Methu vs The State Of Madhya Pradesh
2022 Latest Caselaw 1341 MP

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    IN THE HIGH COURT OF MADHYA PRADESH AT
                    INDORE
                 HON'BLE SHRI JUSTICE VIVEK RUSIA
                                   &
       HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)

                    ON THE 31st OF JANUARY, 2022


                 CRIMINAL APPEAL No. 1404 of 2016

  Between:-
   METHU S/O SHRI MANGILAL BHEEL ,
   AGED ABOUT 48 YEARS, OCCUPATION:
1. ABOR VILL. MAALPURA BAGHADI THIKRI
   (MADHYA PRADESH)

   DHARMENDRA S/O SHRI METHU BHEEL ,
   AGED ABOUT 28 YEARS, OCCUPATION:
2.
   LABOUR VILLAGE MAALPURA,
   BAGHADI, THIKRI, (MADHYA PRADESH)
                                                        .....APPELLANTS
  (BY SHRI MANISH YADAV, LEARNED COUNSEL)

  AND

  THE STATE OF MADHYA PRADESH
  STATION HOUSE OFFICER
  THRU.P.S.THIKRI (MADHYA PRADESH)
                                                    .....RESPONDENTS
  (BY SHRI SUDHANSHU VYAS, LEARNED COUNSEL)
                   (Heard through Video Conferencing)
VIVEK RUSIA J. passed the following:

                         JUDGMENT

Instead of arguing an application for temporary suspension of sentence, learned counsels have agreed to argue finally on a limited issue.

Appellants have preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") against the judgment of conviction dated 02.07.2016, passed by 1 st Additional Sessions Judge, Badwani M.P. in Sessions Trial No.149/2015, by which the appellant No.1 has been convicted for

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the offence punishable under Section 302/34 of I.P.C. and appellant No.2 has been convicted for an offence under Sections 302 of Indian Penal Code (for short "IPC") and sentenced both of them to undergo life imprisonment with fine of Rs.1,000/- each with default stipulation.

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

(a) On 18.06.2015, near about 06:00 pm the deceased Asharam Dawana was returning to his home. Appellant No.1 and his son i.e. appellant No.2 met him on the way and started assaulting him due to the previous enmity. Appellant No.2 has thrown the stone which hit on the head of the deceased. He was taken to the CHC Thikri from where he was referred to M.Y. Hospital. He died on 26.06.2015 before reaching the hospital. Initially, an FIR was registered bearing crime No.170/2015 for the offence punishable under section 294, 323, 506/34 of I.P.C. vide Ex. P/8. After the death, information was received on 27.06.2015 and offence under Section 302/34 of I.P.C. has been added. The police carried out the investigation and filed the charge sheet against them.

(3) Charges under Section 302/34 of I.P.C. was framed against the appellants, which he denied and pleaded for trial. The prosecution has examined as many as 8 witnesses from PW-1 to PW-8 and got marked 16 documents as Ex.P/1 to Ex. P/16. In defence, the appellants examined two witnesses DW-1 Peerchand Choudhary and Surti Bai DW-2.

(4) After evaluating the evidence that came on record, the learned First Additional Sessions Judge has convicted the appellant for the offence punishable under Section 302/34 of I.P.C. and sentenced them to undergo life imprisonment. Hence, this appeal before this Court.

(5) At the very outset, Shri Yadav learned counsel for the

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appellants submits that the appellants are not denying the incident that took place on 18.06.2015. The deceased has lodged a report against Kailash S/o Maithu of eve-teasing of her daughter at the police station in which he was sent to jail. On 18.06.2015 when the deceased Asharam was returning home, these appellants started abusing him in respect of the aforesaid report. When he objected then Dharmendra pelted stone on his head. He started bleeding and become unconscious. Thereafter, they left the place by threatening him to see in the near future. The police recorded the statement of Asharam on 19.06.2015 which is available in the case diary but the same was exhibited. In the FIR, it was not alleged that appellant No.2 threw the statement intending to kill him. Initially, the FIR was registered for offences 294, 323, 506/34 of I.P.C. not for the offence punishable under Section 307 of I.P.C. because the stone is not a deadly weapon, hence, the offence would not travel under Section 323 of I.P.C. It is further submitted by the learned counsel that even it is held that it is the case of homicidal death, then it would fall under Section 304 Part I and II because dispute arose due to heat of passion without premeditation. It is not the case of the prosecution that the appellants started the dispute with the stone in their hand and thrown with an intention to kill him. It is further submitted that appellants are not hardcore criminals. They are in Jail since the date of arrest, therefore, the conviction may kindly be converted from 302 of I.P.C. to 304 Part II and the jail sentence may kindly be reduced from LI to the period already undergone.

(6) Government Advocate opposes the prayer by submitting that the deceased sustained fracture on temporal and parietal bone. The police have recovered stone weight 1 kg. 700 gram from the spot, therefore, the stone was thrown with the intention to kill

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him. Hence, no interference is warranted.

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

(7) Since, the appellants are not disputing the occurrence of the crime, injuries sustained to the deceased and the death due to the said injury hence we are not required to re-examine the material available in the record, hence we accordingly affirm the same.

The only issue which requires consideration is whether it is a case of culpable homicide is not murder falls in exception IV of the 300 I.P.C. ?

(8) The deceased was attended by Dr. R.S. Mujalda (PW-3), who found a lacerated wound on the head of the deceased. He was referred to X-ray and fracture was found, therefore, the cause of death is not in dispute. Except for head injury, no other injuries were found on the person of the deceased.

(9) It is correct that the deceased lodged a report against the son of appellant No.1 and he was sent to jail. The appellants obstructed the way of the deceased and started abusing him and in the heat of passion without intention the appellant No.2 Dharmendra pelted the stone which struck on the head of the deceased and he sustained injury and died. Appellant No.1 Maithu has been convicted under section 302 I.P.C. with the aid of section 34 of I.P.C. as he was present on the spot. There is no overact attributable to him. Apart from injury on the head, no injury was found. The incident took place on a sudden fight without any premeditation and the act of appellant No.2 hitting the deceased by stone 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. Therefore, in our opinion,

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considerable merit in that contention, it is the case of culpable homicidal will fall under section 304 part II I.P.C. is not murder.

(10) 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."

(11) 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.............."

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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'."

(12) 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 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

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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."

(13) 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.

(14) 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

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

(15) 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

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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 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.

(15). In view of the above discussion and verdicts of the apex court, the criminal appeal is partly allowed. So far as the culpability of the appellants is concerned, the same is maintained but conviction is altered to section 304 Part II of IPC, instead of Section 302, 302/34 of IPC and accordingly sentenced is reduced from LIFE IMPRISONMENT to the period already undergone with a fine of Rs.10,000/- each. The appellants be released from jail after depositing the fine amount and if they are not required to keep in jail in any other case. The fine amount be paid to the widow of the deceased.

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/-
PRAVEEN NAYAK
2022.02.01 10:50:27
+05'30'