Ravi @ Kalu vs The State Of Madhya Pradesh
2022 Latest Caselaw 2974 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 3rd OF MARCH, 2022

                 CRIMINAL APPEAL No. 3925 of 2018

 Between:-
 RAVI @ KALU S/O KANHIYALLA , AGED ABOUT 22 YEARS, OCCUPATION:
 LABOUR, R/O- 512, BHAGIRATHPURA, INDORE (MADHYA PRADESH)
                                                            .....APPELLANT
 (BY SHRI HARSHWARDHAN PATHAK, LEARNED COUNSEL FOR THE
 APPELLANT.)

 AND

 THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THR.PS.
 PARDESHIPURA, INDORE (MADHYA PRADESH)
                                                         .....RESPONDENTS
 (BY SHRI KAMAL KUMAR TIWARI, LEARNED GOVT. ADVOCATE FOR THE
 RESPONDENT/STATE.)
                           JUDGMENT

Indore:- Dated:-03.03.2022 PER VIVEK RUSIA, J:-

Today, this appeal is listed on repeat application for suspension of sentence filed by the [email protected] With the consent of both the parties appeal is heard finally.

The appellant has been convicted under section 302 of the IPC and section 25(1-b)(b) of the Arms Act and sentenced to undergo Life Imprisonment and 1 year respectively with a fine of Rs.1,000/- & Rs.500/- respectively in default of payment of fine amount additional 2 months and 1 month R.I. Respectively vide judgment dated 23.09.2016 in Sessions Trial No.329/2013 passed by the Sessions Judge, Indore.

At the very outset, learned counsel for the appellant submits that the appellant is not assailing the judgment on merits seeking a limited prayer that the offence would not travel more than section 304 (Part-II) of the IPC in respect of section 302 of the IPC therefore, the offence be altered and the

- : 2 :-

sentence be reduced from Life Imprisonment to the period already undergone by the appellant. He further submitted that the appellant was aged about 22 years of age the very relevant point of time. He is in custody since 15.02.2013. He has remained incarceration the best period of his life therefore, one last chance of reformatory is liable to be given to the appellant. Counsel further submits that the dispute has occurred suddenly without premeditation. It is a case of single stab injury which has turned fatal therefore, it is a fit case for conviction under section 304 (Part-II) of the IPC.

The prosecution story of this case in short is as under: -

(i) On 14.02.2013, Pushpendra Shetty, complainant-Laxman and deceased Prem Rai were travelling in auto No.MP-09-LP-1804. Near Mangilal crossing they get down from the auto for purchasing cigarettes where this accused was present and after some altercation between them he has stabbed the injury 6 and 7 ribs and punctured the heart and resultantly Prem Rai has expired. The appellant was arrested and since then he is in custody. After evaluating the evidence came on record the learned Sessions Judge, has convicted the appellant under section 302 of the IPC as well as with Section 25(1-b)(b) of the Arms Act and sentenced as stated above.

Shri Kamal Kumar Tiwari, learned Dy. A.G. for the respondent/State opposes the prayer by submitting that the appellant with the intention to kill Prem Rai has stabbed on the vital part of the body and even the single stab injury has turned fatal therefore, he has rightly been convicted under section 302 of the IPC.

We have heard the learned counsel for the parties and perused the record and examined the evidence.

According to P.W.-1 Laxman there was a verbal conversation between Ravi and Prem Rai and Ravi has objected to it and all of a sudden Ravi took out the knife and inflicted injury to Prem Rai and he fell down and accused Ravi ran away. Then Prem Rai was taken to the Verma Hospital where he was declared dead. The same evidence was given by Pushpendra Singh P.W.-2. So far the culpability of the appellant is concerned it is not under challenged hence, is hereby upheld. The cause of death and the nature of the injuries are also not in disputed that the death is homicidal. We are not required to re-examine again as there is no dispute. The only issue that

- : 3 :-

dispute has occurred suddenly and in a heat of passion and without premeditation.

The Hon'ble Supreme Court has also held in the case of Arjun and Anr. Vs. The 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.............."

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'."

- : 4 :-

In the case of Sikandar Ali Vs. The state of Maharashtra, AIR 2017 SC 2614, the Court altered the conviction u/s 302 IPC to one u/s 304 part-II IPC in the following circumstances:

"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 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."

In view of the above discussion and law laid down by the Apex court in the aforesaid case, the statement given by P.W.-1 and P.W.-2 it is a fit case for altering the conviction under section 302 of the IPC to Section 304 (Part-II) of the IPC. The conviction and sentence are hereby altered. The sentence of Life Imprisonment is reduced to the period already undergone by the appellant. The appeal is partly allowed and it is directed that the appellant be released from jail if not required in any other case.

(VIVEK RUSIA) (AMAR NATH (KESHARWANI)) JUDGE JUDGE Ajit/-

AJIT Digitally signed by AJIT KAMALASANAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE,

KAMALAS postalCode=452001, st=Madhya Pradesh, 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6 cba241effad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61 A1EE901C09EF29,

ANAN serialNumber=7F0BEE2D78BD57DA058F324744 1C87E7E0817FB61F5E2ABCAEE63CAAA7B3B9FF , cn=AJIT KAMALASANAN Date: 2022.03.04 18:52:51 +05'30'