Madan Gir And Anr. vs The State Of Madhya Pradesh
2022 Latest Caselaw 9803 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 18th OF JULY, 2022


            CRIMINAL APPEAL No. 173 of 2014

        Between:-
        MADAN GIR AND ANR. S/O KARAN GIR GOSIA,
1.      AGED ABOUT 35 YEARS, KATIYA P.S. SUWASARA
        (MADHYA PRADESH)
        VIKRAM S/O LALUGIR , AGED ABOUT 28 YEARS,
2.      OCCUPATION: KATIYA P.S. SUWASRA (MADHYA
        PRADESH)
                                        .....APPELLANT
        (BY MS. MEHUL SHUKLA ON BEHALF OF SHRI
        GAURAV SHRIVASTAVA, ADVOCATE)

        AND

        THE STATE OF MADHYA PRADESH GOVT. THRU.
        P.S. SUWASRA, DIST. MANDSAUR (MADHYA
        PRADESH)
                                     .....RESPONDENTS
        (BY SHRI KAMAL KUMAR TIWARI, GOVT.
        ADVOCATE)
       This appeal coming on for hearing this day, JUSTICE
VIVEK RUSIA passed the following:
                       JUDGMENT

Today criminal appeal is listed on I.A. No.9375/2022, which is the second application under Section 389(1) of the Code of Criminal Procedure, 1973 for suspension of jail sentence and grant of bail filed on behalf of appellant No.1 - Madan Gir S/o Karan Gir but with the consent of parties appeal is heard finally.

01. The present Criminal Appeal is filed under Section 374 of the Cr.P.C. against the judgment of conviction and sentence dated 02.01.2014 passed by the Additional Sessions Judge, District - Mandsaur in Sessions Trial No.79/2010, whereby the appellant has been convicted for the offences punishable under Sections 302 and 302/34 and 323 of the Indian Penal Code and sentenced to undergo Life Imprisonment along with fine of Rs.100/- (under Section 302 & 302/34) and fine of Rs.500/- (under Section 323) respectively. With a default clause to further undergo 15 - 15 days' rigorous imprisonment. During the pendency of this appeal, appellant No.2 died, hence, the present appeal is only in respect of appellant No.1.

02. As per the prosecution story, the appellant - Madan Gir and the deceased - Shantu @ Shanti Gir are the son of the complainant - Karan Gir. As per the undisputed facts, the wife of Karan Gir i.e. Dhapu Bai died. For performing the last rituals after the death, cards were printed, for which deceased - Shantu @ Shanti Gir has incurred all the expenses. Since in the said cards the name of the appellant i.e. Madan Gir was not printed

being a son of Dhapu Bai, he became annoyed and came to the house of the complainant along with appellant No. no 2 ( now dead). He questioned the deceased as to why his name is not there on the cards, the deceased replied that since he has not contributed in terms of money, hence, his name is not on the card. The appellant became annoyed and stabbed Shantu @ Shanti Gir twice, due to which he died. An F.I.R. was lodged by the father of the deceased and appellant. As per the doctor's opinion, the deceased suffered two stab wounds and died. He opined that the death is homicidal. Accordingly, appellant No.1 and appellant No.2 (since now dead) were arrested and put on trial. After evaluating the evidence that came on record, the trial Court convicted the accused persons for the aforementioned offences.

03. Learned counsel appearing on behalf of the sole appellant submits that this case falls under Exception IV of Section 300 of the I.P.C. as the appellant caused stab injuries to his brother out of anger for which at the most he is liable to be convicted under Section 304 Part - I of the IPC. He has undergone more than 12 years of the sentence and including remission, almost 14 years, hence, the period of Life Imprisonment be reduced to the period already undergone by him. Learned counsel further submits that appellant is not assailing the findings recorded against him by the learned

Additional Session Judge but seeking limited relief only to the extent of reducing the jail sentence from Life Imprisonment to the period already undergone by the appellant by altering the conviction from Section 302 to 304 Part - I of the IPC.

04. Learned Government Advocate for the respondent / State opposes the aforesaid prayer by submitting that the appellant went to the house of the deceased carrying a knife in his pocket with an intention to kill him, therefore, he has rightly been convicted u/s 302 of the I.P.C.

05. We have heard learned counsel for the parties at length and perused the record.

06. It is not in dispute that the father of this appellant deposed against him but the fact remains that he has completed more than 12 years of jail sentence without any remission. Otherwise also, it is not a case of the previous enmity between two brothers. The appellant was annoyed as his name was not printed on the invitation card printed for the ceremony to be held after the death of his mother. When he asked the deceased why his name has not been printed then the deceased replied that since he did not spend any money, therefore, his name has not been printed. On getting such type of rude reply, he became annoyed and stabbed the deceased twice. After causing injuries, he fled away from the spot and threw the knife in an open place. The evidence came on record reveals that the knife from which

the injuries were caused was normally used in the kitchen and as per the seizure memo, the total length of the knife is 8 inches. The appellant is not a hardcore criminal, there was no previous enmity between the two brothers, he has caused injuries out of anger without any premeditation and before causing injuries, there was a heated conversation between them, which annoyed the appellant and he stabbed the deceased, therefore, in view 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 offence will not travel more than Section 300 exception IV of the IPC for which the appellant is liable to be convicted for the offence punishable under Section 304 Part - I.

07. 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.............."

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'."

08. 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 premeditation, 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.

09. Looking to the fact that the appellant has undergone more than 12 years of the actual sentence and he had no criminal before the date of this incident, there is no adverse report from the jail about his conduct and in our considered opinion, a chance should be given to reform him, hence, the sentence of Life Imprisonment is liable to be reduced to the period already undergone by the appellant.

10. In view of the above discussion and verdicts of the Apex Court, the judgment of conviction and sentence dated 02.01.2014 convicting the appellant is hereby confirmed. So far as the culpability of the appellant is concerned, the same is maintained but the conviction is altered from Section 302 IPC to Section 304

Part 1 of IPC. Since the appellant has undergone 12 years of actual sentence, he be released from jail if he is not required to keep in jail in any other case.

Criminal Appeal stands partly allowed to the extent indicated above.

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

     (VIVEK RUSIA)                           (AMAR NATH (KESHARWANI))
        JUDGE                                        JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2022.07.21 18:51:16 +05'30'