Sukhram & Others vs The State Of M.P.
2021 Latest Caselaw 4926 MP

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 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.610/2005
1      Sukhram S/o Babulal Maali, aged -45
       years
2      Ramdas S/o Babulal Maali, aged-32
       years                             Appellants
3      Mukesh S/o Hariprasad Malli, aged 22
       years
4      Maniram S/o Babulal Maali, aged 30
       years
                                    V/s
       State of Madhya Pradesh               through
       Police-Station Khategaon,             District Respondent
       Dewas (M.P.)


       Shri Vivek Singh, learned counsel for the appellants.
       Shri Amit Singh Sisodiya learned Government Advocate for the
respondent/State.


                           JUDGMENT

(Delivered on 2nd September, 2021) PER VIVEK RUSIA, J:-

This criminal appeal is filed under Section 374 of Cr.P.C. arises out of the judgment and order dated 28.05.2005 passed by the Additional Session Judge, Kannod, District Dewas by which appellants have been convicted and sentenced in the manner stated below:

Under Section 148 of IPC 3 years rigorous imprisonment with a fine of Rs. 5000/-, in default thereof, to further undergo 1 years, R.I.and Under Section 302/149 of IPC Life Imprisonment with a fine of Rs. 15,000/-, in default thereof, to further undergo 3 years, R.I. (2). The case of the prosecution, in brief, is as follows: -

On 26.04.2004, complainant/ Jagdish S/o Ramlal Vishnoi lodged

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an FIR at Police Station- Khategaon, District Dewas against Sukhram, Maniram, Ramdas, Rajesh and Mukesh disclosing the commission of an offence that today in the morning, he along with Govind Yadav, Golu @ Daulat Singh Rajput and Bharat Kachhi (deceased) went in two motorcycles to the agriculture field of Bharat Kachhi. Accused Sukhram, Maniram, Ramdas, Rajesh and Mukesh were already present there and after seeing Bharat they started abusing him with filthy language as to why he came to this place. Maniram was carrying Tangiya, Sukhram was carrying Axe, Ramdas and Mukesh were carrying a stick in their hand. In furtherance of common intention, they started fighting with Bharat, upon objecting they told them to leave the place. They took Bharat inside the field. All five accused surrounded the Bharat and one of them broke the petrol tank of his motorcycle by Tangiya and sprinkled the petrol and thrown the motorcycle upon Bharat. Maniram took out the matchbox from the pocket and blazed the motorcycle and Bharat. He succumbed to the burn injuries on the spot.

After registration of Merg the Police registered an FIR under Section 147, 148, 148, 201 and 302 of I.P.C. vide (Ex. P/12). The police reached the spot with Jagdish Vishnoi and filled the crime detail form and also prepared a spot map at about 11:30 (Ex.P/15). A dead body was found in the agriculture field of Babulal Maali in burn condition along with motorcycle. A dead body was sent for the postmortem. After postmortem, a report was submitted Ex. P/16 in which the cause of death was mentioned as "combined effect of neurogenic shock & asphyxia due to inhalation of gaseous products of burn". The Police recorded the statement of Jagdish, Harishankar, Vijay Kushwaha, Mangilal and Govind under section 161 of Cr.P.C.. The Police seized the motorcycle bearing registration No.MP-13-JA- 6135 in 75% burn condition, two pairs of sleepers and one wallet with burn currency from the spot vide Ex. P/3.

Sukhram was arrested on 26.07.2004 and a Tangiya was recovered from him. Ramdas and Mukesh were arrested on 26.07.2004

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and sticks were recovered from their possession. From Maniram one matchbox was recovered and finally, a stick was recovered from the possession of Rajesh.

After completing the investigation, the police filed a charge sheet against four accused Sukhram, Ramdas, Mukesh and Maniram. Since Rajesh was a juvenile hence Final Report ( Chalan) was filed before the Juvenile court against him The trial against 4 accused / appellants was committed to the Sessions Court and on 04.01.2005 charges were framed under sections 148, 302/149 and 294 of I.P.C. against all the accused persons. They denied the charges and pleaded for the trial.

(3). In order to prove its case, the prosecution has examined as many as 14 witnesses namely Harishankar (PW-1), Vijay (PW-2), Gajendra (PW-3), Rewaram (PW-4), Raghuveer (PW-5), Sunderlal (PW-6), Mangilal (PW-7), Balram (PW-8), Narayan Singh (PW-9), Golu @ Daulat Singh (PW-10), Jagdish (PW-11), Govind (PW-12), Baldevsingh Thakur (PW-13) and Dr. Suryawanshi (PW-14). (4). Harishankar (PW-1) has stated that on 26.07.2004, he was going Khategaon to Sukhedi and heard the voice, then he saw that five persons namely Sukhram, Maniram, Ramdas, Rajesh and Mukesh were assaulting the Bharat, thereafter they took the petrol from the motorcycle and blazed him. Thereafter, he fled away from the spot and later become unconscious.

(5). Shri Vivek Singh, learned counsel for the appellants submitted that Harishankar (PW-1) testimony is unacceptable because he is the maternal uncle of deceased Bharat and he did not report the incident to the father of the deceased immediately, therefore, his presence on the spot is doubtful. It is further submitted by the learned counsel that Jagdish who lodged the FIR has turned hostile. P.W.-10 Golu @ Daulat Singh has also not supported the case of prosecution. The police have failed to find out the actual owner of the motorcycle found on the spot. Dr Prtabhakar Tiwari who conducted the autopsy of the Bharat did not appear in the witness box to prove the cause of death.

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There are lots of commissions and contradictions in the evidence which have been overlooked by the learned Additional Session Judge. Because of the dispute in respect of the agricultural land between the father of the deceased and Babulal Mali, the appellants have falsely been implicated.

(6). Learned Government Advocate has argued in favour of the judgment of conviction of appellants and prayed for dismissal of the criminal appeal.

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

(7). In cross-examination upon asking the question, P.W.-1 has answered that when he was running from the spot, Jagdish Vishnoi met him on the road, and he also saw Govind and Golu running from the spot towards Khategaon. Jagdish and Vishnu asked about the Bharat from him. Upon asking these questions in cross-examination, the presence of the P.W.-1 on the spot has been established by the defence counsel. Hence the P.W.-1 cannot be termed as an unreliable witness. (8). Prosecution has examined Gajendra (PW-3) as the witness of Safina from, Naksha Panchnama and Seizure memo.Rebaram (PW-4) has established the seizure of Tangiya and the stick from the possession of the accused persons. In cross-examination, he has admitted that Sukhram and his son were in possession of the agriculture field, where the dead body was found. Raghuveer (PW-5) and Sunderlal (PW-6) have established the seizure of matchbox from Maniram.

(9). Mangilal (PW-7) father of the deceased has stated that between 09:00 to 09:30, Golu, Munna Vishnoi and Govind Hammal informed him about the murder of his son by these accused persons. He reached the spot and found the dead body of his son Bharat thereafter report was lodged by the Jagdish Vishnoi. According to him, he purchased the land from Babulal i.e. father of the accused persons but the accused were not in possession on the date of the incident. (10). P.W.-10 Golu @ Daulat Singh has deposed that he went to the

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agriculture field alongwith Bharat, Munna and Govind. After seeing Bharat coming inside the field, Sukhram, Maniram, Ramdas, Rajesh and Mukesh started abusing and assaulting him. After that, they all have taken the Bharat inside the field. He has identified all the accused in court. According to him, Maniram set the Bharat on fire and due to which he died. His extermination-in-chief was recorded on 23.02.2005 but cross-examination was done on 05.03.2005 but he has completely turned hostile and stated that neither he was on the spot, nor he witnessed the incident. It appears that between 23.2.2005 to 5.3.2002 he has been managed by the accused persons; hence his examination- in-chief cannot be discarded in its entirety. Likewise, Jagdish (PW-

11), who lodged the report has turned also hostile. In cross- examination, he has admitted his signature in FIR (Ex.P.12). (11). P.W.-12 Govind has fully supported the case of the prosecution. According to him, after fleeing from the spot, he, Golu and Jagdish reached Khategaon and informed the incident to Mangilal father of the deceased. He is a reliable witness and there is no reason to disbelieve him in cross-examination he remained to stick to his deposition. The defence has failed to take out anything from him by way of cross- examination.

(12). The prosecution has examined Baldevsingh Thakur (PW-13), who recorded the FIR and conducted the investigation. Suryawanshi (PW-14) has identified the signature of Dr. Prabhakar Tiwari, who conducted the postmortem of the deceased.

(13). In the accused statement recorded under section 313 of Cr.P.C., all the accused pleaded that the father of Bharat i.e. Mangilal got registered the sale deed from Babulal due to which they have falsely been implicated in the present case.

(14). So far as the cause of death is concerned, there is no challenge to it by the counsel for the appellants and as per postmortem, the deceased died due to burn injuries. It is also not in dispute that, his dead body was found in burn condition along with his motorcycle on the spot, therefore, the death of the Bharat is homicidal and findings to

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that effect recorded by the trial court are hereby affirmed. From the evidence of Golu @ Daulatram (PW-10), Govind (PW-12), Harishankar (PW-1), and Mangilal (PW-7), it is evident that accused Maniram and Sukhram by means of Axe and Tangiya, Mukesh and Ramdas by means of stick forming an unlawful assembly and in furtherance to the common intention have assaulted the Bharat and thereafter, the Maniram took out the petrol and set the Bharat and motorcycle into the fire. The trial court has not committed any error while holding that this offence comes under the category of homicidal. Minor omission and contradictions in the statement of witnesses are liable to be ignored. No prejudice has been caused by non-examining the doctor who was not available due to sickness. Dr. Suryawanshi (PW-12) has identified the signature of Dr. Prabhakar Tiwari. The photographs of the deceased and motorcycle have been produced in the trial and it reveals that Bharat died because of burn injuries. (15). In the record of lower court received from the trial court the documents pertaining to the dispute between the father of the deceased and Babulal in the court of Tehsildar in respect of said land i.e. Khasra No.160, where this offence was committed are available. The dead body of Bharat was found in the agriculture field of Babubal, who is the father of Sukhram and Ramdas and Maniram. All these documents were not exhibited by the prosecution but it can be presumed that they become annoyed while seeing the Bharat entering in the field. Since dispute was already going on before the Executive Magistrate under Section 145 of C.P.C., therefore, they have immediately reacted after seeing Bharat in the agriculture field. They were already carrying Axe and Tangiya and stick and started to assault him. They took him in the field and set him on fire.

(16). The incident in question happened all of a sudden without any premeditation, that there was no common intention or preplanning to commit the offence by these appellants. Since the Bharat entered their agriculture field without there being prior notice and it did provoke them to assault him. There cannot be any premeditation to commit the

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offence as they had no information that Bharat is going to visit the agriculture field. As per the postmortem report, Bharat died due to burn injuries and three fingers were found amputated by a sharp cutting object . There is recovery of Tangiya from Sukhram and match box from Maniram. As per version in FIR no one has been named who gave a blow by Tangiya in the petrol tank and due to which petrol came out and Maniram set the motorcycle and Bharat into the fire. There is no specific allegation against Ramdas and Mukesh causing any injury by means of Lathi . In police statement the all the witness has made allegation of assaulting Bharta by all the appellants and named Maniram putting the Bharat in to fire. In courts statements they have narrated specific act attributable to appellants.

All the appellants used the criminal force to assault the Bharat by means of Tangiya and Lathi and there was amputation of three fingers but he did not summed to it, hence at the most they are liable to be punished under section 324/149 of I.P.C. The appellants have rightly been convicted under section 148 of the I.P.C for using force by forming unlawful assembly in prosecution of the common object. (17). Now the issue which requires our consideration as to whether appellants have rightly been convicted under section 302/ 149 of I.P.C. ?

The Apex Court in the case of Ananta Kamliya vs. State of West Bengal reported in 2020 (1) Supreme 55 in which conviction u/s 302 IPC was converted into 304 Part-I of the IPC and sentenced to undergo imprisonment for 10 years in a case of death because of the injury caused by the accused on the head. As per the facts of the case accused was not carrying a weapon with him. He took out a lathi which was lying there and caused injury on the head of the deceased. Accordingly, there does not appear any intention on the part of the accused to cause very injury which ultimately led to the death of the deceased. There does not appear to be any pre-mediation or intention to kill the deceased. The death resulted due to the injury in qura, hence the case would fall under exception 4 to section 300. In the case of

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Ambalal Sarabhai Enterprise Ltd. vs. Ks Infraspace Llp Ltd. and another 2020 (1) Supreme 57 because of the sudden fight and absence of pre-meditation, the act committed on the heat of passion the conviction u/s 302 IPC has been converted into 304 Part-II IPC, section 300 exception-4 by the Apex Court. In the case of Smt.Sandhya Jhadav Vs. the State of Maharashtra - 2006 AIR SCW 1678 the offence has been converted u/s 304 Part-II of the IPC instead of section 302 IPC because of the solitary blow causing death after considering the factual situation. Likewise, in the case of Shambhoo Singh vs. State of Rajasthan- AIR 2008 SC 3200 again due to the sudden quarrel incident taken place out of the land dispute the conviction of the accused for murder has been altered to conviction u/s 304 Part-I IPC. The Division Bench of this Court in Antulal vs. State of M.P, Cri. Appeal No.1466/2010 decided on 3.8.2019 by placing the reliance over the judgment passed by the Apex Court in the case of Arjun vs. State of Chhatisgarh- (2017) 3 SCC 247, the conviction has been altered from 302 to 304 Part-I IPC. The Hon'ble Supreme Court has held in Gurpal Singh v. State of Punjab, AIR 2017 SC 471. Para 10 of the judgement reads thus:

"10. However, in the singular facts of the case and noticing in particular, the progression of events culminating in the tragic incident, we are inclined to reduce the sentence awarded to him. Incidentally, the occurrence is of the year 2004 and meanwhile twelve years have elapsed. Further, having regard to the root cause of the incident and the events that sequentially unfolded thereafter, we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger so much so that he was deprived of his power of self- control and being drawn in a web of action reflexes, fired at the deceased and the injured, who were within his sight. The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof. Be that as it may, on an overall consideration of the fact situation and also the time lag in between, we are of the view that the

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conviction of the appellant ought to be moderated to one under Sections 304 Part 1 IPC and 307 IPC. Further, considering the facts of the case in particular, according to us, it would meet the ends of justice, if the sentence for the offences is reduced to the period already undergone. We order accordingly."

The Hon'ble Supreme Court held in Arjun and Anr. Vs. 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

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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'."

(18). The Hon'ble Supreme Court has laid down a law in the case of Prabhakar Vithal Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if assault on deceased could be said to be on ac- count of sudden fight without pre-meditation, in heat of passion and upon a sudden quarrel, Conviction of the appellant cannot be sustained under S. 302 and altered to one under Section 304 Part-I of IPC.

The Hon'ble Apex Court laid down in Madhavan and Ors. Vs. State of Tamil Nadu, AIR 2017 SC 3847 that:

"8. Notably, the High Court has not considered the issue of quantum of sentence at all, but mechanically proceeded to affirm the sentence awarded by the Trial Court. From the factual position, which has emerged from the record, it is noticed that there was a preexisting property dispute between the two families. The incident in question happened all of a sudden without any premeditation after PW1 questioned the appellants about their behavior. It was a free fight between the two family members. Both sides suffered injuries during the altercation. The fatal injury caused to Periyasamy was by the use of thadi (wooden log) which was easily available on the spot. The appellants, on their own, immediately reported the matter to the local police alleging that the complainant party was the

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aggressor. No antecedent or involvement in any other criminal case has been reported against the appellants. Taking oral view of the matter, therefore, we find force in the argument of the appellants that the quantum of sentence is excessive.

(19). In a recent judgment passed the Hon'ble Apex court in case of Lavghanbhai Vs. State of Gujrat reported in [2019(3) MPLJ (Cri)(SC) 49] has laid down the parameters which are to be taken into consideration while deciding the question as to a whether the case falls under sec 302 or sec.304 Part II of IPC .

This Court in the case of Dhirendra Kumar versus State of Uttarakhand [ 2015 (3) SCALE 30] has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or 304 IPC, which are the following:

(a) The circumstances in which the incident took place;

(b) The nature of weapon used;

(c) Whether the weapon was carried or was taken from the spot;

(d) Whether the assault was aimed on vital part of body;

(e) The amount of the force used.

(f) Whether the deceased participated in the sudden fight;

(g) Whether there was any previous enmity;

(h) Whether there was any sudden provocation.

(i) Whether the attack was in the heat of passion; and

(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner. Keeping in view the aforesaid factors it becomes evident that the case of the appellant would fall under Section 304 IPC as the incident took place due to a sudden altercation which was a result of delay in preparing lunch by the deceased. The appellant picked up a wooden object and hit the de- ceased. The medical evidence shows that not much force was used in in- flicting blow to the deceased. The prosecution has not set up any case sug- gesting that relationship between the husband and wife was not cordial,otherwise. Manifestly, the incident took place due to sudden provo- cation and in a heat of passion the appellant had struck a blow on his wife, without taking any undue advantage. We are, therefore, of the opinion that it was an offence which would be covered by Section 304 Part-II IPC and not 302 IPC.

(20). In this case only Maniram broke the petrol tank of motorcycle and throw up over the Bharat due to which petrol came over him and thereafter he took out matchbox from his pocket and put them in to fire . Other three appellants did not play any active role in this hence only Maniram is liable to be convicted under section 304

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Part-I of I.P.C. All the appellants armed with Tangiya, Axe and stick and assaulted Bharat due to which he sustained injury. As per postmortem report his three fingers were found amputated by means of Axe, which was on the hand of Sukhram, therefore, Sukhram has committed offence under section 326 of I.P.C. As per postmortem report no other grievous injuries were found on the person of the deceased except burn injuries. Thus, Ramdas and Mukesh are liable to be convicted under section 323/34 of I.P.C. and sentence 6 months R.I. with fine of Rs. 500/-.

In view of the above discussion and verdicts of the apex court, the criminal appeal is partly allowed. So far as the culpability of all the appellants No.1 to 4 are concerned, they are convicted under section 148 I.P.C. and sentenced to undergo 1 year RI with fine of Rs.3000/- each, and two months additional RI in default nonpayment of fine.

Appellant Sukhram is convicted 326/149 I.P.C. and sentenced undergo 2 year RI with fine of Rs. 3000/- each and two months additional RI in default nonpayment of fine. All the sentences shall run concurrently. Appellant No. 4 Maniram also is hereby convicted under section 304 Part II of IPC, instead of Section 302 of IPC and accordingly sentenced to the period of 10 years RI with a fine of Rs.10,000/-.

Appellant No.1 and 2 Sukhram and Maniram be released from the jail if not required in any other crime. The appellants No.2 and 3 who are on bail, hence their bail bonds stand cancelled and they are directed to surrender to undergo remaining sentence, if they have not already undergone .

Criminal appeal is partly allowed.

Let a record of the trial court be sent back along with judgment for compliance of the above sentence part .

               ( VIVEK RUSIA )                         ( SHAILENDRA SHUKLA )
                   JUDGE                                      JUDGE

               praveen/-

Digitally signed by PRAVEEN
NAYAK
Date: 2021.09.02 17:32:41
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