Jeevan vs State Of M.P.
2021 Latest Caselaw 6590 MP

                                    -: 1 :-
                                                             CRA No.629/2008


     HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(DIVISION BENCH: HON. Mr. JUSTICE VIVEK RUSIA AND HON.
           Mr. JUSTICE SHAILENDRA SHUKLA)

                           CRA No. 629 OF 2008
Appellant.                      Jeevan S/o. Kaluram Rajore, Aged 32 years,
                                Occupation : Labour, R/o. 94B Old,
                                77B New, Prajapat Nagar, Indore.

                    Vs.

Respondent.                     State of M.P. through P.S. Chandan Nagar,
                                Indore.

                     ***********************
     Ms. Seema Sharma, Advocate for the appellant through Legal Aid.
     Smt. Mamta Shandilya, Govt. Advocate for the respondent/State.
                     ***********************
                            JUDGMENT

(Delivered on 21st October, 2021) Per se Vivek Rusia, J :

The appellant has filed the present appeal being aggrieved by the judgment dated 29.8.2008 passed by Sessions Judge, Indore in Sessions Trial No.278/2007 whereby he has been convicted u/s. 302 of the IPC and u/s. 25(1-B)(b) of the Arms Act and sentenced to undergo life imprisonment and two years and to pay fine of Rs.5,000/- - 2,000/- respectively and in default of payment of the fine amount, to further undergo 4-3 months' additional RI. Learned Sessions Judge has directed to run both the sentences concurrently.

The facts of the case in short are as under:

2. As per the prosecution story, the complainant - Leelabai was residing with her two sons viz. Jeevan (appellant) and Anil @ Nana (deceased). On 18.6.2007 in the morning hours, Anil was sleeping and the complainant woke him up , due to which he became annoyed and threw stone ('Ludia') towards her but did not hit her. Because of the aforesaid act of Anil, the

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present appellant Jeevan became annoyed and he caught his hand and stabbed multiple times by means of a knife. The complainant shouted for help and a resident viz. Daka came there and intervened. Appellant - Jeevan and Daka took Anil to Arihant Hospital where the Doctor declared him dead. The incident was witnessed by other villagers. The complainant mother lodged the report which was registered at Crime No.656/2007 u/s. 302 of the IPC. The appellant was arrested and taken to custody. On his disclosure, the police recovered the knife. The dead body was sent for postmortem. The autopsy was carried by Dr. Bharat Prakash (P.W.3) who gave the report vide report (Exh. P/2) that the deceased died due to shock and haemorrhage as a result of multiple injuries on the body and the death is homicidal in nature. The police collected the bloodstained soil and the plain soil, clothes of the deceased, bloodstained knife from the accused, cloths of the accused and sent them to the FSL As per the FSL report (Exh. P/23), human blood was found on the knife apart from other articles.

After completing the investigation, a charge sheet was filed. The trial was committed to the Court of Sessions on 6.9.2007. Learned Sessions Judge framed the charge u/s. 302 of the IPC and u/s. 25(1-B)(b) of the Arms Act against the appellant, which he denied and pleaded innocence, alleged false implication, hence the prosecution was called upon to examine the witnesses to prove the charges against the appellant.

In order to prove the charges, the prosecution has examined 14 witnesses as P.W.1 to P.W.14 and exhibited 24 documents as Exh. P/1 to P/24. In defence, the appellant did not examine any witnesses but got exhibited the statement of Daka and Rojnamcha vide Exh. D/1 and D/2.

After evaluating the evidence that came on record, learned Addl. Sessions Judge has convicted him u/s. 302 of the IPC and u/s. 25(1-B) (b) of the Arms Act and sentenced him, as stated first, hence the present appeal before this Court.

We have heard the learned counsel for the parties and perused the

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record.

3. Learned counsel for the appellant submits that Dehati Nalisi was lodged at the instance of Smt. Leelabai, but she died during pendency of the trial, hence she could not be examined in court. The other witnesses have not supported the case of the prosecution. The group of bloodstains on the articles has not been disclosed in the FSL report. As per the Doctor's opinion, injury No.1 was caused by a hard and blunt object and Injury Nos. 2, 3 and 4 were caused by a hard and sharp object and only injury No.5 was caused by a pointed sharp weapon. There is no explanation in respect of injury on the toe of the leg, but only one weapon has been seized by the police. It is also submitted that there are omissions and contradictions in the statements of witnesses and there is a lot of improvisation in the court statements which has been ignored by the trial Court. There is overwriting in the timings recorded in the arrest-memo, seizure-memo and Rojnamcha ( Daily Diary) for which no valid explanation was given by the Investigating Officer which makes the entire investigation doubtful. Hence the appellant is entitled to acquittal.

4. On the other hand, learned Govt. Advocate appearing for respondent/State opposes the aforesaid prayer by submitting that the minor omissions and contradictions are liable to be ignored. The FIR was lodged at the instance of the mother of the deceased against her son which has been established by examining the police personnel who recorded the FIR. The incident was witnessed by Praveen (P.W.1) and Santosh Vishwakarma (P.W.2) and there is no reason to disbelieve their testimony. The minor improvisation has rightly been ignored by the trial Court. The difference of timings in the seizure-memo, arrest-memo and rojnamcha does not make the entire case of the prosecution doubtful when there are other clinching evidence against the present appellant. Hence, the appeal is liable to be dismissed.

5. By way of an alternative submission, learned counsel for the appellant

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submits that the appellant and deceased were real brothers and the incident, if any, took place was in heat of passion and sudden provocation by the deceased. The appellant is in jail since last more than 13 years. He has lost his brother as well as his mother. He is the first offender and the sentence awarded to him is liable to be reduced from Life Imprisonment to the period already undergone.

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

6. Dehati Nalisi was registered to vide Exh. P/17 upon disclosure by Leelabai at Police Station Chandan Nagar, Indore at Crime No.0/2007 u/s. 302 of the IPC. Statement of Leelabai was recorded u/s. 161 of the Cr.P.C. and thereafter FIR was registered at Crime No.656/2007 against the appellant u/s. 302 of the IPC and u/s. 25(1-B)(b) of the Arms Act. The FIR was registered by Shiv Swaroop Singh, Head Constable (P.W.13). He states that on 18.6.2007 he was posted as Head Constable in the Police Station Chandan Nagar, Indore. He received information from the Telephone Operator - Alok of Arihant Hospital, Indore that Nana has been brought by his brother Jeevan at 8.30 in a dead condition and the Doctor has declared him dead. Then he recorded the 'Merg' at No.50/2007 u/s. 174 of the Cr.P.C. Thereafter, ASI Goyal, ASI Mishra and Constable Ramgopal went to the hospital which was recorded in Rojnamcha at No.1827 vide Exh. P/20. The SHO - Daulat Singh (P.W.14) after receiving the information about 'Merg' No.50/2007 reached Arihant Hospital and on the report of Leelabai he prepared Dehati Nalisi vide Exh. P/17 and sent the same to the Police Station through Constable Ramgopal on the basis of which Crime No.656/2007 was registered u/s. 302 of the IPC and Section 25(1-B((b) of the Arms Act and it contains the signature of Shiv Swaroop Singh. He prepared the spot map vide Exh. P/21, collected the pieces of floor tiles containing bloodstains vide Exh. P/11. Thereafter, he arrested the appellant vide Exh. P/4. He was interrogated in the presence of two witnesses which

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was recorded vide Exh. P/5. On his disclosure, the bloodstained knife of size 9" x 5.5" was recovered and the seizure-memo vide Exh. P/6 was prepared. He also recovered a bloodstained shirt, pant, Sandow 'Baniyan' vide seizure memo (Exh. P/7). Thereafter, he recorded the statement of Leelabai, Raghuveer and Santosh. He also recorded the statements of other witnesses viz. Mamta and Jitendra. Both the aforesaid witnesses were cross-examined by the defence counsel.

The dead body of the deceased was sent to the District Hospital, Indore for postmortem and the autopsy was conducted by Dr. Bharat Prakash (P.W.3) and according to him, five injuries were found on the body of the deceased. Injury No.1 was caused by a hard and blunt object, injury Nos. 2, 3 and 4 were caused by a hard and sharp object, and injury No.5 was caused by pointed long, hard, sharp and single-edged object and the deceased died as a result of multiple injuries. Dr was given a useless suggestion that injury No.1 could have been caused by falling and injury Nos. 2 to 5 could have been caused by falling from 10 ft. height with a knife in hand. Therefore, in view of the aforesaid report, the testimony of Dr. Bharat Prakash (P.W.3) the death of the deceased was homicidal in nature and there is no challenge to the aforesaid finding recorded by the trial Court, hence the same is accordingly affirmed.

The only issue that requires our consideration by this Court is, whether the appellant is liable to be convicted u/s. 302 of IPC on the basis of grounds taken in this appeal?

7. As stated above, the FIR was lodged at the instance of the mother of the deceased and the appellant - Leelabai. Before her examination in the court, she died. As per the statement of Ramgopal Verma (P.W.10), P.N. Goyal (P.W.11), and Daulat Singh (P.W.14), we do not doubt the registration of the FIR at the instance of Leelabai. In the FIR as well as in her statement recorded u/s. 161 of Cr.P.C. she disclosed that her younger son was sleeping and when she woke him up, due to which he got annoyed and thrown the

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stone ('Ludia') on her. Her elder son i.e. the present appellant became annoyed and stabbed him by means of a knife multiple times. In order to corroborate the aforesaid statement and the contents of the FIR, the prosecution has examined Praveen (P.W.1) and according to him, near about at 8 am. he was purchasing some goods from the grocery shop and he heard holler voice of the mother of the deceased and he rushed to the house and saw that the present appellant was carrying a knife in his hand and caught hold the hands and stabbed 2-3 times to deceased Nana @ Anil. Nana fell on the floor and started shouting. Thereafter, the appellant also shouted to save his brother. He and the appellant both took the deceased on a bicycle. On the way, they met Santosh (P.W.2) and shifted the deceased on the motorcycle and they all went to the hospital. He has specifically denied in his cross- examination that Jeevan (appellant) did not cause any injury to the deceased in his presence. The prosecution has examined Santosh (P.W.2) who has stated that he was starting his motorcycle, then Jeevan and another boy brought Nana @ Anil on the bicycle. He saw the injuries and the blood on the body. Since there was no auto-rickshaw available, then he took Nana to Arihant Hospital on his motorcycle. Thereafter, he has been declared hostile. He has admitted that he gave his statement to the police in which he had stated that Nana informed him that his brother Jeevan has stabbed him because he fought with the mother, but there is the omission to this statement in the police station for which he gave an explanation. But his first part of examination-in-chief establishes that he saw Nana in an injured condition along with Jeevan and Praveen (P.W.1) and took him to the Arihant Hospital. Therefore, there is corroboration and it establishes the presence of Jeevan and Praveen on the spot and also the injuries. To that extent, his deposition can be relied on.

Thereafter, the prosecution examined Smt. Mamta (P.W.5) who got the information about the incident from Leelabai and thereafter she went to the police station and the police obtained her signature. She has admitted her

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signature in 'Safina' form, 'Laash Panchayatnama' and thereafter the dead body was sent for postmortem. She was declared hostile, but in her cross- examination she has admitted that in the hospital Leelabai told her that Nana was sleeping in the morning and when she woke him, he got annoyed and threw the stone and thereafter Jeevan has stabbed him. Merely she is a closed relative, her deposition cannot be discarded. Jitendra (P.W.6) got an information from Sanju. Thereafter, he reached the police station and became a witness of 'Safina' form and 'Laash Panchayatnama'. Raghuveer (P.W.7) got the information about the incident from his son. The rest of the witnesses were examined as formal seizure witnesses who became part of the investigation. Therefore, on the basis of the statement of Praveen (P.W.1) and Santosh (P.W.2) and the evidence in continuity by Dr. Bharat Prakash (P.W.3), Bhanwar Singh (P.W.4) and Smt.Mamta (P.W.5), in the opinion of this Court, the appellant has rightly been held guilty for committing murder of his own younger brother Lala and accordingly, we affirm the said finding given by the learned trial Court.

8. The minor omissions, contradictions and improvisation in the statements are liable to be ignored in this case. The Investigating Officer has given an explanation for recording the timing in the Rojnamcha. The appellant was arrested at 12.05 hours vide Exh. P/4. His statement was recorded at 12.55 hours vide Exh. P/5. According to learned counsel for the appellant, the 'Wapsi Rojnamcha' was recorded at 12.05 hours. The aforesaid Rojnamcha was written by Daulat Singh (P.W.14) and according to which he went with ASI Goyal and ASI Mishra and Constable Ramgopal and after completing the procedure of seizure and recovery of articles and the arrest of Jeevan, they came back to the police station. This Rojnamcha is recorded at 12.05 hours whereas the arrest of the appellant is at 12.55 hours. Daulat Singh (P.W.14) has given an explanation that Constable Ramgopal came back to the police station at 12.05 hours and after registration of the FIR he again went to the spot. He has also admitted that he did not recover the stone

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('Ludia') from the spot on the basis of which the incident took place. It is correct that there is no valid explanation in respect of recording 'Wapsi Rojnamcha' at 12.05 hours prior to the arrest of the appellant . This could be an error in recording the timing, but which does not make the entire case of prosecution doubtful when there is the recovery of bloodstained knife and other articles. The witnesses have established the presence of the present appellant, one eye-witness has seen the incident. Two witnesses took the deceased in an injured condition to the hospital and the postmortem report. The appellant came up with a defence that the deceased was repairing the roof and fell with the knife in his hand. This defence appears to be unbelievable because no one would sustain injuries at three different places of his body by falling once with one knife. Hence, we affirm the findings recorded by the learned trial Court.

9. So far as culpable homicide not amounting to murder is concerned, it is correct that there was no previous enmity between the two brothers. The incident took place in a heat of passion due to sudden provocation. The younger of the appellant threw the stone to hit his mother and due to which the appellant became annoyed and caught hold of the hands of the deceased and stabbed him 3-4 times. The incident took place on a sudden provocation by the conduct of the deceased towards his mother without any premeditation. Therefore, we are of the opinion that this case clearly falls under Explanation 1 of Section 300 of the IPC. Explanation 4 of Section 300 of IPC is also attracts as it is a case of a sudden fight without premeditation. Therefore, it is a culpable homicide not amounting to murder. Hence the conviction of the appellant u/s. 302 of the IPC cannot be maintained.

10. 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:

"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:

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"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 a case of Stalin v. State, reported in (2020) 9 SCC 524 the Supreme Court of India has held that "11. As per Exception IV to Section 300 IPC, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage and not having acted in a cruel or unusual manner. In the present case, at the place of incident the beer was being served; all of them who participated in the beer party were friends; the starting of the incident is narrated by PW 3, as stated hereinabove. Therefore, in the facts and circumstances, culpable homicide cannot be said to be a murder within the definition of Section 300 IPC and, therefore, in the facts and circumstances of the case narrated hereinabove and the manner in which the incident started in a beer party, we are of the opinion that Section 302 IPC shall not be attracted.

12. Now, the next question which is posed for consideration of this Court is whether the case would fall under Section 304 Part II IPC? Considering the totality of the facts and circumstances of the case and more particularly that the accused inflicted the blow with a weapon like knife and he inflicted the injury on the deceased on the vital part of the body, it is to be

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presumed that causing such bodily injury was likely to cause the death. Therefore, the case would fall under Section 304 Part I IPC and not under Section 304 Part II IPC.

13. In view of the above and for the reasons stated above, the appeal is allowed in part. The impugned judgment [Stalin v. State, Criminal Appeal (MD) No. 122 of 2016, order dated 18-1-2017 (Mad)] and order passed by the High Court confirming the conviction of the accused for the offence punishable under Section 302 IPC is hereby modified from that of under Section 302 IPC to Section 304 Part I IPC. The accused is held guilty for the offence punishable under Section 304 Part I IPC and sentenced to undergo 8 years' RI with a fine of Rs 10,000 and, in default, to further undergo one year RI. The appeal is allowed to the aforesaid extent."

11. Accordingly, this appeal is partly allowed. The conviction of the appellant u/s. 302 of the IPC is set aside and he is convicted for an offence punishable u/s. 304 Part II of the IPC and sentenced to the period already undergone by maintaining the fine amount. The conviction of the appellant u/s. 25(1-B)(b) is maintained. The judgment dated 29.8.2008 passed by Sessions Judge, Indore in Sessions Trial No.278/2007 is hereby modified as stated above. He be released forthwith subject to payment of fine amount and if not required in any other cause. Record of the court below be sent forthwith with the copy of this order.

         ( VIVEK RUSIA )                                (SHAILENDRA SHUKLA)
             JUDGE.                                            JUDGE.
Alok/-

          Digitally signed by ALOK GARGAV
          Date: 2021.10.21 16:32:54 +05'30'