Chhotulal vs The State Of Madhya Pradesh
2022 Latest Caselaw 2050 MP

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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE

                              BEFORE
                 HON'BLE SHRI JUSTICE VIVEK RUSIA
                                   &
        HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)

                  CRIMINAL APPEAL No. 474 of 2011

 Between:-
 CHHOTULAL S/O NARBHAJI,
 AGED ABOUT 37 YEARS, OCCUPATION:
 AGRICULTURE VILL. TUTIYAHEDI
 PS MACHALPUR DISTT. RAJGARH
 (MADHYA PRADESH)
                                                       .....APPELLANT

 AND

 THE STATE OF MADHYA PRADESH GOVT.
 THROUGH POLICE STATION MACHALPUR
 DISTT. RAJGARH (MADHYA PRADESH)
                                                     .....RESPONDENT
       Shri Vivek Singh, learned counsel for the appellant.
       Shri Sudhanshu Vyas learned Government Advocate for the
respondent/State.
                  (Heard through Video Conferencing)
VIVEK RUSIA J. passed the following:

                       JUDGMENT

( 15.02.2022) Today this Criminal Appeal is listed on the application for suspension of the jail sentence. With the consent of parties, the appeal itself is heard finally.

The sole appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") against the judgment of conviction dated 09.03.2011, passed by Special Judge, (The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989) in Sessions Trial No.293/2009, by which he has been convicted for the offence punishable under Section 302 of I.P.C. and sentenced to undergo

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life imprisonment with fine of Rs.2,000/- with default stipulation.

Factual Background

(2) The case of the prosecution, in brief, is as follows: -

(a) As per the prosecution story, the house of the complainant Bhulibai (PW-10) and accused Narbha are adjacent to each other. The branches of the tree in the house of the Narbha were falling in the house of Bhulibai. On 02.09.2009, the daughter-in-law of Bhulibai i.e. Soram Bai (PW-9) has cut the branches of the tree due to which there was hot talk between Narbha and Sorambai. Narbha has started abusing Soram Bai. The husband of Bhulibai Khuban came there then accused Chhotulal brought a stick from his house and started assaulting Khuban Ji. Bhuli Bai has leaned over him to save him as a result she has sustained a head injury. By that time, accused Mangilal brought the knife and caused the injury on the head of the Bhulibai. The Prem Bai has also assaulted Bhulibai with the stick. After the aforesaid incident, Khuban Ji was taken to the community health Center Jeeralpura where he was examined by Dr Chandramauli (PW-8), who has referred him to District Hospital. Khuban Ji died in Jhalabad Hospital while in treatment. Postmortem was carried out by Dr Dheeraj Khanna (PW-13). The investigation was carried out by Santosh Prakash (PW-11). He arrested all the accused and recovered sticks and knife from them. After completing the investigation charge-sheet was filed.

(3) Charges under Section 294, 302, 302/34, 323 and 323/34, 506 of I.P.C. were framed against the accused persons, which they denied and pleaded for trial. The prosecution has examined as many as 13 witnesses from PW-1 to PW-13 and got marked 17 documents as Ex.P/1 to Ex. P/17. In defence accused examined two witnesses.

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(4) After evaluating the evidence that came on record, the learned Special Judge has acquitted the Smt. Narbhaji and Smt. Prembai u/s. 294, 302, 302/34, 323 and 323/34, 506 of I.P.C. but convicted the appellant for the offence punishable under Section 302 of I.P.C. However, he has been acquitted for the offence u/s.294, 302/34, 323 and 323/34, 506 of I.P.C. and sentenced to undergo as mentioned above. Hence, this appeal before this Court.

(5) Undisputedly witnesses Beeram (PW-1), Soram Bai (PW-

9) and Bhulibai (PW-10) have supported the case of the prosecution. Kaleem (PW-2), Mangilal (PW-3), Lakhan Singh (PW-4), Nanuram (PW-5) have turned hostile.

Submission of counsels

(6) Learned counsel for the appellant submits that this appellant did not commit any offence. Out of three accused two have been acquitted by the trial court but the appellant has been convicted on the deposition of Beeram (PW-1), Soram Bai (PW-9) and Bhulibai (PW-10), who are relative to each other. Independent witnesses have not supported the case of the prosecution. Mangilal (PW-3) has not supported the seizure of stick from the appellant. On the same set of charges, two accused have been acquitted because the prosecution has failed to prove the charges beyond doubt. Beeram (PW-1), Soram Bai (PW-9) and Bhulibai (PW-10) are not trustworthy witnesses because they have been disbelieved and two accused have been acquitted, therefore, on their testimony the appellant has wrongly been convicted, hence, he is entitled to acquittal. By way of alternate submission, learned counsel has submitted that the dispute occurred suddenly because Sorambai cut the branches of the tree of Narbhaji and there were hot talks between them. During the heat of passion and sudden provocation, the appellant gave a blow to Khubanji and due to

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which he died. As per the doctor opinion, the injuries were swelling on the surface said to have been caused by a hard and blunt object that might be due to fallen from the height, therefore, there was no assault by stick with the intention to kill. The deceased died because he was aged about 60 years and no blood- stains were found on the stick, thus the offence would not travel more than under Section 304-II of I.P.C. for which the appellant has already undergone 10 years of the sentence. He is not a hardcore criminal. Initially, the FIR has been registered for an offence under Sections 307, 294, 323, 506/34 against four accused. There is cross FIR by this appellant against Kamal, Jagdish, Khuban and Sorambai, which was registered crime No.171/2009 under Section 294, 323 and 506 of I.P.C., therefore, there was a cross fight in which the deceased died unintentionally assault. The appellant is in jail since the date of arrest and has undergone a sufficient period of incarceration.

(7) Learned Government Advocate opposes the aforesaid prayer by submitting that in view of the statement of Beeram (PW-1), Soram Bai (PW-9) and Bhulibai (PW-10), the appellant has rightly been convicted under Section 302 of I.P.C. The deceased was assaulted by means of a stick with the intention to kill, hence, the appeal is liable to be dismissed.

We have heard the learned counsel for the parties at length and perused the record of the case

Analysis

(8) It is correct that the dispute occurred suddenly because branches of the tree of Sorambai were cut. The dispute started with a verbal altercation followed by assault to each other by the members of both the family which has resulted in the registration of cross FIRs. As per the doctor opinion and postmortem report,

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the deceased sustained only contiguous and swelling by the hard and blunt objection. In the postmortem, a fracture of the occipital bone was found. Dr Dheeraj Khanna (PW-13) has admitted that if a person falls from a staircase such type injuries can be caused. Beeram (PW-1), Soram Bai (PW-9) and Bhulibai (PW-10) tried to implicate other co-accused but failed and they have been acquitted. There was no premeditation, initially the dispute started between Bhulibai and Narba and later on members of both the family joined and started assaulting each other in which Khuban fell and died. Therefore, it can be safely concluded that there was no premeditation, pre-planning to commit the murder as the dispute occurred suddenly on a petty issue.

Analysis of Judgments

(9) 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 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."

(10) 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

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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'."

(11) The Hon'ble Supreme Court has laid down in Prabhakar Vithal Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if the as- sault 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 al- tered to one under Section 304 Part-I of IPC. In Sikandar Ali Vs. State of Maharashtra, AIR 2017 SC 2614, the Court altered the con- viction u/s 302 IPC to one u/s 304 part-2 IPC in the following circum- stances:

"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

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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."

(12) 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 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.

(13) 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

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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, .........."

(14) 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: "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.

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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 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 (15). In view of the above discussion and aforesaid verdicts of the apex court, the criminal appeal is partly allowed. So far as the culpability of the appellant is concerned, the same is maintained but the same 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 appellant be released from jail after depositing the fine amount and if he is not required to keep in jail in any other case.

This criminal appeal is partly allowed.

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

             ( VIVEK RUSIA )                      ( RAJENDRA KUMAR (VERMA )
                 JUDGE                                      JUDGE
             praveen/-


Digitally signed by PRAVEEN
NAYAK
Date: 2022.02.15 18:30:21
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