Madhya Pradesh High Court
Rema @ Ramlal vs The State Of Madhya Pradesh on 20 December, 2022
Author: Vivek Rusia
- : 1 :-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 20th OF DECEMBER, 2022
CRIMINAL APPEAL No. 1171 of 2014
BETWEEN:-
REMA @ RAMLAL S/O DAMDIYA BARELA,
AGED ABOUT 45 YEARS, OCCUPATION:
AGRICULTURIST GOURIKHURD DAMDIYA
FALIYA P.S. CHAINPUR (MADHYA PRADESH)
.....APPELLANT
(MS. SHARMILA SHARMA, LEARNED COUNSEL FOR THE APPELLANT.)
AND
THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THRU. P.S. CHAINPUR
(MADHYA PRADESH)
.....RESPONDENT
(SHRI KAMAL KUMAR TIWARI, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENT/ STATE.)
--------------------------------------------------------------------------------------------------------
This appeal coming on for hearing this day, JUSTICE SHRI
VIVEK RUSIA passed the following:
JUDGMENT
Today this appeal is listed for hearing on I.A.No.8375/2022 which is
the first application seeking suspension of sentence filed on behalf of sole
appellant- Rema @ Ramlal but the parties are willing to argue the criminal
- : 2 :-
appeal finally , hence we have heard the appeal finally.
The appellant/accused has preferred this appeal through State Legal
Service Authority (legal aid) under Section 389 of the Code of Criminal
Procedure, 1973 (in short "Cr.P.C.") against the judgment of conviction
and sentence dated 20.06.2014 passed by IIIrd Additional Sessions Judge,
East Nimar, District- Khargone (M.P.) in Session Trial No.07/2014;
whereby, he has been convicted under Section 302 of IPC and sentenced
to undergo Life imprisonment with a fine of Rs.5,000/- in default of fine
R.I. For one year.
The prosecution story
1. That Anil (complainant) s/o Ranchod (deceased) lodged a report
that his father Ranchod sold a goat to Rema @ Ramlal (appellant) on
15.11.2013. His father demanded the balance amount of sale from
appellant due to which the sudden dispute arose between them and
appellant pelted a stone on the head of his father which became fatal. Anil
(Complainant) lodged a report Merg No.0/2013 on 15.11.2013 (Ex.P/1)
and Dehati Nalishi (Ex.P/2) on 15.11.2013. The spot map was drew, the
body was recovered and sent for postmortem. Blood stained stone
weighing 20 kg and blood containing soil were recovered and
photographs were taken. The appellant was arrested vide arrest memo
(Ex.P/7).
2. The FIR was registered under Section 302 of Indian Penal Code
against the appellant. Upon completing the investigation, Charge Sheet
was filed before the JMFC, Khargone. The trial was committed to the
session court where the charge under section 302 of Indian Penal Code
I.P.C. was framed which the appellant denied and pleaded for the trial.
- : 3 :-
3. In order to prove the sole charge of 302 of IPC, the prosecution
examined PW-1 to PW-12, out of which PW-4 is an eye witness in this
case. The prosecution has exhibited eighteen documents to prove the
charge beyond reasonable doubt. In defence appellant did not examine
any witness. After evaluating the evidence that came on record, the IIIrd
Additional Sessions Judge, East Nimar, District- Khargone vide order
dated 20.06.2014 in S.T Case No.07/2014; has convicted the appellant
under Section 302 of IPC and sentenced him to undergo Life
imprisonment with a fine of Rs.5,000/- in default of fine R.I. for one year.
Hence, this appeal before this Court.
Grounds in the criminal appeal
4. At the very outset, learned counsel for the appellant submits that the
appellant is not assailing the findings recorded on various issues like date
of offence, cause of death, motive etc. hence, this Court is not required to
re-appreciate all these findings by examining the evidence.
5. Learned counsel further submits that there was no previous enmity
between the appellant and deceased. The deceased was demanding the
sale consideration of goat from the appellant and due to which sudden
quarrel started between them and out of anger he threw the stone which
was lying there on the deceased due to which he died. Therefore, this is
homicidal not amounting to murder for which the appellant is liable to be
convicted at the most under Section 304 Part I of IPC and not on Section
302 of IPC. He is in jail since last nine year. He is not an habitual
offender and this is the first case registered against him. He is an illiterate
person and resident of remote area having limited means to survive.
Hence as an reformatory approach, the sentence of life imprisonment be
reduce to the period already undergone.
- : 4 :-
Opposition by State
6. Learned Government Advocate for the respondent/State opposes the
aforesaid prayer by submitting that the appellant threw the stone weighing
20-25 kg which totally crushed the head of the deceased, therefore the
intention of the appellant to commit murder is apparent. PW-4 /
eyewitness has supported the case of prosecution, therefore he has rightly
been convicted under Section 302 of IPC. Hence, prays that no
interference is called for and the appeal is liable to be dismissed.
Appreciation & conclusion
7. It is settled law that for examining the culpability, the nature of the
injuries are not so important and is liable to be examined.
8. The dispute which occurred suddenly and in the heat of passion or
out of anger, the appellant has committed this offence. There was no pre-
meditation or it was not a pre-planned murder or done with an intention. It
is not the case of prosecution that he brought the stone of 20-25 kg with
him and committed the murder. Before the incident, there was a verbal
altercation between them in respect of money which turned into a scuffle
and that followed by throwing the stone. The stone was lying there which
he took and pelted on the appellant, therefore, in view of the law laid
down by the Apex Court in the cases of Gurpal Singh v/s The State of
Punjab reported in AIR 2017 SC 471, Arjun & Another v/s The State of
Chhattisgarh reported in AIR 2017 SC 1150, Prabhakar Vithal Gholve
v/s The State of Maharashtra reported in AIR 2016 SC 2292, Sikandar
Ali v/s The State of Maharashtra reported in AIR 2017 SC 2614,
Madhavan & Others v/s The State of Tamil Nadu reported in AIR 2017
SC 3847 and Ankush Shivaji Gaikwad v/s The State of Maharashtra
- : 5 :-
reported in (2013) 6 SCC 770, the offence will not travel more than
Section 300 exception IV of the IPC for which the appellant is liable to be
convicted for the offence punishable under Section 304 Part - I. of I.P.C.
9. The Hon'ble Supreme Court has held in Arjun & Another (supra)
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
- : 6 :-
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'."
10. The Hon'ble Supreme Court has laid down in Prabhakar Vithal
Gholve v/s The State of Maharashtra reported in AIR 2016 SC 2292 that
if the assault on the deceased could be said to be on account of the sudden
fight without pre-meditation, in heat of passion and upon a sudden
quarrel, conviction of the appellant cannot be sustained under Section 302
and altered to under Section 304 Part-I of IPC.
11. In view of the foregoing discussion, this appeal is partly allowed.
The conviction of the appellant u/s. 302 of the IPC is modified and he is
convicted for an offence punishable under Section 304 Part- I of the IPC
and his sentence is converted from Life imprisonment to ten years R.I.
Out of which he has already undergone nine years of incarceration. The
fine amount is maintained. The appellant be released if served the
sentence and not required in any other crime committed by him.
12. Record of the court below along with a copy of this order be sent
forthwith for information and compliance.
(VIVEK RUSIA ) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
Aastha
JAGDISHAN AIYER
2022.12.22 17:10:21
+05'30'
