Dinesh vs The State Of Madhya Pradesh
2022 Latest Caselaw 3830 MP

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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                              BEFORE
                HON'BLE SHRI JUSTICE VIVEK RUSIA
                                 &
                HON'BLE SHRI JUSTICE ANIL VERMA

                    ON THE 21st OF MARCH, 2022

                CRIMINAL APPEAL No. 49 of 2013

 Between:-
 DINESH S/O LAXMAN DHANGAR MALVADA TEH. KUKSHI,DHAR
 (MADHYA PRADESH)
                                                     .....APPELLANT
 (BY MS. SHANNO KHAN, LEARNED COUNSEL FOR THE APPELLANT.)

 AND

 THE STATE OF MADHYA PRADESH GOVT. THRU. P.S. KUKSHI, DHAR
 (MADHYA PRADESH)
                                                  .....RESPONDENTS
 (BY SHRI KAMAL KUMAR TIWARI, LEARNED GOVT. ADVOCATE FOR THE
 RESPONDENT/STATE.)
                       JUDGMENT

Indore:- Dated:-21.03.2022 PER VIVEK RUSIA, J:-

Today, this appeal is listed on I.A. No.3513/2022 repeat second application for suspension of sentence filed by the appellant. But with the consent of both the parties this criminal appeal is heard finally.

The appellant has filed this criminal appeal against the judgment dated 22.10.2011 passed in Sessions Trial No.205/2011 by II Additional Sessions Judge, Fast Track Court, Dhar whereby he has been convicted under section 302 of the I.P.C. and sentenced to undergo Life Imprisonment with a fine of Rs.3,000/- in default of payment of fine amount additional 3 months S.I.

As per prosecution story, on 03.02.2011 a pre MLC was sent to police station Nisarpur from Barwani hospital. S.H.O. went to the

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hospital and recorded the statement of Sarika, according to her on 29.01.2011 near about 4 p.m. she was cooking the food & her husband/appellant-Dinesh was in the house, as the chappatis were not being cooked as per his choice so he has started assaulting her and thereafter, poured kerosene oil from the lantern and set her ablaze. She came outside, Govind saved her and took her to the hospital. After recording the statement of Sarika police an FIR was registered at crime no.9/2011 under section 307 of the IPC. On 05.02.2011 an appellant was arrested. During treatment due to post burning complications she died and accordingly section 302 of the IPC has been inserted in place of Section 307 of the IPC. Police initiated the investigation and autopsy was carried out and Medical Officer, district hospital, Barwani Dr. S. Kumar who opined that the deceased had died due to the shock and due to excessive burn on the body leading to cardio respiratory failure.

After completing the investigation charge sheet was filed and prosecution has examined as many as 9 witnesses. In defense the appellant did not examined anyone however, pleaded for false implication.

Vide judgment dated 22.10.2011 II Additional Sessions Judge, Fast Track Court, Dhar has convicted the appellant under section 302 of the I.P.C. and sentenced as stated above.

At the very outset, learned counsel for the appellant submits that she is not assailing the findings recorded by the court below on merits, in respect of the date of incident took, cause of death and complicity of this appellant etc. however, she submits that looking to the entire facts and circumstances taken as it is the offence will not travel more than section 300 (Explanation IV) of the IPC. She submits that appellant and deceased are husband and wife and the dispute took place as deceased was not making chappatis as per the

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choice of the appellant therefore, he assaulted her wife and thereafter poured kerosene oil and set her ablaze. There was no pre-meditation as the incident took place in the heat of passion due to sudden quarrel between husband and wife. She further submits that the appellant is in custody since 05.01.2011 and completed more than 11 years of incarceration therefore, for the offence under section 304 (Part-II) of the IPC he has already undergone sufficient period of incarceration hence, instead of hearing the appeal on suspension of sentence may kindly be disposed of this appeal finally.

Shri Kamal Kumar Tiwari, learned Govt. Advocate for the respondent/State opposes the prayer by submitting that the appellant with intension to kill ablazed his wife and there is no dispute that she died because of burn injuries hence, 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.

There was no previous enmity or any previous dispute between them. There was no preparing or premeditation in the mind of appellant to murder his wife. In a heat of passion, out of anger he ablazed her by pouring 100-150 ml oil from chimney. He took the deceased to the hospital for treatment. There was burn of 20% to 30 % only. In rural areas assault to wife by husband on petty issue is very common, sometimes it turns fatal. The appellant is not hardened criminal or known criminal.

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.

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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'."

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

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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, 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.

Record be sent back to the learned trial court with copy of this order.

          (VIVEK RUSIA)                                                          (ANIL VERMA)
              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, postalCode=452001,
                      st=Madhya Pradesh,


KAMALASA              2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba2
                      41effad892107d95ef0a1afc55b4,

pseudonym=CFDFD9C36711CA738F527A5D61A1EE 901C09EF29,

NAN serialNumber=7F0BEE2D78BD57DA058F3247441C8 7E7E0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2022.03.23 11:13:57 +05'30'