Madhya Pradesh High Court
Gopal vs State Of M.P. on 20 January, 2022
Author: Gurpal Singh Ahluwalia
1
Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
DEEPAK KUMAR AGARWAL J.J.
Cr.A. No. 831 of 2010
Gopal
Vs.
State of M.P.
Shri Suresh Agrawal Counsel for the Appellant
Shri Counsel for the State
Date of Hearing : 17-January-2022
Date of Judgment : 20-Jan-2022
Approved for Reporting :
Judgment
20- January -2022
Per G.S. Ahluwalia J.
1.
This Criminal Appeal under Section 374 of Cr.P.C. has been
filed against the judgment and sentence dated 11-8-2010 passed by
Additional Sessions Judge, Pichhore, Distt. Shivpuri in S.T. No. 269
of 2009, by which the appellant Gopal has been convicted under
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
Section 302/34 of I.P.C. and has been sentenced to undergo the Life
Imprisonment and fine of Rs. 500/- in default 3 months R.I.
2. It is not out of place to mention here that a report dated 9-8-
2021 has been received from the office of Superintendent, Central
Jail, Gwalior that the Appellant No.2 Amar Singh has expired on 27-
11-2020. Even the Appellant No.1 Gopal was granted interim bail by
order dated 27-11-2020 to perform last rites of Appellant No.2 Amar
Singh. Accordingly, by order dated 17-1-2022, the appeal filed by
Appellant No.2 Amar Singh has been dismissed as abated.
3. According to the prosecution case, on 1-8-2009, a telephonic
message was received by S.H.O., Police Station Khaniyadhana, that
Jagdish has been killed by Appellants Gopal and Amar Singh by
assaulting him by Lathi. Accordingly, the said information was
recorded in the Rojnamchasanha and police party went to the spot.
4. Dehati Nalishi, Ex. P.1 was recorded on 1-8-2009 at 19:50 on
the information given by Kaushal. It was alleged that the
complainant and his family is the resident of village Kumharra.
Today, his brother Jagdish was returning back after purchasing Bidi.
Sometimes, Jagdish under the influence of alcohol, is in habit of
creating nuisance and on this issue, the accused persons had enmity.
When Jagdish reached near the house of Deena Jatav, then he was
waylaid by Gopal and Amar Singh. They were having lathis with
them. Gopal and Amar Singh started abusing and beating him. After
hearing the noise, the complainant also rushed to the place of incident
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
and saw that Gopal and Amar Singh were brutally beating Jagdish.
When he tried to intervene in the matter, then he was pushed back.
Jagdish fell down. Gopal and Amar Singh dragged him to the field of
Gunde Bavo and again assaulted him. Jagdish sustained injuries on
his head, shoulder, back, hands and legs, as a result, Jagdish became
semi-unconscious. The complainant, some how managed to take
Jagdish to the house of his maternal uncle Komal. He also called his
Bhabhi. He was searching for the conveyance for taking Jagdish to
Hospital, however, Jagdish died, thereafter, he requested son of
Sarpanch to inform police.
5. The police registered the FIR. The dead body of Jagdish was
sent for post-mortem. The statements of witnesses were recorded.
The Appellant Gopal and Amar Singh were arrested. Lathis were
seized. The police after completing the investigation filed charge
sheet against Gopal and Amar Singh for offence under Section 302/34
of I.P.C.
6. The Trial Court by order dated 16-12-2009 framed charge
under Section 302/34 of I.P.C.
7. The Appellant Gopal and Amar Singh abjured their guilt and
pleaded not guilty.
8. The prosecution examined Kaushal (P.W.1), Smt. Vidhya
(P.W.2), Ramesh Kumar Lodhi (P.W.3), Ku. Bhavana (P.W.4), Kishan
Lal (P.W.5), Mihi Lal (P.W.6), Smt. Bhuri bai (P.W.7), Phool Singh
(P.w.8), Parmal Singh Raghuvanshi (P.W.9), Bhogiram (P.W. 10), Dr.
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
Virendra Uchadiya (P.W.11), Vishwadeep (P.W. 12), and S.P. Pandey
(P.W. 13).
9. The Appellants examined Vikram (D.W.1) and Devendra
(D.W.2) in their defence.
10. The Trial Court, by the impugned judgment, has convicted and
sentenced the Appellant Gopal and Amar Singh for the offences
mentioned above.
11. It is submitted by the Counsel for the Appellant that according
to the prosecution story, the deceased Jagdish was in habit of creating
nuisance after consuming alcohol, and he was beaten on that issue
only. There was no intention on the part of the Appellant Gopal to
kill Jagdish. The act of the Appellant Gopal would squarely fall
within the ambit of Section 304 Part 1 or 2 I.P.C. and the Appellant
Gopal has already undergone the actual jail sentence of 12 years.
Thus, it is prayed that the conviction of the Appellant be converted
into offence under Section 304 Part 1 or 2 IPC and may be sentenced
to the period already undergone by him.
12. Per contra, the Counsel for the State has supported the
conviction of the Appellant Gopal under Section 302 of IPC.
13. Heard the learned Counsel for the parties.
14. Before adverting to the facts of the case, this Court would like
to consider as to whether the death of Jagdish was homicidal or not?
15. Dr. Virendra Uchadiya (P.W.11) has conducted the post-mortem
of the dead body of Jagdish and found following injuries :
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
(i) A lacerated wound size 4 cm x 0.5 cm x o.5 cm over
front of skull directed vertical just above frontal bone.
Frontal bone found fractured.
(ii) An abrasion size 4 cm x 1 cm over left side of cheek
2 cm laterally from eye colour red (dark).
(iii) A contusion size 4 cm x 2.5 cm (brownish) over
lateral aspect of left arm.
(iv) A contusion size 5 cm x 3 cm over dorsal aspect of
left hand
(v) A contusion size 4.5 cm x 2.5 cm over dorsal aspect
of right hand
(vi) An abrasion size 10 cm x 6 cm over left side back
over 4th to 12th ribs.
(vii) An abrasion size 8 cm x 5 cm over right side back
over 5th to 12th ribs.
(All injuries are caused by hard and blunt object within 30
hours of duration. Injury No.1 is dangerous in nature.
Cause of death syncope due to dangerous injury to brain
due to injury no.1
Time since death is within 30 hours within 18-30
hours.
The post-mortem report is Ex. P.19.
16. This witness was cross-examined. In cross-examination, this
witness admitted that the injury no.1 could have been caused by fall,
but clearly denied that all the injuries could have been suffered due to
fall on one occasion. However, he admitted that the deceased could
have sustained injury due to fall on multiple occasions. He further
stated that S.H.O., had sent Lathis for his examination and he gave
query report, Ex. P.20 that the injuries could have been caused by
Lathis. He further stated that the lathis were not stained with blood.
17. Thus, it is clear that the death of Jagdish was homicidal in
nature.
18. The next question for consideration is that whether the
Appellant Gopal along with Amar Singh had caused injuries to
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
Jagdish and if yes, then what offence was committed by him.
19. Kaushal (P.W.1) is an eye-witness, whereas Smt. Vidhya
(P.W.2) and Ku. Bhavana (P.W.4) are the witnesses of Oral Dying
Declaration.
20. Kaushal (P.W.1) has stated that on some occasions, his brother
Jagdish used to consume liquor and also used to abuse people on
provocation by them and therefore, the appellants Gopal and Amar
Singh had enmity with Jagdish. When Jagdish reached near the
house of Deena Jatav, then he was waylaid by Gopal and Amar Singh.
They were having lathis with them. Gopal and Amar Singh started
abusing and beating him. After hearing the noise, the complainant
also rushed to the place of incident and saw that Gopal and Amar
Singh were brutally beating Jagdish. When he tried to intervene in
the matter, then he was pushed back. Jagdish fell down. The Gopal
and Amar Singh dragged him to the field of Gunde Bavo and again
assaulted him. Jagdish sustained injuries on his head, shoulder, back,
hands and legs, as a result, Jagdish became semi-unconscious. The
complainant, some how managed to take Jagdish to the house of his
maternal uncle Komal. He called his Bhabhi from the field. His
Bhabhi gave water to Jagdish. Therefore, he regained his
consciousness and informed that he has been beaten by Gopal and
Amar Singh. Thereafter, he went in search of conveyance for taking
his brother to Hospital, but could not arrange for the same and in the
meanwhile his brother expired.
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21. Thus, it is clear that this witness in his examination-in-chief
itself had stated that his brother was in habit of using abusive
language under the influence of alcohol.
22. Smt. Vidhya (P.W.2) has also stated that Jagdish informed her
that he has been assaulted by Gopal and Amar Singh, but in cross-
examination, She admitted that for the last 10 years, Jagdish was in
habit of consuming alcohol on some occasions. He was also in habit
of using abusive language on provocation.
23. Ku. Bhavana (P.W. 4) has also stated about Oral Dying
Declaration by Jagdish.
24. Ramesh Kumar Lodhi (P.W. 3) is the owner of Tractor, who
was approached by Kaushal (P.W.1) for taking Jagdish to hospital.
25. Kishan Lal (P.W.5), Mihi Lal (P.W.6), have partially supported
the prosecution case. They have said that after hearing the noise, they
came out of their houses. They found that some dispute was going on
between Gopal, Amar Singh and Jagdish. They intervened in the
matter and separated them. However, these witnesses did not support
with regard to assault and accordingly, they were declared hostile, but
nothing could be elicited from their cross-examination which may
support the prosecution story.
26. Phool Singh (P.W. 7) is a witness of spot map. Naksha
Panchnama was also prepared. Gopal and Amar Singh were arrested.
However, he did not support the prosecution with regard to further
proceedings. Accordingly, he was declared hostile and on cross-
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
examination by the Public Prosecutor, he admitted that the appellant
Gopal had given a memorandum, Ex. P.8 and accordingly Lathi was
seized from Gopal.
27. Parmal Singh Raghuvanshi (P.W. 9) had registered the FIR, Ex.
P.10 on the basis of Dehati Nalishi, Ex. P.1. The copy of FIR was
sent to concerning Magistrate on 1-8-2009 and the inward outward
register is Ex. P.12 Similarly, Merg, Ex. P.13 was also registered.
28. Bhogiram (P.W.10) has turned hostile and did not support the
prosecution case.
29. Vishwadeep Singh Parihar (P.W.12) is the investigating officer.
30. S.P. Pandey (P.W. 13) has also conducted partial investigation.
He had prepared the spot map, Ex. P.2. Recorded the statements of
Kaushal, Smt. Vidya, Bhogiram on 2-8-2009, statements of Kishanlal,
Ku. Bhavana, Ramesh Kumar on 12-8-2009a and statement of Mihi
Lal on 16-8-2009. The Appellant Gopal and Amar Singh were
arrested on 2-8-2009 vide arrest memo Ex. P.15 and P.16. Their
memorandum, Ex. P.8 and P.9 were recorded. One Lathi each was
seized from Gopal and Amar Singh vide seizure memo Ex. P.17 and
P.18.
31. Thus, from the evidence of Kaushal (P.W.1), Smt. Vidhya
(P.W.2) it is clear that the deceased Jagdish was in habit of
consuming liquor and was also in habit of creating nuisance by using
abusive language. Kaushal (P.W.1) has stated that only on this issue,
the Appellant Gopal and Amar Singh were having enmity and
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
assaulted him.
32. So far as the medical evidence is concerned, it is clear from the
post-mortem report, Ex. P.19, only one lacerated wound was found
on the head of the deceased whereas 1 abrasion was found on cheek,
1 abrasion each was found on dorsal aspect of both hands and one
abrasion was found on left arm. Although two contusions were
found on the back of Jagdish, but according to Kaushal (P.W.1), the
appellants Gopal and Amar Singh had dragged Jagdish, therefore, it
is possible, that both the contusions found on the back of the
deceased might have been caused during dragging.
33. The allegations of assault by Appellant Gopal and Amar Singh
has not been challenged by the Counsel for the Appellants, therefore,
the only question which is required to be decided is as to whether the
act of the Appellant Gopal and Amar Singh is punishable under
Section 302 of IPC or under Section 304 Part 1 or 2 IPC?
34. The Supreme Court in the case of Stalin v. State, reported in
(2020) 9 SCC 524 has held as under :
7.1.3. In Pulicherla Nagaraju v. State of A.P., this Court
while deciding whether a case falls under Section 302 or
304 Part I or 304 Part II IPC, held thus: (SCC pp. 457-58,
para 29)
"29. Therefore, the court should proceed to decide the
pivotal question of intention, with care and caution, as
that will decide whether the case falls under Section
302 or 304 Part I or 304 Part II. Many petty or
insignificant matters -- plucking of a fruit, straying of
cattle, quarrel of children, utterance of a rude word or
even an objectionable glance, may lead to altercations
and group clashes culminating in deaths. Usual
motives like revenge, greed, jealousy or suspicion may
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
be totally absent in such cases. There may be no
intention. There may be no premeditation. In fact,
there may not even be criminality. At the other end of
the spectrum, there may be cases of murder where the
accused attempts to avoid the penalty for murder by
attempting to put forth a case that there was no
intention to cause death. It is for the courts to ensure
that the cases of murder punishable under Section 302,
are not converted into offences punishable under
Section 304 Part I/II, or cases of culpable homicide not
amounting to murder, are treated as murder punishable
under Section 302. The intention to cause death can be
gathered generally from a combination of a few or
several of the following, among other, circumstances:
(i) nature of the weapon used; (ii) whether the weapon
was carried by the accused or was picked up from the
spot; (iii) whether the blow is aimed at a vital part of
the body; (iv) the amount of force employed in causing
injury; (v) whether the act was in the course of sudden
quarrel or sudden fight or free for all fight; (vi)
whether the incident occurs by chance or whether
there was any premeditation; (vii) whether there was
any prior enmity or whether the deceased was a
stranger; (viii) whether there was any grave and
sudden provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken
undue advantage or has acted in a cruel and unusual
manner; (xi) whether the accused dealt a single blow
or several blows. The above list of circumstances is, of
course, not exhaustive and there may be several other
special circumstances with reference to individual
cases which may throw light on the question of
intention. Be that as it may."
7.1.4. In Singapagu Anjaiah v. State of A.P., this Court
while deciding the question whether a blow on the skull of
the deceased with a crowbar would attract Section 302 IPC,
held thus: (SCC p. 803, para 16)
"16. In our opinion, as nobody can enter into the mind
of the accused, his intention has to be gathered from
the weapon used, the part of the body chosen for the
assault and the nature of the injuries caused. Here, the
appellant had chosen a crowbar as the weapon of
offence. He has further chosen a vital part of the body
i.e. the head for causing the injury which had caused
multiple fractures of skull. This clearly shows the
force with which the appellant had used the weapon.
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The cumulative effect of all these factors irresistibly
leads to one and the only conclusion that the appellant
intended to cause death of the deceased."
7.1.5. In State of Rajasthan v. Kanhaiya Lal this Court in
paras 7.3, 7.4 and 7.5 held as follows: (SCC pp. 643-44)
"7.3. In Arun Raj this Court observed and held that
there is no fixed rule that whenever a single blow is
inflicted, Section 302 would not be attracted. It is
observed and held by this Court in the aforesaid
decision that nature of weapon used and vital part of
the body where blow was struck, prove beyond
reasonable doubt the intention of the accused to cause
death of the deceased. It is further observed and held
by this Court that once these ingredients are proved, it
is irrelevant whether there was a single blow struck or
multiple blows.
7.4. In Ashokkumar Magabhai Vankar, the death was
caused by single blow on head of the deceased with a
wooden pestle. It was found that the accused used
pestle with such force that head of the deceased was
broken into pieces. This Court considered whether the
case would fall under Section 302 or Exception 4 to
Section 300 IPC. It is held by this Court that the injury
sustained by the deceased, not only exhibits intention
of the accused in causing death of victim, but also
knowledge of the accused in that regard. It is further
observed by this Court that such attack could be none
other than for causing death of victim. It is observed
that any reasonable person, with any stretch of
imagination can come to conclusion that such injury
on such a vital part of the body, with such a weapon,
would cause death.
35. The Supreme Court in the case of Nankaunoo v. State of U.P.,
reported in (2016) 3 SCC 317 has held as under :
10. The learned counsel for the appellant then contended
that the gunshot injury was on the lower part of the left
thigh which is a non-vital organ and it cannot be said that
the appellant intended to cause the death of the deceased
and therefore the conviction of the appellant under Section
302 IPC is not sustainable. In the light of the above
contention, the question falling for consideration is whether
the conviction of the appellant under Section 302 IPC is
sustainable?
11. Intention is different from motive. It is the intention
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
with which the act is done that makes a difference in
arriving at a conclusion whether the offence is culpable
homicide or murder. The third clause of Section 300 IPC
consists of two parts. Under the first part it must be proved
that there was an intention to inflict the injury that is
present and under the second part it must be proved that the
injury was sufficient in the ordinary course of nature to
cause death. Considering clause Thirdly of Section 300 IPC
and reiterating the principles stated in Virsa Singh case, in
Jai Prakash v. State (Delhi Admn.), para 12, this Court held
as under: (SCC p. 41)
"12. Referring to these observations, Division Bench
of this Court in Jagrup Singh case, observed thus:
(SCC p. 620, para 7)
'7. ... These observations of Vivian Bose, J. have
become locus classicus. The test laid down in Virsa
Singh case, for the applicability of clause Thirdly is
now ingrained in our legal system and has become part
of the rule of law.'
The Division Bench also further held that the decision
in Virsa Singh case has throughout been followed as
laying down the guiding principles. In both these cases
it is clearly laid down that the prosecution must prove
(1) that the body injury is present, (2) that the injury is
sufficient in the ordinary course of nature to cause
death, (3) that the accused intended to inflict that
particular injury, that is to say it was not accidental or
unintentional or that some other kind of injury was
intended. In other words clause Thirdly consists of two
parts. The first part is that there was an intention to
inflict the injury that is found to be present and the
second part that the said injury is sufficient to cause
death in the ordinary course of nature. Under the first
part the prosecution has to prove from the given facts
and circumstances that the intention of the accused
was to cause that particular injury. Whereas under the
second part whether it was sufficient to cause death, is
an objective enquiry and it is a matter of inference or
deduction from the particulars of the injury. The
language of clause Thirdly of Section 300 speaks of
intention at two places and in each the sequence is to
be established by the prosecution before the case can
fall in that clause. The 'intention' and 'knowledge' of
the accused are subjective and invisible states of mind
and their existence has to be gathered from the
circumstances, such as the weapon used, the ferocity of
attack, multiplicity of injuries and all other
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surrounding circumstances. The framers of the Code
designedly used the words 'intention' and 'knowledge'
and it is accepted that the knowledge of the
consequences which may result in doing an act is not
the same thing as the intention that such consequences
should ensue. Firstly, when an act is done by a person,
it is presumed that he must have been aware that
certain specified harmful consequences would or could
follow. But that knowledge is bare awareness and not
the same thing as intention that such consequences
should ensue. As compared to 'knowledge', 'intention'
requires something more than the mere foresight of the
consequences, namely, the purposeful doing of a thing
to achieve a particular end."
12. The emphasis in clause three of Section 300 IPC is on
the sufficiency of the injury in the ordinary course of nature
to cause death. The sufficiency is the high probability of
death in the ordinary course of nature. When the sufficiency
exists and death follows, causing of such injury is intended
and causing of such offence is murder. For ascertaining the
sufficiency of the injury, sometimes the nature of the
weapon used, sometimes the part of the body on which the
injury is caused and sometimes both are relevant.
Depending on the nature of weapon used and situs of the
injury, in some cases, the sufficiency of injury to cause
death in the ordinary course of nature must be proved and
cannot be inferred from the fact that death has, in fact, taken
place.
13. Keeping in view the above principles, when we
examine the facts of the present case, the deceased
sustained gunshot wound of entry 1½? × 1½? on the back
and inner part of left thigh, six gunshot wounds of exit each
?? × ?? in size in front and middle left thigh. Due to the
occurrence in the morning at the barber shop of the
deceased, the appellant emerged from the northern side of
the grove carrying pistol in his hand and fired at the
deceased. The weapon used and the manner in which attack
was made and the injury was inflicted due to premeditation
clearly establish that the appellant intended to cause the
injury. Once it is established that the accused intentionally
inflicted the injury, then the offence would be murder, if it is
sufficient in the ordinary course of nature to cause death.
We find substance in the contention of the learned counsel
for the appellant that the injury was on the inner part of left
thigh, which is a non-vital organ. Having regard to the facts
and circumstances of the case that the gunshot injury was
caused in the inner part of left thigh, the sufficiency of
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injury to cause death must be proved and cannot be inferred
from the fact that death has taken place. But the prosecution
has not elicited from the doctors that the gunshot injury on
the inner part of left thigh caused rupture of any important
blood vessel and that it was sufficient in the ordinary course
of nature to cause death. Keeping in view the situs and
nature of injury and in the absence of evidence elicited from
the doctor that the said injury was sufficient in the ordinary
course of nature to cause death, we are of the view that it is
a fit case where the conviction of the appellant under
Section 302 IPC should be under Section 304 Part I IPC.
36. The Supreme Court in the case of Surain Singh v. State of
Punjab, reported in (2017) 5 SCC 796 has held as under :
13. Exception 4 to Section 300 IPC applies in the absence
of any premeditation. This is very clear from the wordings
of the Exception itself. The Exception contemplates that the
sudden fight shall start upon the heat of passion on a sudden
quarrel. The Fourth Exception to Section 300 IPC covers
acts done in a sudden fight. The said Exception deals with a
case of provocation not covered by the First Exception,
after which its place would have been more appropriate.
The Exception is founded upon the same principle, for in
both there is absence of premeditation. But, while in the
case of Exception 1 there is total deprivation of self-control,
in case of Exception 4, there is only that heat of passion
which clouds men's sober reason and urges them to deeds
which they would not otherwise do. There is provocation in
Exception 4 as in Exception 1, but the injury done is not the
direct consequence of that provocation. In fact, Exception 4
deals with cases in which notwithstanding that a blow may
have been struck, or some provocation given in the origin of
the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both parties puts
them in respect of guilt upon an equal footing. A "sudden
fight" implies mutual provocation and blows on each side.
The homicide committed is then clearly not traceable to
unilateral provocation, nor could in such cases the whole
blame be placed on one side. For if it were so, the
Exception more appropriately applicable would be
Exception 1. There is no previous deliberation or
determination to fight. A fight suddenly takes place, for
which both parties are more or less to be blamed. It may be
that one of them starts it, but if the other had not aggravated
it by his own conduct it would not have taken the serious
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
turn it did. There is then mutual provocation and
aggravation, and it is difficult to apportion the share of
blame which attaches to each fighter.
14. The help of Exception 4 can be invoked if death is
caused (a) without premeditation, (b) in a sudden fight, (c)
without the offenders 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 IPC. 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 a cruel or
unusual manner. The expression "undue advantage" as used
in the provision means "unfair advantage".
15. In State of A.P. v. Rayavarapu Punnayya, this Court
while drawing a distinction between Section 302 and
Section 304 held as under: (SCC pp. 386 & 388-89, paras
12 & 21)
"12. In the scheme of the Penal Code, "culpable
homicide" is genus and "murder" its specie. All
"murder" is "culpable homicide" but not vice versa.
Speaking generally, "culpable homicide" sans "special
characteristics of murder", is "culpable homicide not
amounting to murder". For the purpose of fixing
punishment, proportionate to the gravity of this
generic offence, the Code practically recognises three
degrees of culpable homicide. The first is, what may
be called, "culpable homicide of the first degree". This
is the greatest form of culpable homicide, which is
defined in Section 300 as "murder". The second may
be termed as "culpable homicide of the second
degree". This is punishable under the first part of
Section 304. Then, there is "culpable homicide of the
third degree". This is the lowest type of culpable
homicide and the punishment provided for it is, also,
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
the lowest among the punishments provided for the
three grades. Culpable homicide of this degree is
punishable under the second part of Section 304.
* * *
21. From the above conspectus, it emerges that
whenever a court is confronted with the question
whether the offence is "murder" or "culpable homicide
not amounting to murder", on the facts of a case, it
will be convenient for it to approach the problem in
three stages. The question to be considered at the first
stage would be, whether the accused has done an act
by doing which he has caused the death of another.
Proof of such causal connection between the act of the
accused and the death, leads to the second stage for
considering whether that act of the accused amounts to
"culpable homicide" as defined in Section 299. If the
answer to this question is prima facie found in the
affirmative, the stage for considering the operation of
Section 300 of the Penal Code, is reached. This is the
stage at which the court should determine whether the
facts proved by the prosecution bring the case within
the ambit of any of the four clauses of the definition of
"murder" contained in Section 300. If the answer to
this question is in the negative the offence would be
"culpable homicide not amounting to murder",
punishable under the first or the second part of Section
304, depending, respectively, on whether the second or
the third clause of Section 299 is applicable. If this
question is found in the positive, but the case comes
within any of the exceptions enumerated in Section
300, the offence would still be "culpable homicide not
amounting to murder", punishable under the first part
of Section 304 of the Penal Code."
(emphasis in original)
16. In Budhi Singh v. State of H.P. this Court has held as
under: (SCC p. 672, paras 18-19)
"18. The doctrine of sudden and grave provocation is
incapable of rigid construction leading to or stating
any principle of universal application. This will always
have to depend on the facts of a given case. While
applying this principle, the primary obligation of the
court is to examine from the point of view of a person
of reasonable prudence if there was such grave and
sudden provocation so as to reasonably conclude that
it was possible to commit the offence of culpable
homicide, and as per the facts, was not a culpable
homicide amounting to murder. An offence resulting
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
from grave and sudden provocation would normally
mean that a person placed in such circumstances could
lose self-control but only temporarily and that too, in
proximity to the time of provocation. The provocation
could be an act or series of acts done by the deceased
to the accused resulting in inflicting of injury.
19. Another test that is applied more often than not is
that the behaviour of the assailant was that of a
reasonable person. A fine distinction has to be kept in
mind between sudden and grave provocation resulting
in sudden and temporary loss of self-control and the
one which inspires an actual intention to kill. Such act
should have been done during the continuation of the
state of mind and the time for such person to kill and
reasons to regain the dominion over the mind. Once
there is premeditated act with the intention to kill, it
will obviously fall beyond the scope of culpable
homicide not amounting to murder. ..."
17. In Kikar Singh v. State of Rajasthan, this Court held as
under: (SCC pp. 242-43, paras 8-9)
"8. The counsel attempted to bring the case within
Exception 4. For its application all the conditions
enumerated therein must be satisfied. The act must be
committed without premeditation in a sudden fight in
the heat of passion; (2) upon a sudden quarrel; (3)
without the offender's having taken undue advantage;
(4) and the accused had not acted in a cruel or unusual
manner. Therefore, there must be a mutual combat or
exchanging blows on each other. And however slight
the first blow, or provocation, every fresh blow
becomes a fresh provocation. The blood is already
heated or warms up at every subsequent stroke. The
voice of reason is heard on neither side in the heat of
passion. Therefore, it is difficult to apportion between
them respective degrees of blame with reference to the
state of things at the commencement of the fray but it
must occur as a consequence of a sudden fight i.e.
mutual combat and not one side track. It matters not
what the cause of the quarrel is, whether real or
imaginary, or who draws or strikes first. The strike of
the blow must be without any intention to kill or
seriously injure the other. If two men start fighting and
one of them is unarmed while the other uses a deadly
weapon, the one who uses such weapon must be held
to have taken an undue advantage denying him the
entitlement to Exception 4. True the number of
wounds is not the criterion, but the position of the
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
accused and the deceased with regard to their arms
used, the manner of combat must be kept in mind
when applying Exception 4. When the deceased was
not armed but the accused was and caused injuries to
the deceased with fatal results, the Exception 4
engrafted to Section 300 is excepted and the offences
committed would be one of murder.
9. The occasion for sudden quarrel must not only be
sudden but the party assaulted must be on an equal
footing in point of defence, at least at the onset. This is
specially so where the attack is made with dangerous
weapons. Where the deceased was unarmed and did
not cause any injury to the accused even following a
sudden quarrel if the accused has inflicted fatal blows
on the deceased, Exception 4 is not attracted and
commission must be one of murder punishable under
Section 302. Equally for attracting Exception 4 it is
necessary that blows should be exchanged even if they
do not all find their target. Even if the fight is
unpremeditated and sudden, yet if the instrument or
manner of retaliation be greatly disproportionate to the
offence given, and cruel and dangerous in its nature,
the accused cannot be protected under Exception 4.
..."
37. The deceased Jagdish was in habit of creating nuisance after
consuming liquor. Although 1 lacerated wound, 4 abrasions and 2
contusions were found on the dead body of Jagdish, but from the
evidence itself, it is clear that 2 contusions must have been caused on
the back of the deceased while he was been dragged. So far as
abrasions are concerned, 3 of them are on hands and one is on his
cheek. Only injury no. 1, which is a lacerated wound on the head of
injured Jagdish, was found to be fatal. The manner in which the
incident took place, the reasons behind the incident, coupled with the
fact that only one lathi blow was given on the front part of skull, as
well as the incident took place all of a sudden, without any pre-
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
meditation, this Court is of the considered opinion, that the act of the
Appellant Gopal (As Amar Singh has already expired) would not fall
under Section 302 of IPC. However, atleast 5 blows were given and
the deceased was dragged, therefore, it is held that the Appellant
Gopal is guilty of offence under Section 304-Part 1 of IPC.
Accordingly, the Appellant Gopal is acquitted of charge under
Section 302 of IPC and is convicted under Section 304 Part 1 of
IPC.
38. So far as the question of sentence is concerned, it is submitted
by the Counsel for the Appellant Gopal that the Appellant Gopal is in
jail for more than 12 years i.e., 191 days as an undertrial and after his
conviction by judgment and sentence dated 11-8-2010, he has not
been granted bail. The record of this appeal shows that the appellant
Gopal was never released on bail, except for a period of 15 days by
order dated 27-11-2020. Further, it is clear from the order dated 22-
1-2021, that the Appellant Gopal had surrendered after the period of
temporary bail was over. Thus, it is clear that the Appellant Gopal is
in jail from 11-8-2010 i.e., 11 years and 5 months after conviction.
Thus, it is clear that the appellant Gopal has already undergone,
actual jail sentence of approximately 12 years,, therefore, the
Appellant Gopal is sentenced for the period already undergone by
him and a fine of Rs. 500/- in default 3 months R.I.
39. With aforementioned modifications, the judgment and
sentence dated 11-8-2010 passed by Additional Sessions Judge,
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Gopal Vs. State of M.P. (Cr.A. No. 831 of 2010)
Pichhore, Distt. Bhind in S.T. No.269/2009 is hereby Affirmed.
40. The appellant is in jail. He be released immediately if not
required in any other case.
41. The Registry is directed to immediately provide a copy of this
Judgment to the appellant, free of cost.
42. Let the record of the Trial Court be sent back along with copy
of this Judgment for necessary information and compliance.
43. With aforesaid modifications, the appeal is Partially allowed.
(G.S. Ahluwalia) (Deepak Kumar Agarwal)
Judge Judge
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