Lalaram vs The State Of Madhya Pradesh
2022 Latest Caselaw 8833 MP

                        -1-


     IN THE HIGH COURT OF MADHYA PRADESH

                     AT INDORE
                      BEFORE
        HON'BLE SHRI JUSTICE VIVEK RUSIA
                         &
 HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
              ON THE 4th OF JULY, 2022
       CRIMINAL APPEAL No. 3501 of 2018
 Between:-
  LALARAM     S/O    KHUMSINGH
  BARELA , AGED ABOUT 25 YEARS,
1 OCCUPATION:      AGRICULTURE
. OLOKO FALIYA KOT KIRADI THANA
  SENDHWA    GRAMIN    DISTRICT
  BARWANI (MADHYA PRADESH)
  CHANYA    S/O   DHARAMSINGH
  BARELA , AGED ABOUT 23 YEARS,
2
  OLOKA FALIYA KOT KIRADI THANA
.
  SEDHAVA GRAMIN DIST. BARWANI
  (MADHYA PRADESH)
                                         .....APPELLANT
 (MS. SHARMILA SHARMA, ADVOCATE)

 AND

 THE STATE OF MADHYA PRADESH
 STATION HOUSE OFFICER THR.PS.
 SENDHWA    GRAMIN   DISTRICT
 BADWANI (MADHYA PRADESH)
                                    .....RESPONDENTS
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     (SHRI BHASKAR AGRAWAL,GOVT. ADVOCATE)
        This appeal coming on for order this day, JUSTICE VIVEK

RUSIA passed the following:

                          JUDGMENT

Today this appeal is listed on hearing of I.A.No.5871/2022 which is an application seeking suspension of sentence of appellants, looking to the period of custody and nature of the offence, learned counsel for the appellants has argued this appeal finally on the limited grounds .

2. The appellants have filed the present Criminal under Section 374 of the Code of Criminal Procedure, 1973 being aggrieved by the judgment of conviction and sentence dated 06.02.2015 passed by the Second Additional Sessions Judge,Sedhwa, District Barwani in Sessions Trial No.48/2012, whereby, they have been convicted for the offence punishable under Sections 302/34 of the Indian Penal Code and sentenced to undergo Life Imprisonment along with fine of Rs.5,000/- with default clause to further undergo one- month additional rigorous imprisonment.

3. As per the prosecution story, on 16.01.2012, the appellants Lalaram and Chanya had told Jagan to come along with them for beating a drum, when he refused they started abusing him. Again deceased (Jagan) refused to go with them, both the appellants started assaulting him by means of sticks. The deceased (Jagan) sustained injuries and was taken to the hospital where he was declared dead. An FIR was registered under Sections 302,294 and

506 of IPC at Crime No.3/2012. The appellants were arrested and from their disclosure, the blood-stained sticks were recovered. Spot Map (Exhibit-P-2) was drawn and an autopsy was conducted in which the death was found homicidal. As per the Autopsy Report (Exhibit P-9), the deceased (Jagan) died due to injuries to the vital organ of the brain and clotting of blood. After investigation, a charge sheet was filed. The appellants were put to trial. The prosecution has examined as many as 12 witnesses to establish the charges. Out of 12 witnesses, only Durga (PW-1) and Pyar Singh (PW-8) have supported the case of the prosecution as ocular witnesses. The doctor Dr B.S.Chauhan (PW-6) has been examined, who has proved the autopsy report.

4. After evaluating the evidence that came on record, the learned Additional Sessions Judge Second Additional Sessions Judge,Sedhwa, District Barwani in Sessions Trial No.48/2012, whereby, they have been convicted for the offence punishable under Sections 302 of the Indian Penal Code and sentenced to undergo Life Imprisonment along with fine of Rs.5,000/- with default clause to further undergo one month additional rigorous imprisonment.

5. Learned counsel for the appellants submits that both the appellants are in jail since last more than ten years. At the time of arrest, they were aged about 20 and 22 years respectively. The dispute suddenly arose between the appellants and the deceased (Jagan) as he was not ready to go with them to beat the drum in

some celebration. There was no previous enmity between the appellants and the deceased (Jagan), therefore the offence comes under Section 300 exception IV of the IPC for which the appellants are liable to be convicted under Section 304 Part I of IPC. Learned counsel for the appellant further submits that since they have completed more than ten years of jail sentence and have no criminal records, therefore, their jail sentence of the appellants may kindly be reduced from the period already undergone.

6. Learned counsel for the respondent/State opposes the prayer by submitting that the appellants assaulted the deceased by means of sticks on the vital part of the body with an intention to kill him and they have been rightly convicted under Section 302 of IPC by the trial Court.

7. We have heard and examined the record.

8. According to Durga (PW-1), who is an elder brother of the deceased, he was sitting with his brother and both the appellants came and pressurized his brother (deceased) to come along with them to beat a drum, which he refused. They started abusing him and since they were carrying sticks with them, they started assaulting him. Pyar Singh (PW-8) has also supported the case of the prosecution. According to the prosecution story, there was no previous enmity between them. Since the deceased was not ready to go along with the appellants, therefore, they first abused and then assaulted the deceased.

9. At the most it is a case of a sudden provocation and assault

in the heat of passion or out of anger, the appellants had abused and assaulted the deceased by means of sticks due to which he died. There was no pre-meditation or pre-planned murder.

10. In various judgments of the Apex Court reported in 2018(3) M.P.L.J (Cri) (S.C.) 311 State of M.P. Vs. Abdul Latif and in (2019) 2 SCC (Cri) 746 Rambir Vs. State (NCT of Delhi) in the similar facts and circumstances murder of wife by her husband due to a quarrel took place between them, the Apex Court has held that the offence would not travel more than Section 304 Part I and Part II of IPC because it falls under the Exception 4 to Section 300 of IPC.

11. In view of the law laid down by the Apex Court in the cases of Gurpal Singh v/s The State of Punjab reported in AIR 2017 SC 471, Arjun & Another v/s The State of Chhattisgarh reported in AIR 2017 SC 1150, Prabhakar Vithal Gholve v/s The State of Maharashtra reported in AIR 2016 SC 2292, Sikandar Ali v/s The State of Maharashtra reported in AIR 2017 SC 2614, Madhavan & Others v/s The State of Tamil Nadu reported in AIR 2017 SC 3847 and Ankush Shivaji Gaikwad v/s The State of Maharashtra reported in (2013) 6 SCC 770, the act of the appellants would be under Section 300 exception IV of the IPC for which they are liable to be convicted for the offence punishable under Section 304 Part -I I.P.C. .

12. The Hon'ble Supreme Court has held in Arjun & Another (supra) that:

'20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. Union Territory of Chandigarh (1989) 2 SCC 217 : (AIR 1989 SC 1094, Para 6), it has been explained as under:

"7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.............."

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'."

13. The Hon'ble Supreme Court has laid down in Prabhakar Vithal Gholve v/s The State of Maharashtra reported in AIR 2016 SC 2292 that if the assault on the deceased could be said to be on account of the sudden fight without pre-meditation, in heat of passion and upon a sudden quarrel, Conviction of the appellant cannot be sustained under Section 302 and altered to under Section 304 Part-I of IPC.

14. Looking to the fact that the appellants have no criminal past, the sentence of Life Imprisonment is liable to be reduced to the

period already undergone.

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 are concerned, the same is maintained but conviction is altered to Section 304 Part I of IPC, instead of Section 302 of IPC. Accordingly sentenced is reduced to the period already undergone by the appellant. The fine amount is maintained. Both the appellants Lalaram and Chanya be released from jail after depositing the fine amount, if they are not required to be kept in jail in any other case.

16. With the aforesaid, the Criminal Appeal stands partly allowed.

17. Let the record of the trial Court be sent back along with the copy of this judgment.

        (VIVEK RUSIA)               (AMAR NATH (KESHARWANI))
          JUDGE                          JUDGE

            Digitally signed by
das
            REENA PARTHO
            SARKAR
            Date: 2022.07.05
            18:10:23 +05'30'