Hukum And Others vs The State Of M.P.
2021 Latest Caselaw 6422 MP

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    HIGH COURT OF MADHYA PRADESH: BENCH AT
                    INDORE
              D.B. : Hon'ble Shri Justice Vivek Rusia
             Hon'ble Shri Justice Shailendra Shukla, JJ.

                     Criminal Appeal No.1336/2005
1     Hukum S/o Dur Singh, aged about 19 years.
2     Amar Singh S/o Dur Singh, aged about 24
      years.
                                                    Appellants
3     Dur Singh S/o Bhim Singh, Tadvi, aged
      about 45 years.
      All R/o Village Balsamud
                                 Versus
      State of Madhya Pradesh through Police-
      Station- Kasrawad                       Respondent

    Ms. Sonali Goyal, learned counsel for the appellants.
    Shri Amit Singh Sisodia, learned Government Advocate for the State.
                   JUDGMENT

(Delivered on 05 October 2021) PER VIVEK RUSIA, J: -

Appellants have preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") against the judgment of conviction dated 25.10.2005, passed by Additional Sessions Judge, West Nimar, Mandleshwar in Sessions Trial No.95/2204, whereby they have been convicted for an offence under Sections 302/34 and 323/34 of Indian Penal Code (for short "IPC") and sentenced to undergo life imprisonment each and one year R.I. each and a fine of Rs.500/- each respectively, with usual default stipulation.

(2). The case of the prosecution, in brief, is as follows: -

(a). On 29.11.2003 at about 05:30, complainant Amarsingh (Deceased) after doing labour came back and was sitting outside of his house. The Mangilal (PW-4)) (nephew) of the deceased eloped the Suman i.e. sister of the accused Hukumsingh, therefore, appellants had enmity with him. Because

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of the said enmity, the appellants came to the house of the deceased and started assaulting him by means of a knife. In injured condition, he reached to the Police Station- Kasrawad and lodged FIR vide Ex/P-15 against the appellants, thereafter, he was sent to the Primary Health Center, Kasrawad, where Dr. K.S. Jadhav (PW-6) examined him. Since his condition was serious, therefore, he was referred to District Hospital, Khargone from where he was referred M.Y. Hospital, Indore. He died while taking treatment at M.Y. Hospital Indore.

(b). The information of his death was sent to Police- Station Sayogitaganj, which was registered at merg No.0/438/2003 under Section 174 of Cr.P.C. The police reached the hospital and sent the dead body for postmortem. Dr. S.K. Dadu (PW-9) conducted the postmortem and submits its autopsy report.

(c). After completing the investigation, the charge-sheet was filed against appellants viz Hukum Singh S/o Dur Singh, Amar Singh S/o Dur Singh and Dur Singh S/o Bhim Singh under Section 302, 323/34 of I.P.C. The Additional Chief Judicial Magistrate, Kasravad committed the trial to the Sessions Court vide order dated 28.04.2004. The Session Judge, transferred the case to Special Judge, Mandleshwar to conduct the trial. After hearing of the appellants, aforesaid charges were framed, appellants abjured their guilt and pleaded for the trial.

(3). The prosecution has examined as many as 13 witnesses as PW-1 to PW-13 namely Leela Bai (PW-1), Ganga Bai (PW-2), Kali Bai (PW-3), Mangilal (PW-4), Budhiya (PW-5), Dr. K.S. Jadhav (PW-6), Saku Bai (PW-7), Jitendra Bhadoriya (PW-8), Dr. Sanjay Kumar Dadu (PW-9), Radheshyam (PW-10), Kurban Hussain (PW-11), Chandracant (PW-12) and Mishrilal (PW-13)

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and got marked 13 documents as Ex.P/1 to Ex. P/13.

(4). The appellants in their statement recorded under Section 313 of Cr.P.C., have pleaded falsely been implicated because of the enmity. They have denied their presence on the spot and in his defence they have examined DW-1 to DW-3 namely Mohd. Yusuf (DW-1), Arvind (DW-2) and Sadik Khan (DW-3).

(5). After evaluating the evidence that came on record, vide judgment dated 25.10.2005, the appellants have been convicted and sentenced as stated above. Hence, this appeal before this Court.

(6). Learned counsel for the appellants submits that during pendency of this appeal Dur Singh, who is on bail. Amar Singh has withdrawn this appeal after undergoing the entire jail sentence. Hukum Singh was released on parole vide order dated 19.02.2018 from the period 30.10.2018 to 14.11.2018 but he did not return to jail. Hence, an FIR No.449/2018 has been registered against him under Section 224 of I.P.C. and till today he has not been arrested.

(7). The jail sentence of appellant Dur Singh was suspended vide order dated 08.03.2006. Vide order dated 04.01.2021, the appellant Amar Singh has permitted to withdraw this appeal.

(8). Learned Government Advocate appearing on behalf of State submits that there is no scope of interference in this appeal as the prosecution has proved the charges against appellants beyond reasonable doubt. The deceased himself lodged a report in injured condition at Police-Station. Thereafter, he was referred for treatment where he succumbed to the injuries. The eyewitnesses Leela Bai (PW-1), Ganga Bai (PW-2) and Gali Bai (PW-3) have fully supported the case of prosecution. The Mangilal (PW-4) is

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eye witness as well as injured. There is no reason to disbelieve their testimony. Minor omissions and contradictions are liable to be ignored. The deceased was immediately examined by the Doctor at Primary Health Center and drawn the MLC. and thereafter, he was treated at Hospital and died. The postmortem report confirmed the injury on the person of the deceased. He sustained as many as six stab injuries, which were sufficient to cause his death. There is recovery of knife on the disclosure of appellants, in which human blood was found. Hence, no interference is called for and appeal is liable to be dismissed.

I have heard learned counsel for the parties and perused the record of the trial court.

(9). Learned counsel for the appellants has submitted that in order to prove the charges, the prosecution has produced the circumstantial evidence as well as direct evidence in form of four eyewitnesses Leela Bai (PW-1), Ganga Bai (PW-2), Kali Bai (PW-3) and Mangilal (PW-4), who also sustained the injuries on the date of the incident. It is further submitted by the learned counsel that as per the case of the prosecution, deceased Amarsingh after receiving knife blows went to the Police Station in a police vehicle along with her wife Leelabai PW-1 and lodged FIR at 6.15 p.m. Thereafter, his medical examination was conducted at 6.30 p.m. by Dr. Jadhav PW-6 wherein, in Ex P/3 he found that Amarsingh received four incised wounds which were found on 'Epigastric Region, Left Paramedian to Umbilicus, Left Loin and Left Axilla Posterior Fold, caused by hard and sharp object within 24 hrs'. PW-6 also noted in Ex P/3 that the 'patient was talking irrelevant, smell of liquor like alcohol through the mouth and nostril'. 'Patient have consumed liquor like alcohol and under intoxication'. 'Patient is unable to give a statement at

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present.

(10) That PW-6 has deposed in Para 05 of the Court deposition that injured Amarsingh was unable to make any statement because he was under intoxication. PW-1 LEELABAI (wife of deceased) has also stated in Para 07 that her husband Amarsingh became unconscious on the way to the police station. PW-2 GANGABAI (mother of injured witness Mangilal) deposes in Para 05 that Amarsingh became unconscious after the knife blow and he was carried to the police station. PW-3 KALIBAI deposes in Para 6 that injured Amarsingh became unconscious at the spot. Therefore, as it is evident from the above-mentioned depositions that Amarsingh was unconscious after the incident. Therefore conclusively, on 29.11.2003 at 6.15 p.m., Amarsingh could not have lodged FIR and made statements u/s. 161 CrPC which is quite evident from the Medical and Ocular evidence adduced. The FIR and 161 statements have been forged in this case by the Investigating officer and false evidence have been created, this is a highly tainted and dishonest investigation. The FIR and 161 statements are provenly forged and can in no circumstance be treated as Dying Declaration in this case. (11) Learned counsel further argued that for a statement to be treated as a dying declaration, investigating officer has to follow Regulation 742 of Madhya Pradesh Police Regulations which is as follows-

" Signing of a statement recorded.- the only circumstances in which a statement taken down in writing by a police officer making an investigation is to be signed by the person making it are when the deponent is in a moribund condition and the statement is practically a dying declaration. If the magistrate is near the hand, and the declaration is on that event of the deceased's death would be relevant under section 32 of the Indian evidence act, the magistrate should be asked to attend and record the statement of dying person, in accordance with the provisions of section 164, criminal procedure code.

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If the attendance of magistrate cannot be secured, without the risk of such person's death before his statement can be recorded, the investigation officer will record the dying declaration in accordance with the following instruction: -

1. If possible, such person shall be examined by a medical officer with the view to ascertaining that he is sufficiently in possession of his reason to make a credible statement.

2. Such statement shall be recorded in the presence of two or more credible witness unconnected with the police department. If such credible witness cannot be obtained without risk of such person's death before his statement can be recorded, it will be recorded in the presence of one or more police officers. This rule does not apply when gazetted officer is present."

(12) It is correct that the deceased was examined by the doctor and he found him under intoxication talking irrelevantly. That it is also an admitted fact that Amarsingh died after 3 days of the incident, during which period also no effort was made by the investigating officer to secure the presence of Magistrate for recording Dying Declaration, while he was at Khargone and Indore Hospital. That, on 29.11.2003 also, he was examined by the Dr. Jadhav (PW-6) who found him unfit to make a statement and was talking irrelevant, then how deceased Amarsingh could travel Police Station to lodge FIR and give statements u/s. 161 Cr.P.C.. The ocular evidence says that he became unconscious after the incident and the medical evidence also says that he was unable to make a statement and is under intoxication. He was unfit to give any statement and for this reason, only, presence of the Magistrate was not secured on 29.11.2003, hence his 161 statement cannot be treated as the dying declaration. (13) That learned counsel has argued that (PW-1) Leelabai, is to be disbelieved as first time deposed before the Court that she is the eyewitness of the incident. Before the deposition in the court, she was only a witness of receiving the Dead Body of her husband, as per her deposition in Para 02. No statements of this witness were ever recorded u/s. 161. In this

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respect, she also deposes in Para 10 that 'Police interrogated me at Indore. Before this, no interrogation was done or statements were taken by the Police.' It is correct that no statement under section 161 was recorded by the police but no objection was raised by the defence counsel at the time of examination of P.W.-1 in the court and he cross-examined her, hence her deposition is liable to be considered in the trail.

(14) It is further submitted by the learned counsel that P.W.-1 deposes in Para 06 that 'her husband was sitting at the Otla, I was preparing the meal. She volunteers that suddenly her husband screamed when she came out. It is right to say that when I came out, I saw that my husband was lying on the floor.' In Para 05 she deposes that 'the fight took place at evening 6 p.m. It was wintertime. It is right to say that it became dark at that time. It is right to say that there was no light at the time of the incident.' But being the wife her presence in the house cannot be doubted. As per the prosecution case, Amarsingh came and went inside the house, he was chased by the appellants, after hearing a scremed voice she immediately came outside and saw the appellants and injured husband. There is corroboration of the injuries from the autopsy report hence Leelabai presence and deposition in the court cannot be disbelieved.

(15) Learned counsel has further argued that, according to the prosecution's case, Mangilal was injured when he intervened in the alleged fight going on between deceased Amarsingh and Appellants. That according to Ex D/2 also, Mangilal made a statement before Police on 29.11.2003 that "Amarsingh's sister was in love with me, so upon her consent and when she volunteered I and Suman eloped and we got married, but we both were young at age, therefore, Police instituted a case against me which is pending in Khandwa Court. Due to this animosity, in the

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evening, During caught hold of the deceased and Amarsingh and Hukum gave knife blows, which caused him injury in baayi aankh, baayi kaankh, baayi bakhore, bembi ke pass", Hence there was no reason to assault the Amarsing by the appellants. Hence this case at the most would fall under 304 Part II I.P.C. (16) It is correct that the appellants came after Mangilal and not to assault deceased Amar Singh. Mangilal intervened in the fight to rescue Amar Singh whereupon he received an injury on the head. Mangilal also sustained the injury by stick blow hence he was an injured eye-witness , hence no doubt in respect of his presence on the spot. Whether this is a case of culpable homicide not amounting to murder shall be considered later on. (17) So far the motive behind the killing of Amarsingh is concerned Mangilal had abducted sister Suman of appellant No. 1, hence they were chasing him to take revenge, he entered in the house of his fufa Amarsingh. Since he was present at the spot and prevented them to enter inside the house, the appellants have assaulted Amarsingh with four knife blows instead of Mangilal. Undisputedly a case was registered against Mangilal by Suman under Sections 363, 366 and 376 of the IPC on 12.07.2003 for abducting Suman (sister of appellant no.1) and committing rape upon her. Therefore, the motive shown by the Prosecution is established.

(18) It is further submitted by the learned counsel that PW/3 Kalibai, the so-called eye witness is to be disbelieved because this witness claims herself to be the eye witness of the incident because in Para 3, she deposes that her house is adjacent to the deceased Amar Singh's house and that she was sitting in the courtyard outside her house. That, however, as per the prosecution's spot map, Exhibit P/17, Point No. 5 is not shown to be the house of Kalibai. That her statements in Ex D/1 are

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delayed by 3 days and in Para 2 of her Court deposition, she deposes that I did not make any statement to the police after 2-3 days of the incident. We are not impressed by this ground as her statement Exhibit D/1 dated 02.12.2003 is on record the delay in recording it would not be fatal to the case of the prosecution. There is no challenge to her deposition in cross-examination that she does not reside near the house of the deceased Amarsingh. She has immediately reached the spot after hearing noises. (19) It is further submitted by the learned counsel that in her Ex D/1 statement, she mentioned the injury of Mangilal on the head which is inconsistent with the medical evidence Exhibit P/4 made by PW/6 where it is clearly stated that Mangilal received a contusion injury on his left scapular region. Kalibai deposed that deceased Amarsingh sustained 6 knife injuries, which is also inconsistent with the Medical evidence on record, which mentions 4 incised wounds to deceased Mangilal. That P.W.-3 is an illiterate lady with a rural background such minor contradiction and omission are liable to be ignored as that would not affect the case of the prosecution.

(20) Learned Counsel has argued that PW-2 Gangabai (mother of so-called injured eye-witness Mangilal) has not supported the case of prosecution.This witness deposes in para 2 that Mangilal had hit Amarsingh with Lathth and then she went to the Police Station. In her cross-examination, she deposes in Para 3 that Mangilal sustained an injury on his head, whereas he sustained injury at scapular region. She also deposed in Para 5 that Amarsingh became unconscious after the knife blows. This witness Gangabai has turned hostile, but the entire testimony cannot be discarded, and minor omissions and contradictions are liable to be ignored looking to her rural back ground. (21) It is further submitted that seizure made by the Investigating

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Officer have turned hostile but for that entire investigation cannot be discarded . the police witness have supported the seizure and arrest of the appellants (22) In defence the appellants have examined witness to established that they were attending the rally of Subhash Yadav while the alleged incident happened. That, the defence has examined three witnesses DW-1 Mohammad Yusuf, DW-2 Arvind, DW-3 Sadik Khan.These witnesses were present at the rally of one Subhash Yadav who was the deputy Chief Minister, which commenced from 5.00 p.m. and ended at 7.00 p.m on 29.11.2003, all the three witnesses deposed that the appellants were present with them at the rally for the entire period till end. In support of ocular evidence no pamphlets or photographs or paper news has been produced before the court to establish exact date and time of rally of Mr. Subhash Yadav , hence learned Additional Session Judge has rightly disbelieved the same . (23) Learned counsel has concluded her arguments by submitting that, that Appellant no.1 has already suffered 14 years of jail sentence. He was arrested on 14.03.2004 and had spent 591 days in jail until 25.10.2005 (the date of Impugned Judgement). Since then, he has been in jail and has already suffered a period of 14 years until 2018 and 17 years until 2021.Appellant no. 3 Dursingh was on bail as his Sentence was suspended vide Order dated 08.03.2006. In criminal law there is no space for "may be" what you need to prove is "must be" which the prosecution has miserably failed to prove as the story smells of concoction and Prosecution evidence has to be consistent with each other if they are contradicting one another then the prosecution has failed to prove its case.

(24). The prosecution has examined Leela Bai (PW-1), who is wife of the deceased and according to her near about 06:00 PM,

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her husband returned after doing the labour work and sitting outside the house. Humuk, Amar Singh and Dur Singh came armed with stick and knife. Dur Singh has caught hold the deceased and Amar Singh and Hukum stabbed him. Thereafter, he was taken to Kasravad Police Station from where he was refereed to Khargone hospital. He remained under treatment for 4-5 days and died. She collected the dead body. It is correct that the statement under Section 161 of Cr.P.C. was not recorded by the police. The statement of deceased was recorded under Section 161 of Cr.P.C. Learned Senior counsel for the appellants submits that the statement under Section 161 of Cr.P.C. of the deceased cannot be taken as dying declaration because he was not in a position to give statement. The Leela Bai (PW-1) in her deposition, has stated that, Amar Singh became unconscious, after sustaining six incised wounds. As per the doctor statement, the deceased was heavily drunk and talking irrelevant things, therefore such a exhaustive statement under section 161 of Cr.P.C. is unbelievable. The Ganga Bai (PW-2) has also stated that Amar Singh became unconscious after the knife blow. According to Leela Bai (PW-1), the Amar Singh became unconscious on the way to Police Station. The Kali Bai (PW-3) has also stated that Amar Singh became unconscious at the spot.

(25). The investigating Officer has stated that the Amarsingh (deceased) came inside the police station by walking from the main gate which is 100 meter away, therefore, the FIR lodged by the Amar Singh and statement under Section 161 of Cr.P.C. becomes doubtful and cannot be relied on.

(26) The other evidence came on record is corroborated with medical evidence , the death of Amarasing is homicidal in nature , the presence of appellants have been established by the

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prosecution hence their guilty verdict in the case is liable to be affirmed . The only point which requires consideration as to whether they are liable to be punished under section 304 part II or not? The appellants had enmity with Mangilal not with deceased, on the fateful day they were chasing him, by chance he came to the house of deceased and saved himself. The deceased confronted with the appellants, and they assaulted him. There was no intention of appellants to murder him as it was not preplanned or premeditated.

The Hon'ble Supreme Court has held in the case of Gurpal Singh v. State of Punjab, AIR 2017 SC 471. Para 10 of the judgement reads thus:

"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 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."

The Hon'ble Supreme Court has also held in the case of 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

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(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'."

In the case of Sikandar Ali Vs. State of Maharashtra, AIR 2017 SC 2614, the Court 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

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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."

The Hon'ble Apex Court laid down in the case of 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 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.

In a recent judgment passed the Apex court in the 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;

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(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.

(27). In view of the above discussion and verdicts of given by the Apex court, the criminal appeal is partly allowed. The culpability of the appellants are maintained but their convictions is altered from section 302/34 to section 304 Part I of IPC, and accordingly sentenced is reduced from LIFE IMPRISONMENT to the period of 10 years with a fine of Rs.10,000/- each. The appellant No.1 be released from jail after depositing deference of fine amount and if he is not required to keep in jail in any other case. The appellant No.3, who is on bail is directed to surrender to undergo his remaining jail sentence. His bail bonds are stands cancelled.

This criminal appeal No. 1336/2005 is partly allowed. Record of trial court be sent back along with copy of this judgment.

               ( VIVEK RUSIA )                            ( SHAILENDRA SHUKLA )
                   JUDGE                                         JUDGE

              praveen/-

Digitally signed by PRAVEEN
NAYAK
Date: 2021.10.08 17:04:25 +05'30'