Tarachand vs The State Of Madhya Pradesh
2022 Latest Caselaw 199 MP

                                     1

                                                Criminal Appeal No.2223/2012


 HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                   JABALPUR


Case No.                             CRA. No.2223 of 2012
Parties Name                                        Tarachand
                                                        Vs.
                                           The State of Madhya Pradesh
Bench Constituted                    Division Bench comprising of
                                     Justice Sujoy Paul
                                     Justice Arun Kumar Sharma
Judgment delivered by                Justice Sujoy Paul
Whether approved for
reporting
Name of counsels for parties         For Appellant: Shri Nagendra Singh
                                     Solanki, Advocate.

                                     For respondent/State: Shri S.K. Malvi,
                                     Panel Lawyer.
Law laid down
Significant paragraph
numbers

                            JUDGMENT

(05.01.2022) SUJOY PAUL , J:

1. This criminal appeal filed under Section 374 (2) of the Code of

Criminal Procedure, 1973 (in short, Cr.P.C.) assails the judgment of

conviction and order of sentence dated 25.05.2012 passed in S.T.

No.196/2011 whereby the appellant was held guilty of committing

offence under Sections 302 of the Indian Penal Code (for brevity, IPC)

and was directed to undergo sentence for life and fine of Rs.5000/- with

default stipulation.

2. Briefly stated, case of the prosecution is that on 30.08.2011 the

complainant Shriram Thakre (PW3) lodged a report in the Police Station

Hatta that appellant's wife Munni Bai informed him that her husband

Criminal Appeal No.2223/2012

Tarachand (PW6) consumed liquor in the previous night and created lot

of trouble. She was frightened because of the behaviour of her husband

in drunken condition, therefore, did not enter her house in the previous

night. She spent her night in the house of neighbour Ramesh Marar.

When she entered her house in the morning, the appellant tried to assault

her. Raju and Basant came there to save her. The appellant started

abusing everyone who tried to save her. When complainant reached the

house of appellant with his wife, he found that appellant is sitting on the

body of Basant and was assaulting him with a piece of brick. The wife

of Basant, Tarsi Bai (PW4) and Surendra were trying to save him. After

some quarrel, they could be separated. Basant walked for 10-12 steps

and then fell down and became unconscious. He was taken to his house.

After drinking water, Basant died.

3. The appellant was tried for committing offence under 302 of IPC.

The appellant abjured the guilt and pleaded innocence.

4. Before the Court below, nine prosecution witnesses entered the

witness box and deposed their statements. The Court below opined that

the offence under Section 302 of IPC is made out. Accordingly,

imposed the sentence mentioned hereinabove.

5. Shri Nagendra Singh Solanki, learned counsel for the appellant

submits that there was no motive or premeditation in the incident. The

appellant and deceased both were in drunken condition. No deadly

weapon is used by the appellant. The quarrel occurred instantaneously

in which assault by the appellant was by using broken bricks. Thus,

necessary ingredients for attracting offence under Section 302 of IPC are

Criminal Appeal No.2223/2012

missing. The appellant has already remained in custody for 10 years

and 04 months. At best, offence under Section 304 Part I of the IPC is

made out. Since, the appellant has already remained in custody for 10

years and 04 months, he may be released forthwith. In support of his

arguments, he relied on three judgments of Supreme Court, Budhi

Singh vs. State of H.P. (Criminal Appeal No.1801 of 2009), Udiya

vs. State of Madhya Pradesh (Criminal Appeal Nos. 2267-2268 of

2009) and Buddu Khan vs. State of Uttarakhand (2009) 12 SCC 260.

6. Per contra, Shri S.K. Malvi, learned Panel Lawyer supported the

impugned judgment. He submits that as per the evidence of Shriram

Thakre (PW3), the appellant was sitting on the body of Basant and was

assaulting him by means of a brick piece and was also trying to

strangulate him with the help of his hands. Thus, it cannot be said that

the appellant did not have any knowledge about the nature and effect of

assault.

7. Parties confined their arguments to the extent indicated above.

8. We have heard the parties at length and perused the record.

9. As per Post Mortem Report and statement of Dr. O.P. Nag (PW1),

internal injuries were present on the person of the deceased. His 8 th and

9th ribs were fractured. The reason of death is internal bleeding and

shock.

10. The complainant Shriram Thakre (PW3) in the cross-examination

categorically admitted that an incident has taken place on the day of

"Narbodh" (appears to be a local event/festival). He further admitted

that on the day of "Narbodh", local people consume liquor. The assault

Criminal Appeal No.2223/2012

was made by the appellant by using two pieces of bricks. A careful

reading of the statement of complainant/eye-witnesses leaves no room

for any doubt that the incident has taken place suddenly. There was no

motive or premeditation. No deadly weapon was used. The appellant

and deceased both were in drunken condition.

11. Smt. Tarsi Bai (PW4), the wife of deceased Basant did not support

the prosecution story. She stated that she has not seen the appellant

assaulting her husband. She was declared hostile. In this backdrop, it

is to be seen whether the appellant can be held guilty for committing

offence under Section 302 of IPC.

12. Before dealing with this aspect, I deem it proper to consider the

judgments on this point. In Budhi Singh vs. State of H.P. (Criminal

Appeal No.1801 of 2009), the Apex Court held as under :-

"19. As we have discussed above, premeditation and intention to kill are two vital circumstances amongst others which are to be considered by the Court before holding the accused guilty of an offence under Section 302 or 304 IPC. At the cost of repetition, we may notice that from the prosecution evidence, it is not established that the accused had the intention to kill the deceased or it was a premeditated crime. The learned counsel appearing for the State has contended that the very fact that the accused had come out with a tobru completely establishes the intention to kill and, thus, the offence would fall under Section 302 IPC. It cannot be disputed that the accused came out with a tobru but, at the same time, it is also clear that this is the most easily available weapon in that part of the hills and is used regularly by the communities. Beyond this factor, there is no evidence of animosity, premeditation or intention to kill. The accused did give a blow by tobru on the head of the deceased which proved fatal. This was result of the grave and sudden provocation where father of both the deceased and the accused was being

Criminal Appeal No.2223/2012

abused, assaulted and ill-treated by the deceased, who was in a drunken state.

20. Thus, in the facts of the present case, a sudden and grave provocation took place which would bring the offence within the ambit of exception 1 of Section 300 IPC and hence under Section 304 Part I IPC as the accused had caused such bodily injury to the deceased which, to his knowledge, was likely to cause death as he had inflicted injuries on the head of the deceased. Having held the accused guilty of an offence under Section 304 Part I IPC, we award the sentence of 10 years rigorous imprisonment and to a fine of Rs.5,000/- in default thereto to undergo further imprisonment of six months."

13. Reference may be made to recent judgment of Udiya vs. State of

Madhya Pradesh delivered in Criminal Appeal Nos. 2267-2268 of 2009,

which reads as under :-

"4. However, we are inclined to accept the plea and contention that the present case would fall under Exception 4 of Section 300 IPC. This is not a case of premeditated attack or violence actuated by a motive and previous feud. It was a case of sudden fight in which the two brothers got involved and in the grapple the appellant had picked up a stone and had hit the deceased Nakuda. Birji (PW-3) has testified that Jeevni (PW-1) had come to his house and stated that the appellant and Nakuda were fighting. Similar assertion was made by Laxman (PW-4) who has stated that Jeevni (PW-1) had informed that the two brothers were fighting and that they must separate them. Appellant had not come armed to the spot with a weapon of offence. No witness has testified as to any past enmity and acrimony between the two brothers. In fact, Jeevni (PW-1) had stated that earlier a civil suit had been filed by her deceased husband and the appellant against two other persons and that there was no previous enmity between the two brothers though they sometimes used to quarrel and thereafter would become friendly. When Jeevni (PW-1) had approached the deceased Nakuda, he was in a position to speak and had stated that the appellant had given him a beating with a stone, albeit he did not give any reason for the

Criminal Appeal No.2223/2012

violence. Post Mortem Report no doubt refers to fracture of the third and fourth rib but these could have been caused when Nakuda had fallen down. No external injuries were present and noticed in the rib area. Laxman (PW-4) has deposed that they had proceeded to the appellant's house. Appellant, who was present, was asked to come out and was thereupon confronted and informed that Nakuda had expired and they would be filing a police report. Then, the appellant on the pretext of easing himself had fled from the spot. This would indicate that the appellant was not aware that he had killed his brother, Nakuda. (Even otherwise, there is hardly any evidence to suggest and show that the injuries caused were intended, so as to indicate intention of causing bodily injury as is sufficient in the ordinary course of nature to cause death).

5. Accordingly, for the reasons stated above, we would convert the conviction of the appellant from Section 302 to Part-I of Section 304 IPC. On the question of sentence, we are informed that the appellant has already undergone rigorous imprisonment for over six years, prior to his release on bail, as directed vide order dated November 30, 2009. The offence was committed in the year 1999. In the aforesaid circumstance, we are inclined to modify the sentence to the period already undergone, which would include default rigorous imprisonment for a period of one month in lieu of fine of Rs.1,000/-."

(emphasis supplied)

14. In Buddu Khan vs. State of Uttarakhand (2009) 12 SCC 260, the

blow had arisen out of a sudden fight. Assault was made by picking up a

brick and inflicting single blow. The conviction was converted under

Section 304 Part I.

15. If the present case is tested on the anvil of the aforesaid judgments, it

will be clear that the appellant's case is almost similar to the case of Udiya

(supra). As noticed above, the appellant was not having any enmity with

the deceased. Incident had taken place in a sudden fight. No deadly weapon

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was used. Wife of the deceased did not support the prosecution story.

Considering the aforesaid, in our opinion, the argument of Shri Solanki has

substantial force that necessary ingredients for attracting offence under

Section 302 of IPC are missing. Indeed, it is a case for converting the

conviction from offence under Section 302 of the IPC to Part I of Section

304 of IPC. We are informed that the appellant has already undergone 10

years and 04 months of jail sentence, therefore, we set aside the impugned

judgment to the extent appellant was held guilty under Section 302 of IPC.

The conviction of appellant shall be treated under Section 304 Part I of the

IPC. Since, appellant has already undergone more than 10 years in the

prison, he be released forthwith subject to payment of fine (if not already

paid). The order of release is of-course subject to the condition that his

presence in the prison is not required in any other offence.

16. Appeal is partly allowed to the extent indicated above.

                     (Sujoy Paul)                           (Arun Kumar Sharma)
                        Judge                                      Judge

  PK

PARITOSH KUMAR
2022.01.07
15:47:58 +05'30'