Pradeep Kumravat vs State Of M.P.
2021 Latest Caselaw 6602 MP

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                                                               CRA No.571/2009




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

                           CRA No. 571 OF 2009
Appellant.                      Pradeep S/o. Ramchandra Kumravat, Aged
                                28 years, Occupation : Driver, R/o. Dubey
                                Colony, Padamkund Chowki,
                                District Khandwa

                   Vs.

Respondent.                     State of M.P. through P.S. Barud,
                                District Khargone.

                      ***********************
              Shri S.K. Meena, Advocate for the appellant.
      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 judgment dated 23.4.2009 passed by First Additional Sessions Judge, Khargone, West Nimar in Sessions Trial No.2/2009 whereby he has been convicted u/s. 302 of the IPC and sentenced to undergo life imprisonment and to pay fine of Rs.500/- and in default of payment of fine amount, to further undergo six months additional RI.

Facts of the case in short are as under:

2. As per prosecution story, on 12.10.2008 deceased Ramchandra was working in his agricultural field situated at Village Barud. Present appellant

- Pradeep (younger son of Ramchandra ) came there from Khandwa along with Ramesh (son of deceased - Ramchandra) at 4.00 hours and started abusing his father by alleging that he has sold the entire land. When Ramchandra objected to it, then he started beating him by means of kicks and stick. The deceased sustained injuries in his head, left ear, back and

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both hands. The incident was witnessed by Ramlal, Bholuram, Salagram (P.W.3), Goriya and Maqsood. They all started shouting then Pradeep ran away from the spot. Salagram, Ramlal and Jafar (P.W.1) took Ramchandra to Police Station Barud and where he lodged the FIR (Exh. P/9). Murlidhar - Head Constable has registered the FIR u/s. 294, 323, 506 of the IPC. Ramchandra was sent to the District Hospital, Khargone for medical examination. He was examined by Dr. G.S. Rai (P.W.7) and admitted him in the Surgical Ward. During treatment Ramchandra died. The information was sent to the Police Station Barud about the death of Ramchandra on 12.10.2008 at about 9.00 in the night. The said information was recorded vide 'Merg' No.136/2008 in Police Chowki and the matter was taken for investigation and thereafter it was sent to the Police Station Barud where the same was registered as 'Merg' No.24/2008 by Sirildas, SHO (P.W.10). The SHO started the investigation and added the charge u/s. 302 of the IPC in the FIR. The appellant was arrested vide Exh. P/11. His memorandum u/s. 27 of the Evidence Act was recorded vide Exh. P/12 and according to which the stick used in the offence was seized vide seizure memo (Exh. P/13). The police prepared 'Safina' form and 'Naksha Mouka Panchnama' in the presence of witnesses. The opinion was sought from the Doctor. The autopsy was conducted by Dr. Chetan Pathaute (P.W.8) and as per his report (Exh. P/8), the cause of death was cardio respiratory arrest due to head injury (sub dural hemorrhage) caused by hard and blunt object. After recording the statement u/s. 161 of Cr.P.C. Of the witnesses and on completion of the investigation, the prosecution has filed the charge-sheet before the Judicial Magistrate, First Class who committed the trial to the Sessions Judge. Vide order dated 19.12.2008 learned Addl. Sessions Judge framed the charge u/s. 294, 506-B and 302 of the IPC against the appellant. The appellant denied the charges and pleaded for trial.

In order to prove the charges, the prosecution has examined 10 witnesses as P.W.1 to P.W.10 and got exhibited 15 documents as Exh. P/1 to

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P/15. In defence, the appellant did not examine any witness.

After evaluating the evidence came on record, learned Addl. Sessions Judge has discharged the appellant from offences u/s. 294 and 506-B of the IPC but convicted him u/s. 302 of the IPC and sentenced him, as stated above, hence the present appeal before this Court.

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

3. As per undisputed facts, the appellant is son of the deceased who came from Khandwa on the spot on 12.10.2008 and started abusing his father that he has sold the entire land and disbursed the money. When he objected to it, the appellant started beating him by means of stick. The incident was witnessed by Ramlal, Bholuram, Salagram, Goriya and Maqsood, out of which, the prosecution has examined only one Jafar as P.W.1 who has supported the case of prosecution only in respect of death of Ramchandra and he was taken to the District Hospital, Khargone and also about the injuries sustained by the deceased on his head. Rauf (P.W.2) has also not supported the case of prosecution. Salagram (P.W.3) has only deposed that he took Ramchandra to the Hopsital. Dinesh (P.W.4) who is also a son of the deceased and elder brother of the present appellant has also not supported the case of prosecution. The wife of the deceased Ramchandra

- Leelabai has been examined as P.W.5 who has stated that she came to know that her husband has been killed by the present appellant. Kamlabai (P.W.6) has turned hostile.

4. In order to establish the injuries, the prosecution has examined Dr. G.S. Rai, Medical Officer as P.W.7 and according to him, on 12.10.2008 Constable Kailash brought Ramchandra in an injured condition. He found multiple injuries, abrasions with swelling and pain in the chest. Ramchandra was admitted in the surgical ward. Dr. Chetan Pathaute who conducted the autopsy has been examined as P.W.8 and according to him the deceased was 75 years of age, swelling on the front parietal region, fracture in 5 th, 6th and

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7th ribs. According to him the case of death was head injury.

Murlidhar, Head Constable who has been examined as P.W.9 was posted in the Police Station Barud. According to him, Ramchandra himself came to the Police Station and lodged the report. He had registered the case u/s. 294, 323 and 506 of the IPC. According to him, the appellant was annoyed with Ramchandra due to sell of land of his the share and he assaulted him by means of stick. Sirildas, SHO who has registered the FIR has supported the case of prosecution. The prosecution has examined other witnesses also but none of them has supported the case of prosecution. The only material available against the appellant is the FIR registered by the deceased himself and thereafter he died. In this FIR, the deceased did not allege that the appellant has assaulted him with an intention to kill him. He was annoyed because he and his brother were not given any share in the property. There is thumb impression of Ramchandra in the the FIR and the appellant has not challenged the FIR registered by Murlidhar (P.W.9). He was confronted to any illegality in registration of FIR against him . He did not come with any defence as to why his father has lodged the FIR against him. Therefore, we have no reason to discard the evidence of Murlidhar (P.W.9) who registered the FIR at the instance of deceased against the appellant. Initially the FIR was registered u/s. 294, 323 and 506-B of the IPC. At the time of incident, the deceased was 75 years of age. As per MLC multiple abrasions were found, there was swelling and tenderness on the back and chest caused by hard and blunt object. No document pertaining to the treatment given to the deceased after referring to the Surgical Ward has been collected by the police. The doctor has not given any definite opinion as to whether the death was homicidal or accidental. sub dural hemorrhage was the only cause of death and as per allegations levelled against the appellant in the FIR the appellant did not cause the injury with an intention to kill the deceased. Therefore, the appellant has wrongly been punished u/s. 302 of the IPC whereas the offence falls under Explanation 4 of Section 300

CRA No.571/2009

of the IPC. The appellant is liable to be punished u/s. 304 Part II of the IPC because has assaulted the deceased with a knowledge that it is likely to cause death but without any intention to cause death or such a bodily injury as it is likely to cause death. Hence, the sentence awarded to the appellant u/s. 302 of the IPC deserves to be converted into offence u/s. 304 Part II of the IPC.

5. 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:

"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

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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 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."

6. 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 undergo 10 years RI instead of life imprisonment. He is in custody since his date of arrest and he must have completed the ten years' sentence. He be released forthwith if not required in any other cause. Record of court below be sent forth with.

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

           Digitally signed by ALOK GARGAV
           Date: 2021.10.21 16:34:12 +05'30'