Rita Bai vs The State Of Madhya Pradesh
2022 Latest Caselaw 3959 MP

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The High Court of Madhya Pradesh : Bench At Indore
DIVISION BENCH:         HON'BLE MR. JUSTICE VIVEK RUSIA &
                        HON'BLE MR. JUSTICE AMAR NATH (KESHARWANI)

                   Criminal Appeal No.2805/2021
Applicant    -              Rita Bai W/o Late Sukhlal, Caste - Barela
                            Age - 35 years, Occupation - Labour,
                            R/o Village - Piplaya Bujurg (Mangi Falia),
                            Police Station - Bheekangaon,
                            District - Khargone (M.P.)

                            versus

Respondent          -       State of Madhya Pradesh
                            Through Police Station - Bheekangaon,
                            District - Khargone (M.P.)
Indore, dated 23.03.2022
        Shri Javed Khan, learned counsel for the appellant.
        Shri Kamal Kumar Tiwari, learned Government Advocate
for the respondent / State.
        Today this appeal is listed on an application for suspension
of jail sentence and grant of bail, but with consent of the parties,
the appeal is heard finally.
                            JUDGMENT

As per Vivek Rusia, J:

The appellant has filed present Criminal under Section 374 of the Code of Criminal Procedure, 1973 being aggrieved by the judgment of conviction and sentence dated 16.03.2021 passed by the Additional Sessions Judge, Bheekangaon, District - Mandleshwar in Sessions Trial No.7/2019, whereby she has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo Life Imprisonment along with fine of Rs.2,000/-. With default clause to further

undergo six months' additional rigorous imprisonment.

02. As per the prosecution story, the complainant - Gorelal (brother of the deceased) along with her niece Kumkum (daughter of appellant & deceased) lodged an F.I.R. on 09.08.2018 that Sukhlal and his wife (present appellant) used to fight on the issue of consumption of liquor and non-distribution of wages. He tried to settle the dispute between them but failed. Toady at 6:00 in the morning when he was going to answer the call of nature, saw Sukhlal lying unconscious in a pool of blood. He inquired from her niece Kumkum, she told that on the preceding night, there was a fight between her father and mother on the issue of consumption of liquor and her father has put the door latch from outside. Her mother by removing a brick, opened the latch and came outside. Thereafter, her father ran towards her mother with a brick in his hand and her mother threw the brick on him which hit on his head and he fell down. Thereafter, her mother sat on him and started banging on his head with a brick till he became unconscious. Thereafter, she left the place. Gorelal dialled 100 number to call the ambulance and took the deceased to the hospital, Bheekangaon from where he was referred to Khargone Hospital. Initially, the F.I.R. was registered at Crime No.297/2018 under Section 307 of the IPC (Ex-P/1). Police reached the spot and drew the spot map (Ex-P/2), recovered the blood-stained clothes of Sukhlal, blood- stained brick and soil etc. vide seizure memo Ex-P/3. The appellant was arrested vide arrest memo Ex-P/11. Bloodstained clothes of the appellant were seized vide Ex-P/12. The statement of Kumkum was recorded under Section 164 of the Cr.P.C. in which she has

supported the contents of the F.I.R. Sukhlal was referred to M.Y. Hospital, CT Scan was carried out, charge-sheet was filed before the JMFC under Section 307 of the IPC and the trial was committed to the Sessions Court on 02.02.2019.

03. During the pendency of the trial, Sukhlal died on 30.11.2018 and Merg No.85/2018 (Ex-P/4) was registered. The dead body was sent for postmortem and the came to be filed as Ex- P/25. As per the autopsy report, the deceased died due to a fracture of the frontal bone. The supplementary charge sheet was filed under Section 302 of the IPC.

04. The prosecution has examined as many as 12 witnesses. Gorelal (P.W-1), Kumkum (P.W-2) and Santosh Barole (P.W-3) have fully supported the case of the prosecution. Badshah (P.W-4) has a statement in his statement that the deceased and Rita Bai (present appellant) used to fight regularly. The investigation was carried out by Raisingh Gundia (P.W-8).

05. The prosecution has examined Dr. Pratibha Bagraan (P.W-

5) who prepared the MLC (Ex-P/10) and according to which she found as many as five injuries on the body of the deceased and advised for x-ray. She has further stated that the brick was received along with the query report in which she found black colour hair of human.

06. Dr. Aditi Sharma (P.W-10) in her statement has stated that the deceased remained in the hospital from 09.09.2018 to 27.08.2018. There was no improvement even after a repeated CT Scan of the deceased. The deceased was taken to the house from the hospital during treatment where he died after some days. After

evaluating the evidence that came on record, learned Additional Sessions Judge has convicted the appellant under Section 302 of the IPC.

07. Learned counsel for the appellant at the very outset submits that the dispute between the husband and wife arose in the night all of a sudden on the issue of consumption of liquor. It was not a pre-planned murder. As per the statement of Kumkum (P.W-

2), the deceased ran towards the present appellant with a brick in her hand, thereafter, in defence, the appellant threw the brick which hit on the head of the deceased she sat on the deceased and started banging on the head with a brick, hence offence falls under the exception 4 of Section 300 I.P.C. as it is not murder but culpable homicide.

08. It is further submitted by the learned counsel that the evidence that came on record has revealed that an incident occurred all of sudden in the night between husband and wife. She came up with a defence that she has been falsely implicated and the deceased sustained injuries due to falling off the wall on him. She was arrested immediately and sent to jail. There was no one in the family to look after the deceased in the hospital. As per the report of M.Y. Hospital, before the deceased was discharged in unfit condition by one Raja who has not been examined, thereafter, Sukhlal died in the house.

09. Learned counsel for the appellant further submits that the deceased and appellant have five minor children and there is no one in the family to look after them. The appellant is in jail for more than 4-5 years, therefore, she may be directed to be released

after reducing the sentence from Life Imprisonment to the period already undergone by her.

10. Learned Government Advocate is not agreeing to the above contention but supported the impugned judgment and prays for dismissal of the criminal appeal .

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

12. Kumkum (P.W-2) in her statement recorded under section 161 and 164, has specifically stated that her father had put the door latch from outside and the mother came out by removing a brick, and thereafter, her father ran towards her mother with a brick in his hand and in order to save herself, she threw a brick on him which hit on the head of the deceased due to which he fell. Thereafter, out of anger she sat on him and gave repeated blows till he remained unconscious. Therefore, the offence was committed under the heat of passion and out of anger. There was no previous hatred between them. They being husband and wife used to fight daily on the issue of consumption of liquor, 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 - II.

13. 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'."

14. 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 assault on deceased could be said to be on account of 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.

15. Looking to the fact that the appellant being a lady having no criminal past and also the fact that she has five minor children and there is no one in the family to look after them, the sentence of Life Imprisonment is liable reduced to the period of 5 years.

16. 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 appellant is concerned, the same is maintained but conviction is altered to Section 304 Part 1 of IPC, instead of Section 302 of IPC and accordingly sentenced to the period of 5 years with a fine of Rs.5,000/-. The appellant be released from jail after depositing difference of fine amount and on completion of 5 years RI, if she is not required to keep in jail in any other case.

With the aforesaid, the Criminal Appeal stands partly allowed.

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

     (VIVEK RUSIA)                                 (AMAR NATH (KESHARWANI))
       JUDGE                                               JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2022.03.26 18:51:30 +05'30'