Santosh vs State Of M.P.
2021 Latest Caselaw 6604 MP

                                    -: 1 :-
                                                                CRA No.822/2009




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

                           CRA No. 822 OF 2009
Appellant.                      Santosh S/o. Narsingh Barela, Aged 32
                                years, Occupation : R/o. Village Baar Dewla,
                                Police Station Chenpur, at present R/o.
                                Village Sirwel, Police Station Bhagwanpura,
                                District Khargone.

                    Vs.

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

                       ***********************
           Shri Raman Singh Solanki, Advocate for the appellant.
     Shri Amit Singh Sisodia, 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 31.10.2008 passed by Third Additional Sessions Judge, Khargone, West Nimar in Sessions Trial No.90/2008 whereby he has been convicted u/s. 302 of the IPC and sentenced to undergo life imprisonment and to pay fine of Rs.100/- and in default of payment of fine amount, to further undergo One year additional RI. This appeal has been filed through Legal Aid Services Authority.

Facts of the case in short are as under:

2. As per prosecution story, the appellant and his wife - Surmi Bai were residing in a rented house of Gorelal (P.W.3) in Village Sirwel. Prior to that, they were residing in Khargone. They were engaged to work in the agricultural field of Gorelal. Sandeep (P.W.2) (minor) has started living with appellant - Santosh after the death of his parents. On 16.3.2008 before 5.00

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am. appellant, deceased Surmi Bai, Sandeep (P.W.2), Suresh (P.W.11) and Pinku (P.W.12) were sleeping in the house constructed in the agricultural field. In the mid of night Sandeep (P.W.2) got up from sleep to drink water and saw that appellant was quarreling with the deceased Surmi Bai. The appellant took out a 'Datua' (made from iron designed like hammer ) and gave four blows by means of Saria on the head of the deceased Surmi Bai and she could not utter a word and died. Thereafter, the appellant ran away towards the village. Thereafter, Pinki (P.W.12) ,Sandeep and Suresh also got up from sleep. They gave the information of the incident to Fatiya (P.W.1). Fatiya along with his younger brother Gorelal (P.W.3), son-in-law Dayaram (P.W.4) and other villages reached to the spot and found Surmi Bai lying dad near the Well with blood oozing from head. Fatiya (P.W.1) lodged the FIR in Police Station Bhagwanpura at 10.20 am. on 16.3.2008. The FIR was registered against the appellant u/s. 302 of the IPC (Exh. P/1) at Crime No. 73/2008. The matter was taken into investigation. The investigation was started by Sub Inspector S.S. Parihar (P.W.13). He prepared the 'Safina' form and recorded the statement of the witnesses. "Naksha Panchayatnama" was prepared on the spot vide Exh. P/4. The dead body of Surmi Bai was sent for postmortem vide Exh. P/14. Bloodstained soil and plain soil, bloodstained mattress, one pair of sleepers, etc. were seized from the spot. The appellant - Santosh was arrested vide Exh. P/8 and on his memorandum vide Exh. P/9 bloodstained 'Datua' was seized vide Exh. P/10. The seized articles were sent for FSL vide Exh. P/17 to FSL, Rau, District Indore from where the FSL report vide Exh. P/17 was received. The police have recorded the statements of the witnesses - Gorelal (P.W.3), Dayaram (P.W.4), Bhaga (P.W.6), Suresh (P.W.11), Pinki (P.W.12), Sandeep (P.W.2), Fatiya (P.W.1), Radha, Thumkibai, Jadia (P.W.5) and Velja u/s. 161 of the Cr.P.C. The autopsy was conducted by Dr. K.K. Neema (P.W.14), Block Medical Officer of Community Health Center, Bhagwanpur and according to him the deceased died due to Coma because of the injury in her brain. Dr. Neema has given

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the postmortem report vide Exh. P/19. Upon completion of the investigation, charge-sheet was filed before the Judicial Magistrate, First Class, who committed the trial to the Sessions Judge as the charge u/s. 302 of the IPC was framed against the appellant.

In order to prove the charge, the prosecution has examined 14 witnesses as P.W.1 to P.W.14 and got exhibited 18 documents as Exh. P/1 to P/18. In defence, the appellant did not examine any witness but pleaded false implication and at his instance, Sandeep was marked as defence witness (D.W.1).

After evaluating the evidence came on record, learned Addl. Sessions Judge has 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. The prosecution has examined Dr. K.K. Neema as P.W.14 who was posted as Block Medical Officer in Community Health Center, Bhagwanpura where the deceased was brought. He found three injuries out of which two were on the head and one was in the wrist. He found the following injuries :

(i) LW over Head Frontal Region, Size - 2" x 1" Bone broken, brain material exposed. Lacerated, depth - 2 ½".

(ii) LW over frontal region, centrally situated. Skull bone broken, Brain exposed, Size - 2" x 3/4", Below L.W depressed area - 5" length, 2" breath extending from Frontal Region Lt. side to bridge nose, Second depressed area from Parietal Region. Rt. side near to midline extending from Parietal Region to Lt. neck - 4" x 2" L.W. over Parietal Region, 2" x 1" Brain material exposed and lacerated.

(iii) Lt. FA Post Lat. aspect. Abrasion mark 2" x 3/4" size, broken, Glass 'Chudi' marks over wrist and lower FA.

According to him, the deceased died due to the brain injuries. There is no challenge to the findings recorded by the learned trial Court in this appeal in respect of the injuries and the cause of death , which is homicid. We have also examined the postmortem report and we have no reason to disbelieve

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the testimony of the Doctor and autopsy report,accordingly, we affirm the findings recorded by the trial Court that the death of Surmi Bai was homicidal in nature.

Now, the only issue which requires our consideration is, whether the appellant has rightly been convicted u/s. 302 of the IPC or not?

4. In order to establish the charge u/s. 302 of the IPC, the prosecution has examined Sandeep (P.W.2) who was residing with appellant and the deceased and he was 8 years of age at the time of the incident. After recording satisfaction about his capability to give evidence in the Court, his examination-in-chief was started. According to him, 5 months ago, on the date of the incident, he was sleeping in the house of accused along with Pinki (P.W.12) and Suresh (P.W.11). He woke up in the night to drink water and saw that the appellant was beating on the head of the deceased by means of an iron rod. There was a fight between the appellant and his wife - Surmi Bai earlier in the night. Thereafter the appellant ran away. He was cross- examined at length but remained stick to his deposition.

The prosecution has also examined Suresh - son of the deceased and appellant as P.W.11 who was 10 years of age. Upon recording the satisfaction about his capability of giving evidence, he was examined. He has not supported the case of prosecution but only confirmed that he was sleeping in the house and in the morning he found his mother lying dead and his father was not in the house. To that extent, his evidence is admissible and can be considered. The prosecution has also examined Pinki as P.W.12. She has supported the case of prosecution only to the extent that she found her mother lying dead and her father was not in the house.

Fatiya as P.W.1 was informed about the incident by Suresh and he reached to the spot along with Beljiya - Surpanch, brother - Gorelal and other villagers and found Surmi Bai lying dead with a bleeding from her head. Santosh was not found on the spot. Gorelal (P.W.3) also supported the case of prosecution to that extent only. Dayaram (P.W.4) who got the

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information from Pinki (P.W.12) about the incident and he reached to the spot and found Surmi Bai lying dead. Likewise, Jadiya (P.W.5) also supported the case of prosecution. But Bhaga (P.W.6) has turned hostile but he saw the deceased lying dead with an injury on her head. The seizure witnesses - Som Singh (P.W.7), Usman Gani (P.W.8), Mehtab (P.W.9) and Jagdish (P.W.10) have turned hostile and not supported the case of prosecution, but they have admitted their signatures.

As per the evidence of Sandeep (P.W.2) and Suresh (P.W.11), they all were sleeping in the house along with the deceased and appellant after taking meals. In the night Sandeep woke up and saw the appellant assaulting his wife Surmi Bai by means of iron rod and she died on the spot. Thereafter, Suresh and Pinki also woke up and they saw their mother lying dead but appellant - Santosh was not there in the house. The aforesaid version has been corroborated by other prosecution witnesses who saw the deceased in injured condition and they did not see the appellant in the house. The appellant has not come with an explanation or defence as to why he was not there in the house on the date of incident. There is also corroboration by the medical evidence about the injuries and the cause of death. Therefore, the evidence of Sandeep (P.W.2) cannot be discarded who saw the appellant hitting his wife by means of an iron rod and which has resulted into death on the spot. The only defence taken by the learned counsel for the appellant is that there was no reason for the appellant to commit murder of his wife. Sandeep (P.W.2) in his statement has stated that there was a dispute going on between the husband and wife. Dayaram (P.W.4) has stated that Pinki and Radha told him that on the date of incident the appellant had consumed the liquor from on the income from the sale of gram and he was demanding more gram from his wife for consumption of liquor. Suresh (P.W.11) has admitted that on the date of incident, they did not have any dinner because of the dispute between their father and mother. Therefore, it is not a case of murder without any motive. The police has recovered the iron object by

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which the deceased was assaulted and in which bloodstains were found and as per Doctor's opinion, the injuries were caused by hard and blunt object. Iron rod ('saria' or 'Datua') was produced before the Court as Article 'A' and as per FSL report, bloodstains were found in it. Therefore, the minor contradictions that it was an iron rod or 'Datua', no benefit goes in favour of the appellant.

5. By way of an alternate submission, learned counsel for the appellant submited that if the appellant has been held guilty in committing murder of his wife, then this case falls under Explanation 1 of Section 300 of the IPC and accordingly, he is liable to be punished u/s. 304 Part II of the IPC. After the death of the mother, no one is there in the family to look after the minor children. The appellant is in jail since the date of incident and it is now more than 13 years. Now the children have reached to the age of majority. The appellant is not the habitual offender. The dispute arose between husband and wife in respect of consumption of liquor, therefore, in heat and passion, on a provocation by the deceased, the appellant has assaulted her, hence the sentenced be reduced from Life Imprisonment to 10 years.

6. As per evidence of Fatiya (P.W.1), Sandeep (P.W.2), Suresh (P.W.11) and Pinki (P.W.12), there was a dispute between the husband and wife in respect of sale of gram and consumption of liquor and they had no dinner because of the said dispute. In the night, the dispute started between both of them. Therefore, the appellant had a knowledge that this assault by him is likely to cause death, but he had no intention to cause death to his wife. The dispute arose between them out of sudden quarrel, hence, it falls under Explanation 1 of Section 300 of the IPC. 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.

7. 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

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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 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

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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."

8. 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 16:33:37 +05'30'