Jagdish And 2 Ors. vs The State Of Madhya Pradesh
2022 Latest Caselaw 5098 MP

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                                                        CRA No. 479/2012



     HIGH COURT OF MADHYA PRADESH : BENCH INDORE
         BEFORE HON'BLE SHRI JUSTICE VIVEK RUSIA &
        HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

                 CRIMINAL APPEAL No. 479 of 2012

     Between:-
   JAGDISH AND 2 ORS. S/O GOMAJI SIRVI , AGED ABOUT 38
1.
   YEARS, GRAM BADGYAR TEH. KUKSHI (MADHYA PRADESH)
   SANJAY S/O JAGDISH SIRVI , AGED ABOUT 22 YEARS, GRAM
2.
   BADGYAR, TEH. KUKSHI (MADHYA PRADESH)
   CHHOTU @ MAHESH S/O JAGDISH SIRVI , AGED ABOUT 20
3.
   YEARS, GRAM BADGYAR, TEH. KUKSHI (MADHYA PRADESH)
                                                   .....APPELLANTS

     AND

     THE STATE OF MADHYA PRADESH GOVT. THRU. P.S. KUKSHI
     (MADHYA PRADESH)
                                                   .....RESPONDENT


         Shri S.K. Vyas, learned Senior Advocate with Shri Aniruddh
                 Gokhale, Advocate for the appellants.

           Shri Kamal Kumar Tiwari, learned Govt. Advocate for
                        respondent/State.

                            JUDGMENT

(Delivered on 08.04.2022) Per Vivek Rusia, J :

This is an appeal filed by the appellants against the judgment dated 10.4.2012 passed by Second Addl. Sessions Judge (Fast Track), Kukshi, District Dhar in S.T. No.88/2011 whereby they have been convicted u/s. 302/34 of the IPC and sentenced to undergo life imprisonment and to pay a fine of 200/- by each of them and in default of payment of fine to further undergo 15 days additional RI. They

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have also been convicted u/s. 452/34 of the IPC and sentenced to undergo 3 years RI and to pay fine of Rs.1,000-1,000/- and in default of payment of fine to further undergo 2-2 months additional RI.

2. As per the prosecution story, on 22.11.2010, near about at 10, accused Jagdish, Sanjay and Chhotu illegally entered into the house of Bhuraji Sirvi aged about 80 years and assaulted him by means of stick and iron pipe due to which he sustained injuries on his head and legs. On an information given by Udanlal (P.W.2), a "Dehati Nalis" was registered u/s. 307, 452/34 of the IPC. Later on, the FIR vide Crime No.456/2010 was registered u/s. 307, 452/34 of the IPC. Injured Bhuraji Sirvi was taken to the hospital at Kukshi from where he was taken to hospital at Barwani and on the way he succumbed to the injuries. Accordingly, offence u/s. 302 of the IPC was added. The investigation set in the emotion , the police prepared the spot map vide Exh. P/1, collected 50 gms. blood stained soil vide Exh. P/5, recovered the sticks and an iron pipe vide Exh. P/13, P/14 and P/15. Statement of witnesses were recorded u/s. 161 of the Cr.P.C. and all the accused were arrested. Upon completion of the investigation, charge-sheet was filed before the Judicial Magistrate, First Class from where the trial was committed to the Court of Sessions. Charges u/s. 302, 452/34 of the IPC were framed against the accused/appellants which they denied and pleaded for trial. The prosecution has examined 11 witnesses to establish the charges and got exhibited 26 documents. In defence, the appellants denied their involvement and did not examine any witness , got exhibited 6 documents. After appreciating the evidence came on record, learned Addl. Sessions Judge convicted and sentenced the appellants, as stated first. Hence the present appeal before this Court.

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3. Learned senior counsel Shri S K Vyas for the appellants submitted that he is not intending to assail the impugned judgment on merit because so far as offence u/s. 452 of the IPC is concerned, the appellants have already undergone the entire sentence and so far as offence u/s. 302 of the IPC is concerned, the appellants have wrongly been convicted. He has referred to the statement of Anil (P.W.1) who has stated that all the three accused entered into the house and started assaulting his grandfather. Accused Chhotu gave a blow by an iron pipe on the head of deceased with an intention to kill but the deceased bowed down and instead of hitting on the head, the iron pipe was hit on his left leg. Thereafter, the deceased fell down on the floor and sustained injuries on his head which turned fatal. Thereafter, sone and grand son of the deceased tried to save him and some villagers also reached there and all the accused fled away. Similarly, Udanlal (P.W.2), son of the deceased, has also stated that the accused Chhotu wanted to hit by iron pipe on the head of his father but his father bend down and the iron pipe hit on his leg and he became unconscious. He has sustained the injuries on the legs and head and thereafter he was taken to the hospital. Therefore, it is clear from the aforesaid evidence that the appellants were not intending to kill the deceased. As per statement of Dr. Kamlesh Devda (P.W.8), contusion of 2 x 1/2" in right leg, fracture of tibia and fibula bones, abraison of 4 x 1/2", contusion of 2 x 1/2" on left hand, lacerated wound of 1 x ½" on right hand, contusion of 2 x 2" on occipital region of head, and a fracture of occipital bone which was seen after cutting the skin, were found. The deceased was aged about 80 years at the time of the incident. He was first attended by Dr. Rajendra Singh (P.W.9) who did not advise for X- ray as he did not notice any injury on the head. The appellants are in

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jail since the date of their arrest, they have already suffered the incarceration of more than 10 years. There fore the offence u/s 302 I.P.C. be altered to the section 304 Part II of the I.P.C. and sentenced be reduced to the period already undergone by them in the jail.

4. On the other hand, learned Govt. Advocate appearing for the respondent/State opposed the prayer by submitting that the appellants has committed the murder of the deceased by entering in his house with premeditation hence they have rightly been convicted u/s. 302 of the IPC and sentenced to undergo life imprisonment. No interference is called for and the appeal is liable to be dismissed.

After having heard the learned counsel for the parties, we have perused the record of the court below.

5. As per "Dehati Nalis" recorded at the instance of Udanlal, that the appellants entered into the house and started assaulting his father by an iron pipe and sticks on his legs. Chhotu with an intention to kill gave a blow of iron pipe on the head, but his father bowed down and sustained the injuries below the knee. Thereafter, all the accused assaulted by iron pipe and sticks and fled away. As per statements of P.W.1 and P.W.2 also, the appellants have only caused the fracture of tibia and fibula bone. As per MLC (Exh. P/18), no injury on the head of the deceased was reported. The fracture of occipital bone was noticed while conducting the autopsy. The deceased was aged about 80 years at the time of incident. None of the witnesses has stated that any of the appellants had hit on the head of the deceased. The only act of Chhotu has been stated that he tried to hit on the head of the deceased by an iron pipe, but that has caused fracture in his leg. The deceased fell down on the floor and might have sustained the injury on his head. Even those who had taken the deceased to the hospital did

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not inform that deceased has sustained the injury on head due to assault by a rod . Rameshwar (P.W.3) was confronted to the statement (Exh. D/2) and he has admitted that the police has not recorded above facts despite he disclosed to police . The witnesses in their statement recorded u/s. 161 of Cr.P.C. as well as in the court's statements have stated that the appellants have assaulted on the legs of the deceased by means of an iron pipe and sticks, which is not a vital part of the body. The iron pipe and the sticks are not lethal weapons.

6. There was no intention to kill as no one assaulted on vital part of the body of the deceased Bhuraji Sirvi. There was no premeditation to start the dispute with the intention to kill. Stick and road are not a lethal weapon, had there been intention to kill the deceased Bhuraji Sirvi, the appellants would have used more dangerous weapons. The son and grandson of the deceased were also present in the house but none of the appellants has assaulted them. The appellants have only caused the facture to Bhuraji Sirvi by means of rod and lathi, the head injury might have been sustained by falling. hence, death is culpable homicidal not amounting to murder. On an overall consideration of the fact and the situation that the appellants had the intention to assault a man of age of 80 years , with 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 conviction of the appellants ought to be moderated to one under Sections 304 Part 1 IPC and 307 IPC. We find support from the following judgments passed by the Supreme Court of India.

(7) The Hon'ble Supreme Court has held in Gurpal Singh v. State of

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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 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."

(8) 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

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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'."

(9) The Hon'ble Supreme Court has laid down in Prabhakar Vithal Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if the assault on deceased could be said to be on account of the sudden fight without premeditation, 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. In Sikandar Ali Vs. State of Maharashtra, AIR 2017 SC 2614, the Court altered the

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conviction u/s 302 IPC to one u/s 304 part-2 IPC in the following cir- cumstances:

"7. We have no doubt about the complicity of all the accused in the 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."

(10) 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 behaviour. 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

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spot. The appellants, on their own, immediately reported the matter to the local police alleging that the complainant party was the 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.

(11) In Chand Khan Vs. State of M.P. reported in 2006(3) M.P.L.J. 549, the Division Bench of this Court has also converted the conviction of the appellant in attaining facts and circumstances of the case. Para -10 & 11 of the judgment are relevant which reads thus: -

"10. If the present case is considered in the light of the aforesaid decisions of the Supreme Court, it would show that the appellants caused single injury on the head of the deceased by farsa, which is a sharp edged weapon, but unfortunately Aziz Khan (PW-11) and Ishaq Khan (PW-13) have stated that he gave lathi blow on the head of the deceased. Even after considering this contradictory evidence it has to be taken into consideration that it is a case of single farsa blow inflicted by only appellant Chandkhan and appellant Naseem inflicted only lathi blow on the nonvital part of the body and in the absence of this evidence that the injury no.(i) was sufficient to cause death in the ordinary course of nature and also looking to the various other circumstances like that the accused as well as the deceased are close relatives and the deceased was a person of criminal background and the incident started because of the abuses made first by the deceased himself, we find that the case will not fall within the purview of section 300, Indian Penal Code but it will fall under section 304 Part II, culpable homicide not amounting to murder.

11. consequently, appeal is partly allowed. Conviction of appellants under section 302/34 Indian Penal Code, is set aside and instead they are convicted under section 304 part II, Indian Penal Code, .........."

(12) In the case of Ankush Shivaji Gaikwad v. State of Maharash- tra, reported in (2013) 6 SCC 770 the Supreme Court of India has held as under:-

10. On behalf of the appellant it was contended that the appellant's case fell within Exception 4 to Section 300 IPC which reads as under:

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"Exception 4.--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's having taken undue advantage or acted in a cruel or unusual manner."

11. It was argued that the incident in question took place on a sudden fight without any premeditation and the act of the appellant hitting the deceased was committed in the heat of passion upon a sudden quarrel without the appellant having taken undue advantage or acting in a cruel or unusual manner. There is, in our opinion, considerable merit in that contention. We say so for three distinct reasons:

11.1. Firstly, because even according to the prosecution version, there was no premeditation in the commission of the crime. There is not even a suggestion that the appellant had any enmity or motive to commit any offence against the deceased, leave alone a serious offence like murder. The prosecution case, as seen earlier, is that the deceased and his wife were guarding their jaggery crop in their field at around 10 p.m. when their dog started barking at the appellant and his two companions who were walking along a mud path by the side of the field nearby. It was the barking of the dog that provoked the appellant to beat the dog with the rod that he was carrying apparently to protect himself against being harmed by any stray dog or animal. The deceased took objection to the beating of the dog without in the least anticipating that the same would escalate into a serious incident in the heat of the moment. The exchange of hot words in the quarrel over the barking of the dog led to a sudden fight which in turn culminated in the deceased being hit with the rod unfortunately on a vital part like the head.

11.2. Secondly, because the weapon used was not lethal nor was the deceased given a second blow once he had collapsed to the ground. The prosecution case is that no sooner the deceased fell to the ground on account of the blow on the head, the appellant and his companions took to their heels--a circumstance that shows that the appellant had not acted in an unusual or cruel manner in the prevailing situation so as to deprive him of the benefit of Exception 4.

11.3. Thirdly, because during the exchange of hot words between the deceased and the appellant all that was said by the appellant was that if the deceased did not keep quiet even he

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would be beaten like a dog. The use of these words also clearly shows that the intention of the appellant and his companions was at best to belabour him and not to kill him as such. The cumulative effect of all these circumstances, in our opinion, should entitle the appellant to the benefit of Exception 4 to Section 300 IPC.

Conclusion .........

(13). In view of the above evaluation of the facts and circumstances of the case and verdicts of the apex court, the criminal appeal is partly allowed. So far as the complicity of the appellants is concerned, the same is maintained but conviction is altered from section 302 to section 304 Part II of IPC, and accordingly sentenced is reduced from LIFE IMPRISONMENT to the period already undergone. The fine amount imposed by the trial court is maintained. The appellants be released from jail after depositing the fine amount and if he is not required to keep in jail in any other case bail bonds are also discharged.

This criminal appeal is partly allowed.

Record of the trial court be sent back along with a copy of this order.

         [ VIVEK RUSIA ]             [AMAR NATH (KESHARWANI)]
             JUDGE.                          JUDGE.
Alok/-

Digitally signed by ALOK GARGAV
Date: 2022.04.12 10:34:58 +05'30'