.24/12 & CRA No.186/12
8. Shri Amit Singh Sisodiya, learned Government Advocate
appearing for the State has argued in support of the impugned
judgment by submitting that there is no reason to disbelieve the
testimony of Pawan who was witnessed the entire incident. He further
submitted that the defence could not establish that at the time of
offence P.W.-1 was in the school. The appellant could have examined
the school staff or called the attendance register to establish that at the
time of alleged incident Pawan was in the school. Even otherwise,
Dropati PW/3, Ravi PW/9 & Ramdayal PW/4 were also on the spot
and witnessed the entire incident. The appellant gave a blow on the
temporal region of the head with full force by an axe with intention to
hill. The injury due to which Bharat Singh died was not only incised
wound but there was a fracture on the bone and brain, hence the
appellant caused the injury with intention to commit murder of his
uncle Bharat Singh, therefore, even if it is a case of single blow it
would fall u/s 302 of the IPC and no interference is called for.
However, the State has not preferred any cross appeal against the
acquittal of Dhan Singh and Ayodhya bai.
9. Shri Apoorva Joshi, learned counsel appearing for the appellant in
criminal appeal No.186/12 submitted that the learned trail court has
wrongly acquitted Dhan Singh and Ayodhyabai. All the witnesses
have stated before the court that they caught hold Bharat Singh and
Satish gave an axe blow with full force on the left side of head of
Bharat Singh . When the evidence of PW/1, PW/3, PW/4 & PW/9 have
been believed for convicting Satish then the same evidence ought to
have been believed or accepted for conviction of Dhan Singh and
Ayodhya bai. Had they not caught Bharat Singh he would have saved
himself from the blow given by Satish or the impact would have been
reduced, therefore, there was an active association by them and they
are liable to be punished u/s 302/34 IPC. There was a common
intention among all the 3 accused and they met on the spot in
furtherance of the common intention, hence their acquittal is liable to
be set aside and they are also liable to be convicted u/s 302/34 IPC.
We have heard learned counsel for the parties and perused the
record.
-5- CRA NO.24/12 & CRA No.186/12
10. As per the testimony of PW/1 Pawan who was aged 15 years at
the time of incident on 27.1.2011, his father was sprinkling water
through the motor fitted in the well. Along with him his sister Sarita,
grandfather Bhawarlal and grand uncle Ramdayal were also there. All
the 3 accused came on the spot. Satish was grinding the axe and
saying that today he would finish him. Dhansingh snatched the
connecting wire from the motor. His father objected it then
Ayodhyabai and Dhan Singh caught hold him and Satish gave a blow
by axe on his head and ran away. His father called him and said that
Satish had assaulted by an axe. His father started bleeding. With the
help of other villagers he took him to the hospital where was declared
dead. He was cross examined by the defence counsel in order to
establish that at the time of incident he was in the school, but could not
succeed. But there is lots of improvement in his testimony before the
court Likewise, PW/2 Sarita, the daughter of the deceased was also on
the spot and supported the case of prosecution. PW/3 Dropatibai, wife
of the deceased has supported the case of the prosecution. Although
there is small variation in their statement and there is an exaggeration
of the narration of story but in sum and substance they are supporting
the case of the prosecution to establish that Satish gave a blow on the
head of deceased due to which he died. The prosecution has examined
Ramdayal who is elder brother of deceased Bharatsingh and according
to him he was also present on the spot and witnessed the entire
incident. Minor omissions and contradictions are liable to be ignored.
Banesingh PW/5 has been examined to prove the recovery of axe from
the house of Satish. Bhagwan Singh PW/6 has confirmed that when he
reached the spot Bharat Singh was lying in the field and bleeding from
the injury on his head. The prosecution has examined another son of
the deceased Ravi as PW/9 who was aged about 18 years. He came
from the school at 2 p.m and his sister has informed that Satish has
caused axe blow on the head of his father and she has also told that
Ayodhyabai and Dhansingh have caught hold him. PW/10 Ghasiram
Asstt. Sub Inspector who has recorded the Dehati Nalishi and Sitaram
PW/11 Head Constable has recorded the FIR against 3 accused
persons.
-6- CRA NO.24/12 & CRA No.186/12
11. The evidence of Dr.P.N.Shakir who was deputed as Medical
Officer in Primary Health Centre, Pachor on the date of incident has
been examined as PW/12 and according to him he conducted the
postmortem of deceased Bharat Singh and the deceased died due to
shock because of the fracture and laceration on the temporal region.
There was an incised wound of 3.5 x 1 x 2.5 inch, fracture on the
temporal bone and laceration in the brain and in the cross examination
he has clarified that the injury was starting from upper and caused
standing on one side.
12. The Investigating Officer Virendra Singh Chouhan has been
examined as PW/13. In defence all the 3 accused have denied all the
suggestions and finally stated that Pawan was not on the spot and other
witnesses have given false evidence. In defence they examined Rahul
who was also studying in the school of Pawan. He has been examined
in respect of timing of the school. According to him Pawan was in the
school at 11.30 a.m. According to Arvind DW/2 accused Dhansingh
purchased the land from Dalchand Gupta and there was a civil dispute
in respect of sale of the land. Dhansingh was also interested to
purchase the said land and there was dispute between them.
13. So far the cause of death is concerned it is established from the
statement of the doctor PW/12 that the size of the incised wound was
3.5 x 1 x 2.5 inch on the temporal region of the head. The temporal
bone was found fractured and brain was lacerated, therefore, the injury
by axe was caused with full force on the vital part of the body,
therefore, it cannot be said that there was no intention to commit the
murder of Bharat Singh by Satish. From the disclosure of Satish an
axe was recovered which was used in the commission of the offence,
even if the defence has tried to establish that Pawan was not present
on the spot and he was in the school, therefore, the trial court has not
committed any error in convicting the appellant Satish.
14. Learned counsel for the appellant has placed reliance over the
judgment passed by the Apex Court in the case of Ananta Kamliya vs.
State of West Bengal reported in 2020 (1) Supreme 55 in which
conviction u/s 302 IPC was converted into 304 Part-I of the IPC and
sentenced to undergo imprisonment for 10 years in a case of death
-7- CRA NO.24/12 & CRA No.186/12
because of the injury caused by the accused on the head. As per the
facts of the case accused was not carrying a weapon with him. He took
out a lathi which was lying there and caused injury on the head of the
deceased. Accordingly, there does not appear any intention on the part
of the accused to cause very injury which ultimately led to the death of
deceased. There does not appear to be any pre-mediation or intention
to kill the deceased. The death resulted due to the injury in qura, hence
the case would fall under the exception 4 to section 300. Learned
counsel has also placed reliance over the judgment passed in the case
of Ambalal Sarabhai Enterprise Ltd. vs. Ks Infraspace Llp Ltd.
and another 2020 (1) Supreme 57. Because of the sudden fight and
absence of pre-meditation, the act committed on the heat of passion the
conviction u/s 302 IPC has been converted into 304 Part-II IPC,
section 300 exception-4 by the Apex Court. In the case of
Smt.Sandhya Jhadav vs. State of Maharashtra - 2006 AIR SCW
1678 the offence has been converted u/s 304 Part-II of the IPC instead
of section 302 IPC because of the solitary blow causing death after
considering the factual situation. Likewise, in the case of Shambhoo
Singh vs. State of Rajasthan- AIR 2008 SC 3200 again due to the
sudden quarrel incident taken place out of the land dispute the
conviction of the accused for murder has been altered to conviction u/s
304 Part-I IPC. Learned counsel has also placed reliance over the
judgment passed by the Division Bench of this Court in Antulal vs.
State of M.P, Cri. Appeal No.1466/2010 decided on 3.8.2019 in
which by placing the reliance over the judgment passed by the Apex
Court in the case of Arjun vs. State of Chhatisgarh- 2017 3 SCC
247, the conviction has been altered from 302 to 304 Part-I IPC.
15. It is correct that to some extend the aforesaid judgments support
the appellant Satish because there was no pre-meditation to commit
this offence. According to PW/1, PW/3, PW/4 & PW/9 Bharat Singh
was giving water in the field through motor fitted in the well. Dhan
Singh went there and pulled out the wire from the machine. Bharat
Singh ran towards him and objected. Satish saw Bharat Singh
approaching to Dhan Singh and thought that he would hurt Bharat
Singh . Satish and Ayodhyabai reached there. There is a contradiction
-8- CRA NO.24/12 & CRA No.186/12
that Satish was carrying an axe in his hand and gave a blow on the
head of Bharatsingh but in the 161 statement P.W.-1 has stated that
Bharat singh was caught by Dhansingh and Ayodhyabai and Satish
brought the axe from the Nehare (a small hut in the agricultural field)
and gave a blow. Likewise, Sarita in her 161 statement also Ex.P/2 has
stated that Satish brought a Kulhadi from Nehare. Ramdayal in
Ex.P/4 has stated that at the time of incident Satish and Ayodhyabai
were not there when Dhan Singh pulled out the wire and Satish
brought the axe from the Nehare. The dispute arose because Dhan
Singh has pulled out the wire from the motor and Bharat Singh
suddenly approached to him and objected and Satish and Ayodhabai
joined them and thereafter Satish brought an axe and gave a blow,
therefore, there was no pre-meditation or common intention between
all the 3 accused to commit the murder of Bharat Singh . The dispute
arose suddenly on the agricultural field, and it is also not in dispute
that there was a previous enmity between them in respect of the land.
16. The only fact which goes against Satish is that the blow by axe
was so forceful which has caused the fracture on the temporal bone
and laceration in the brain. There is nothing on record to suggest that
the appellant is habitual criminal. The act was done in a heat of
passion as the entire dispute had happened within a short time. The
Hon'ble Supreme Court has held in Gurpal Singh v. State of Punjab,
AIR 2017 SC 471 (para 10) as under:
"10. However, in the singular facts of the case and noticing
in particular, the progression of events culminating in the
tragic incident, we are inclined to reduce the sentence
awarded to him. Incidentally, the occurrence is of the year
2004 and meanwhile twelve years have elapsed. Further,
having regard to the root cause of the incident and the
events that sequentially unfolded thereafter, we are of the
comprehension that the appellant was overpowered by an
uncontrollable fit of anger so much so that he was deprived
of his power of self-control and being drawn in a web of
action reflexes, fired at the deceased and the injured, who
were within his sight. The facts do not commend to
conclude that the appellant had the intention of eliminating
any one of those fired at, though he had the knowledge of
the likely fatal consequences thereof. Be that as it may, on
an overall consideration of the fact situation and also the
time lag in between, we are of the view that the conviction
of the appellant ought to be moderated to one under
Sections 304 Part 1 IPC and 307 IPC. Further, considering
-9- CRA NO.24/12 & CRA No.186/12
the facts of the case in particular, according to us, it would
meet the ends of justice, if the sentence for the offences is
reduced to the period already undergone. We order
accordingly."
17. The Hon'ble Supreme Court has held in Arjun and Anr. Vs.
State of Chhattisgarh, AIR 2017 SC 1150 that:
20. To invoke this exception (4), the requirements that are to
be fulfilled have been laid down by this Court in Surinder
Kumar v. Union Territory of Chandigarh (1989) 2 SCC 217 :
(AIR 1989 SC 1094, Para 6), it has been explained as under:
"7. To invoke this exception four requirements must be
satisfied, namely, (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 manner. The cause of the quarrel is not relevant nor
is it relevant who offered the provocation or started the
assault. The number of wounds caused during the occurrence
is not a decisive factor but what is important is that the
occurrence must have been sudden and unpremeditated and
the offender must have acted in a fit of anger. Of course, the
offender must not have taken any undue advantage or acted
in a cruel manner. Where, on a sudden quarrel, a person in the
heat of the moment picks up a weapon which is handy and
causes injuries, one of which proves fatal, he would be
entitled to the benefit of this exception provided he has not
acted cruelly.............."
21. Further in the case of Arumugam v. State,Represented by
Inspector of Police, Tamil Nadu, (2008) 15 SCC 590 : (AIR
2009 SC 331, Para 15), in support of the proposition of law
that under what circumstances exception (4) to Section 300
IPC can be invoked if death is caused, it has been explained
as under:
"9. .......
"18. The help of Exception 4 can be invoked if death is
caused (a) without premeditation; (b) in a sudden fight; (c)
without the offender's having taken undue advantage or acted
in a cruel or unusual manner; and (d) the fight must have
been with the person killed. To bring a case within Exception
4 all the ingredients mentioned in it must be found. It is to be
noted that the 'fight' occurring in Exception 4 to Section 300
IPC is not defined in the Penal Code, 1860. It takes two to
make a fight. Heat of passion requires that there must be no
time for the passions to cool down and in this case, the
parties had worked themselves into a fury on account of the
verbal altercation in the beginning. A fight is a combat
between two and more persons whether with or without
weapons. It is not possible to enunciate any general rule as to
what shall be deemed to be a sudden quarrel. It is a question
of fact and whether a quarrel is sudden or not must
necessarily depend upon the proved facts of each case. For
the application of Exception 4, it is not sufficient to show
that there was a sudden quarrel and there was no
premeditation. It must further be shown that the offender has
not taken undue advantage or acted in cruel or unusual
manner. The expression 'undue advantage' as used in the
provision means 'unfair advantage'."
-10- CRA NO.24/12 & CRA No.186/12
18. The Hon'ble Supreme Court has laid down in Prabhakar Vithal
Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if assault
on deceased could be said to be on account of sudden fight without
pre-meditation, in heat of passion and upon a sudden quarrel, convic-
tion of the appellant cannot be sustained under S. 302 and altered to
one under Section 304 Part-I of IPC.
19. In Sikandar Ali Vs. State of Maharashtra, AIR 2017 SC
2614, the Court has altered the conviction u/s 302 IPC to one u/s 304
part-2 IPC in the following circumstances:
"7. We have no doubt about the complicity of all the accused
in the homicide of Sarfraj. A-1 attacked the deceased with the
knife and caused injury on his neck which resulted in his
death. The other accused assisted him in committing the
crime by holding the hands of the deceased. However, the
only question that falls for our consideration is whether the
accused are liable to be punished for an offence under
Section 302 IPC. After considering the submissions made by
the counsel for the Appellants and scrutinising the material
on record, we are of the opinion that the accused are not
liable to be convicted under Section 302 IPC. We are
convinced that there was neither prior concert nor common
intention to commit a murder. During the course of their
business activity the accused reached the dhaba where the
deceased was present. An altercation took place during the
discussion they were having behind the dhaba. That led to a
sudden fight during which A-1 attacked the deceased with a
knife. Exception 4 to Section 300 is applicable to the facts of
this case. As we are convinced that the accused are
responsible for the death of Sarfraj, we are of the opinion that
they are liable for conviction under Section 304 part II of the
IPC. We are informed that A-1 has undergone a sentence of
seven years and that A-2 to A-4 have undergone four years of
imprisonment. We modify the judgment of the High Court
converting the conviction of the accused from Section 302 to
Section 304 part II of the IPC sentencing them to the period
already undergone. They shall be released forthwith."
20. The Hon'ble Apex Court has laid down in Madhavan and Ors.
Vs. State of Tamil Nadu, AIR 2017 SC 3847 that:
"8. Notably, the High Court has not considered the issue of
quantum of sentence at all, but mechanically proceeded to
affirm the sentence awarded by the Trial Court. From the
factual position, which has emerged from the record, it is
noticed that there was a preexisting property dispute between
the two families. The incident in question happened all of a
sudden without any premeditation after PW1 questioned the
appellants about their behaviour. It was a free fight between
the two family members. Both sides suffered injuries during
the altercation. The fatal injury caused to Periyasamy was by
the use of thadi (wooden log) which was easily available on
the spot. The appellants, on their own, immediately reported
the matter to the local police alleging that the complainant
-11- CRA NO.24/12 & CRA No.186/12
party was the aggressor. No antecedent or involvement in any
other criminal case has been reported against the appellants.
Taking oral view of the matter, therefore, we find force in the
argument of the appellants that the quantum of sentence is
excessive.
21. In a recent judgment passed by the apex court in case of
Lavghanbhai Vs. State of Gujrat reported in [2019(3) MPLJ (Cri)
(SC) 49] has laid down the parameters which are to be taken into con-
sideration while deciding the question as to a whether the case falls un-
der sec 302 or sec.304 Part II of IPC.
This Court in the case of Dhirendra Kumar versus State of Uttarakhand
[ 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;
(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 preparing lunch
by the deceased. The appellant picked up a wooden object and hit the de-
ceased. The medical evidence shows that not much force was used in in-
flicting blow to the deceased. The prosecution has not set up any case sug-
gesting that relationship between the husband and wife was not
cordial,otherwise. Manifestly, the incident took place due to sudden provo-
cation and in a heat of passion the appellant had struck a blow on his wife,
without taking any undue advantage. 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.
22. In Chand Khan Vs. State of M.P. reported in 2006(3) M.P.L.J.
549, the Division Bench of this Court has also converted the
conviction of the appellant in attaining facts and circumstances of the
case. Para -10 & 11 of the judgment are relevant which reads thus: -
-12- CRA NO.24/12 & CRA No.186/12
"10. If the present case is considered in the light of the
aforesaid decisions of the Supreme Court, it would show
that the appellants caused single injury on the head of the
deceased by farsa, which is a sharp edged weapon, but
unfortunately Aziz Khan (PW-11) and Ishaq Khan (PW-13)
have stated that he gave lathi blow on the head of the
deceased. Even after considering this contradictory
evidence it has to be taken into consideration that it is a case
of single farsa blow inflicted by only appellant Chandkhan
and appellant Naseem inflicted only lathi blow on the
nonvital part of the body and in the absence of this evidence
that the injury no.(i) was sufficient to cause death in the
ordinary course of nature and also looking to the various
other circumstances like that the accused as well as the
deceased are close relatives and the deceased was a person
of criminal background and the incident started because of
the abuses made first by the deceased himself, we find that
the case will not fall within the purview of section 300,
Indian Penal Code but it will fall under section 304 Part II,
culpable homicide not amounting to murder.
11. consequently, appeal is partly allowed. Conviction of
appellants under section 302/34 Indian Penal Code, is set
aside and instead they are convicted under section 304 part
II, Indian Penal Code, .........."
23. In view of the above discussion and verdicts of the apex court,
the criminal appeal is partly allowed. So far as the culpability of the
appellant Satish is concerned, same is maintained but conviction is
altered to section 304 Part 1 of IPC, instead of Section 302 of IPC and
accordingly sentenced to the period of 10 years with a fine of
Rs.10,000/-. The appellant be released from jail after depositing
difference of fine amount and if he is not required to keep in jail in any
other case .
24. The criminal appeal No. 24/2012 is partly allowed. Record of
trial court be sent back along with copy of this judgment.
25. So far the acquittal of Dhan Singh and Ayodhyabai is concerned
although their presence has been shown by all the witnesses on the
spot with the allegation that they caught hold Bharat Singh and by that
time Satish brought an axe from Nehare and gave a blow to him.
According to PW/1, PW/3, PW/4 & PW/9 they both were present on
the spot. They did not reach to help Bharat Singh . There was no sign
of scuffling or altercation between Bharat Singh and Dhan Singh and
Ayodhyabai. There was no pre-meditation mind or any common
intention between the parties to commit the murder of Bharat Singh .
The ingredients of section 34 IPC are missing in the matter. Although
-13- CRA NO.24/12 & CRA No.186/12
it is correct that to attract section 34 IPC it is not necessary that each
one of the accused must assault the deceased but if it is shown that
they shared a common intention to commit the offence and in
furtherance thereof each one played their assigned role by playing
separate act similar or diverse they all are liable to be punished. There
was no prior meeting of mind between Satish, Dhan Singh &
Ayodhyabai to have a common intention to commit the offence when
Dhan Singh pulled out the connecting wire from the motor he was
alone near the well. Bharat Singh approached him and thereafter
Satish and Ayodhyabai joined Dhan Singh . There was no evidence to
show that there was a pre-planning between them to commit the
offence, therefore, there is no overt act on the part of Dhan Singh and
Ayodhyabai, therefore, we are of the opinion that they have been
rightly discharged under section 302/34 of the IPC.
26. Resultantly, criminal appeal No.186/2012 fails and is hereby
dismissed.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Digitally signed by HARI KUMAR
C G NAIR
Date: 2021.08.02 15:21:01 +05'30'
hk/
