Rakesh Bheel vs State Of M.P.
2021 Latest Caselaw 6496 MP

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        THE 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.838/2009
Appellant:             Rakesh Bheel S/o Durjan Bheel
(In-jail)              Age-20 years, Gram Neemkheda
                       Thana Bag, District- Dhar (M.P.)
                                      Versus
Respondent:            State of M.P.
                       through P.S.- Bhag Tehsil- Kukshi
                       District-Dhar (M.P.)
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For Appellant (s)             :Mr. Ajit Kumar Tiwari, (through L.A.)
For Respondent (s)            :Ms. Mamta Shandilya, G.A.
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                              JUDGMENT

(Delivered on 08/10/2021) PER VIVEK RUSIA, J:-

The appellant has filed the present criminal appeal against judgment dated 01.07.2008 passed by the Second Additional Sessions Judge (Fast-track Court) Kukshi, District-Dhar in Sessions Trial No.48/2008 whereby he has been convicted and sentenced as below:-

Under Section Punishment Fine In default of Fine 302 of the IPC Life Imprisonment Rs.1,000/- Six months R.I. 25(1-B)(B) of 1 year R.I. Rs.500/- Three months R.I. Arms Act

2. The prosecution story of this case in short is as under: -

i). Ansingh lodged an F.I.R. against Rakesh Bheel S/o Durjan Bheel and Asam S/o Bhutiya Bheel on 29.01.2007 asserting that today Subhan and his father Nahu along with other relatives came to his house with a goat to attend a ceremony of death of his father (Nukhta Karyakram). Rakesh S/o Durjan Bheel and Asam also came to his house with one goat. After taking meals all left the house. After some time Nahu came back and informed him

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that Rakesh S/o Durjan and Bhutiya have assaulted them when he objected S/o Durjan gave a blow by Faliya to Subhan and when he tried to intervene S/o Bhutia have injured him with stone. He along with Taresingh reached the spot and found Subhan was seriously injured bleeding from the injuries. Upon asking he said that Rakesh gave him a blow by Faliya and Asam threw stones at him. The police have registered F.I.R. under Section 307 and Section 34 of the IPC against Rakesh S/o Durjan and Asam S/o Bhutiya Bheel and set the investigation into motion. Police reached the spot and filled the crime details form (Exhibit-P/3) and drawn the spot map. Subhan was admitted to the hospital in an injured condition vide (Exhibit-P/1) the doctor has found as many as six injuries vide MLC (Exhibit-P/2). Shubham succumbed in the hospital on the same day at 9:20 p.m. and information was sent to the police station and merg no.69/2007 was registered to vide (Exhibit-P/4). Police prepared Naksha Panchnama (Exhibit-P/6). The dead body was sent for postmortem. The doctor who conducted the autopsy has opined that the cause of death is hemorrhagic shock due to external and internal injuries (Exhibit-P/8). Nahu was also examined who said to have been sustained injuries on the head and shoulder by hard and blunt object vide (Exhibit-P/8-A). Police added section 302 of the I.P.C. and arrested accused Rakesh on 11.12.2007 and recorded a memorandum statement under section 27 of Indian Evidence Act vide (Exhibit-P/11). On his disclosure, Faliya was recovered containing bloodstains vide (Exhibit-P/12). The blood- soaked soil, plane soil, Faliya, and cloths of the deceased were sent to the FSL vide (Exhibit-P/17). On completion of the investigation, police have filed the charge sheet on 21.01.2008. As the co-accused-Asam was not arrested the investigation was kept open under section 173(8) of the Cr.P.C. The trial was committed

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to the Sessions Court. Vide order dated 07.02.2008 charges were framed against accused-Rakesh, which he has denied and pleaded for trial.

ii. The prosecution has examined 7 witnesses and got exhibited the aforesaid documentary evidence in order to prove the charges against the appellants. In defence the appellant did not examine any witnesses and denied charges and pleaded false implication. After evaluating the evidence came on record vide order dated 01.07.2008 learned Second Additional Sessions Judge, has convicted and sentenced the appellant as stated above hence, the present appeal before this Court.

(3). Learned counsel for the appellant submits that the appellant has been falsely implicated in this case. There are various omissions and contradictions in the statement of the witnesses which have been ignored by the trial Court. He has wrongly been convicted on the statements of Nahu and Ansingh who are not reliable witnesses. The case is based upon circumstantial evidence as no one has seen this appellant causing injuries to the deceased. All the witnesses are related to the deceased . Learned counsel further submits that the appellant is in jail since 2007. He has completed more than 13 years incarnation in jail. There was no previous enmity between the deceased and the present appellant. The offence has not been committed with a pre-meditate mind. Both had dinner together in the house of the complainant and at that time there was no dispute between them hence the offence has been committed in a sudden provocation after a verbal altercation, therefore, falls under Section 304 (Part-2) of the IPC and not under section 302 of the IPC hence, the appellant may kindly be released from jail by reducing the sentence of life imprisonment to the period of sentence already been undergone by him.

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Learned Government Advocate has argued in support of the impugned judgment and prayed for dismissal of the criminal appeal.

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

(4). As per (P.W.-1) Dr R.K. Shinde, who immediately attended the injured Subhan in a community health centre, Bhag. He found five incise wounds on the person of Subhan. He has specifically stated that all the injuries were caused by a sharp object. The deceased died on the same day. Postmortem was carried out and as per the autopsy report Dr. Pramod Joshi, Medical Officer (P.W.-

7) states that the deceased died because of internal bleeding as a result of damage of vital lungs and all the injuries appear to be caused within 24 hours. There is no challenge to the findings recorded by the learned Additional Session Judge in respect of the death of Subhan due to the injuries sustained by him. The death is homicidal in nature hence, we accordingly affirm the findings recorded by the learned trial Court.

An issue which requires our consideration as to whether the appellant has rightly been convicted under section 302 of the I.P.C.?

(5). Ansingh who lodged the F.I.R. states that in the Court that he knows the appellant as well as deceased Subhan. Four months ago, there was a ceremony of death (Nukhta Karyakram) of his father Subhan came with one goat and the appellant also came with one goat. After finishing the meal Subhan demanded the goat's skin. Along with Subhan, the appellant and Nahu went along with him and on the way, some verbal altercation took place between them. The appellant brought the Faliya and assaulted the Subhan on his head and stomach and caused injuries to Nahu by stone . Nahu came to his home and thereafter, he reached the spot,

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found Subhan in an injured condition. Upon asking Subhan disclosed that appellant-Rakesh caused injuries thereafter, he becomes unconscious. Nahu has been examined as (P.W.-3) who has also supported the case of the prosecution. He was the only injured eye-witness of this case. Mangabai (P.W.-4) has also supported the case of the prosecution. K.S. Rawat, S.H.O., Police Station Thanda, who conducted the investigation has also been examined as (P.W.-5) therefore, the testimony of P.W.-2, 3 and 5 cannot be discarded merely because they are related witnesses. Ansingh is neither related to the deceased nor the appellant. According to him, the deceased and appellant left his house and thereafter, Nahu immediately came and informed him about the incident and he reached the spot and found Subhan in an injured condition. We have no reason to disbelieve the testimony of Ansingh who himself has sustained the injuries and witnessed the entire incident therefore, there is no ground to interfere with the findings recorded by the learned trial Court. (6) So far as the conviction under section 300 of the Indian Pe- nal Code is concerned the dispute started between the deceased and the appellant in the house of Ansingh and thereafter, they went and this appellant has caused injuries to Shubham after some verbal altercation. There are as many as 5 incise wounds but there was no intention and the injuries were caused without premedi- tated mind. The Faliya is a sharp-edged weapon because of the repeated blow the internal organs of the deceased were damaged. There was no previous enmity between the appellant and the de- ceased. Who was the aggressor is immaterial and the number of injuries is also not liable to be considered if the assault was not pre-planned. The appellant is not reported to the hardened crimi- nal, this is his first offence. His long period of incarnation is also libel to be considered in taking the facts and circumstances into

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consideration. We find support from the following verdicts of the apex court in similar circumstances. The Hon'ble Supreme Court has also held in the case of Arjun and Anr. Vs. The state of Chhat- tisgarh, 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'."

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In the case of Sikandar Ali Vs. The 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 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."

(7). In view of the above discussion and aforesaid law laid down by the Apex court, criminal appeal is partly allowed. The conviction and sentence are hereby altered as under Under Section Punishment Fine In default of Fine 304 Part II of the Period of sentence Rs.1,000/- Six months R.I.

                                IPC                already undergone
                                25(1-B)(B) of Arms 1-year R.I.                          Rs.500/-       Three months R.I.
                                Act

The appellant be released from jail after depositing deference of fine amount and if he is not required to keep in jail in any other case.

Let the record of the trial court be sent back along with judgment for compliance.

                              (VIVEK RUSIA)                                               (SHAILENDRA SHUKLA)
                                  JUDGE                                                         JUDGE
        Ajit/-

AJIT        Digitally signed by AJIT KAMALASANAN

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