Roomabai vs State Of M.P.
2021 Latest Caselaw 6503 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.1097/2008
Appellant:             Rooma Bai W/o Tar [email protected] Hara,
(In-jail)              Age-35 years, Village-Kudi Gadriya Falya
                       P.S. Chenpur, District-Khargone (M.P.)
                                      Versus
Respondent:            State of M.P.
                       through P.S.- Chenpur
                       District-Khargone (M.P.)
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        For Appellant (s)             :Mr. Akhil Godha through Legal Aid,
        For Respondent (s)            :Mr. Sudhanshu Vyas, 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 31.07.2008 passed by the thrid Additional Sessions Judge, Khargone, West Nimar (M.P.) in Sessions Trial No.70/2008 whereby she has been convicted under Section 302 of the IPC and sentence to undergo life imprisonment with fine of Rs.100 and one year additional R.I. in default.

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

i). On 05.03.2008 deceased Tar [email protected] Hara went the market with his wife Rooma Bai (appellant) to purchase jewelries for the marriage of daughter Sharma. After returning home at 7 to 8 p.m. when he was sitting to take meals a dispute started in respect of value of the silver ornaments which turned into scuffle between husband and wife after hearing the voice of fighting Naba (P.W.-

3) father of the deceased came inside house and separated them. The appellant-Rooma Bai took out the axe and gave two to three blows on head of the Tar [email protected] Naba snatched the axe and

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thrown outside. Thereafter, Ringu Bai (P.W.-5) daughter of the deceased went to the house of Antar Singh (P.W.-2) to call him. Rooma Bai fled away from the spot with an axe. They all immediately arranged the vehicle and took Tar [email protected] Hara to hospital for treatment but he succumbs to the injuries. Gopal (P.W.-4) has lodged a complaint in the police station Chenpur, District- Khargone which was registered at Dehati Nalshi No.0/2008 under section 302 of the IPC and sent to police station Chenpur where an FIR at Crime No.32/2008 was registered against the appellant under section 302 of the IPC vide Exhibit- P/10. Narendra Singh Borana, inspector (P.W.-7) has started the investigation and he drawn the Safina Form vide Exhibit-P/2 and prepared Naksha Panchayatnama vide Exhibit-P/3 and drawn the spot map at the instance of Naba (P.W.-3). The dead body was sent to community health center, Jhinya vide Exhibit-P/7. Blood stain soil and plain soil were recovered from the spot. On the disclosure of Appellant- Rooma Bai vide Exhibit-P/5 an Axe was seized vide Exhibit-P/6 and she was arrested. Police has recorded the statement of P.W.-1 to P.W.-5 under section 161 of the Cr.P.C. After postmortem Dr. Hukumchand Soni (P.W.-10) gave an autopsy report with opinion that he died due to excessive bleeding from the head injuries.

ii. Upon completing the investigation police filed the charge sheet and trial was committed to the Sessions Court. Charges under Section 302 of the IPC was framed against the appellant. She denied the charges and pleaded for trial. The prosecution has examined 10 witnesses as P.W.1 to P.W.-10 and got exhibited 10 documents. In defense Rooma Bai did not examined any witnesses. After evaluating the evidence came on record the learned Sessions Judge has convicted the appellant under section 302 of the IPC and sentenced to undergo life imprisonment hence,

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the present appeal before this Court.

3. No one has appeared on behalf of appellant therefore, Shri Akhil Godha, advocate has been appointed as counsel for the appellant through Legal Aid.

We have heard Shri khil Godha as well as Govt. Advocate for the respondent/State and perused the record.

4. So far as the injuries are concerned Naba (P.W.-3) who immediately reached inside the house and in his presence the appellant gave two to three blow by axe on the head of husband Tar Singh @ Hara. He died while taking to the hospital. After the death the postmortem was conducted. The Autopsy was conducted by Dr. Hukumchand Soni (P.W.-10) and according to him one lacerated wound and two incise wound were found on the head and Tar Singh @ Hara died due to excessive blood loss from the injuries, therefore on the basis of report and the evidence of the P.W.-10 doctor the death of Tar Singh @ Hara was homicidal in nature. Accordingly, we affirmed the findings recorded by the learned Second Additional Sessions Judge.

5. The only issue which requires consideration whether the appellant has rightly been convicted under Section 302 of the IPC and sentenced to life imprisonment? In order to prove the charges prosecution has examined Anar Singh, (P.W.-1) who is uncle of the deceased and according to him there was a fight between deceased and Rooma Bai and she assaulted him by means of an axe and fled away. He took Tar Singh @Hara to the hospital and died on the way. Thereafter, prosecution has examined Antar Singh (P.W.-2) who is nephew of the deceased who reached to the spot after receiving information from daughter Ringu Bai (P.W.-

5). He saw the deceased lying unconscious and bleeding from the head injuries thereafter he took him to the hospital. Naba (P.W.-3) is eye-witness who immediately reached inside the room when

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this deceased Tar Singh @ Hara and Rooma Bai were fighting with each other and he witnessed the appellant Rooma Bai took out axe and gave blow. Gangu Bai (P.W.-5) daughter of the deceased had also witnessed the incident and immediately call Antar Singh on the spot therefore, P.W.-1 to P.W.-5 have established that the appellant has assaulted by means of axe to her husband and due to the injuries he died. Police has recovered the axe on disclosure by the appellant. Therefore, the trial Court has rightly held that the deceased Tar Singh @ Hara died to the head injuries caused by the appellant. Hence, accordingly affirmed.

6. At this stage the learned counsel for the appellant submits that the appellant has wrongly been convicted under Section 302 of the IPC and the case falls under the exceptions of Section 304 (Part-II) of the IPC. As per the evidence of Naba (P.W.-3) and Ringu Bai (P.W.-5) father and daughter of the deceased that the deceased and the appellant came from the market after purchasing jewelries for the marriage of daughter. The dispute arose in respect of the value of the silver ornament thereafter, scuffle started between both of them. Naba came inside and separated them thereafter, Rooma Bai took out the axe lying in the house and gave two to three blows on the head of the deceased therefore, it is clear that the injuries were caused without any pre- planning and premeditated mind and out of a sudden provocation and heat of the passion the offence has been committed. The appellant is not reported to the hardened criminal, this is her first offence. Her long period of incarnation is also libel to be considered in taking the facts and circumstances into 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 Chhattisgarh, AIR 2017 SC 1150 that:

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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'."

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

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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. It is a case of the dispute between husband and wife who had no strain relationship. The marriage took place between them long back because they had a daughter of marriageable age hence it is established that on the fateful day a dispute arose suddenly and out of heat of passion she took out the axe and gave blows. Minor verbal exchanged between husband and wife due to value of silver ornament bloated into sudden physical attack. There was no premeditation or pre plan hence, conviction is liable to be alter from section 302 of the IPC to Section 304 (Part-I) and sentence is reduced from life imprisonment to the period already already undergone by the appellant and the fine amount is maintained. With the aforesaid the appeal is partly allowed. Appellant be released from jail if not required din any other crime.

8. Let the copy of this judgment be sent to the concerned Jail and the trial Court along with the record.

         (VIVEK RUSIA)                                                         (SHAILENDRA SHUKLA)
             JUDGE                                                                   JUDGE

Ajit/-

         AJIT
                           Digitally signed by AJIT KAMALASANAN

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KAMALASAN 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba241ef fad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A1EE901C 09EF29,

AN serialNumber=7F0BEE2D78BD57DA058F3247441C87E7E 0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2021.10.08 18:38:59 +05'30'