Madhya Pradesh High Court
Rajaram @ Rajlya vs The State Of Madhya Pradesh on 26 March, 2022
Author: Vivek Rusia
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 26th OF MARCH, 2022
CRIMINAL APPEAL No. 1431 of 2011
Between:-
RAJARAM @ RAJLYA S/O KARMA BARELA, AGED
ABOUT 40 YEARS, OCCUPATION: AGRICULTRIST
BORKUND P.S.PATTI DISTT.BARWANI (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI BALENDU DWIVEDI PANDIT, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH GOVT.
THRU.P.S.PATTI DISTT.BARWANI (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI K.K. TIWARI, GOVT. ADVOCATE )
This appeal coming on for judgement this day. JUSTICE VIVEK RUSIA
passed the following:
JUDGMENT
Today this appeal is listed on hearing of I.A.No.26891/2021 which is an
application seeking suspension of sentence of sole appellant but with consent of
the parties, the appeal is heard finally.
2. The appellant has filed this present criminal appeal under Section 374
of the Code of Criminal Procedure, 1973 being aggrieved by the judgment of
conviction and sentence dated 27.05.2011 passed by the Sessions Judge, Barwani
in S.T.No.43/2011; whereby, he has been convicted under Section 302 of IPC and
sentenced to undergo life imprisonment.
3. As per the prosecution story, the complainant Karma (PW-1) lodged
a report at police station Pati, District Barwani on 21.3.2011 at about 5.40 PM that
he is resident of Borkund and is an agriculturist. He had gone to village Sidhwani
where Dayaram s/o Doorsingh informed him that his daughter-in-law Bailabai aged
about 35 years has been killed by her husband Rajaram @ Rajliya by means of axe.
She is lying dead in pool of blood. Mother-in-law of deceased Nepabai (PW-2),
sister-in-law Nasra (PW-3) and her son Mukesh @ Muksiya (PW-4) informed that
they were present there while the incident took place. Deceased Bailabai did not
cook food, due to which Rajaram @ Rajliya became annoyed took the axe and
gave a blow on her head and ran away. Sarpanch Suresh (PW-8) was called and
all of them went to the police station to lodge an FIR which was registered at crime
No.46/2011 for the offence punishable under Section 302 of IPC. The appellant
was arrested on 22.3.2011. Investigation was carried out. Dead body of the
deceased was sent for autopsy and as per the doctor's opinion the death was
homicidal. After completing the investigation, charge sheet was filed.
4. The prosecution has examined as many as 12 witnesses in order to
prove the charge. The appellant did not examine any witnesses and no defence has
been taken by him. After evaluating the evidence came on record, the learned
Sessions Judge, Barwani has convicted the appellant under Section 302 of IPC.
5. At the very outset, learned counsel for the appellant submits that
prosecution has produced as many as four eyewitness but none of them have
supported the case of prosecution. The marriage of the deceased Bailabai and
appellant Rajaram @ Rajliya took place 30 years ago. The dispute occurred
suddenly and out of anger, he took out the axe which was lying in the house and
gave a blow on the head of the deceased and she died. It is a case of single blow.
Offence has been committed in heat of passion, hence, at the most it will fall under
Exception IV of Section 300 of IPC for which the appellant is liable to be
convicted under Section 302 of Part I of IPC. He is in custody since the date of
arrest, i.e, 22.3.2011, therefore, he has completed more than 11 years of jail
sentence which is sufficient incarceration for the offence under Section 304 Part I
of the IPC.
6. Counsel for the respondent State opposes the aforesaid prayer by
submitting that the appellant gave a blow by means of axe on the vital part of the
body with full force with an intention to kill. The trial Court has already considered
the ground taken by the appellant about the applicability of Section 304 Part (1)
IPC or Section 304 Part (II) IPC; hence, no interference is called for.
7. Although the prosecution witnesses are not supporting the case of
prosecution but there is recovery of a axe containing blood and the fact that the
appellant was along with the deceased in the house at the time of incident,
therefore, burden under Section 306 of the Indian Evidence Act was upon him.
Therefore, the appellant has rightly been convicted for killing his wife. So far, the
issue is whether it is a case of culpable homicide not amounting to murder. It is
not the case of the prosecution that there was any previous enimity between the
husband and wife (deceased). As per the prosecution case, the deceased did not
cook the food for which the appellant became annoyed and gave a single blow by
means of an axe. Axe is available in every house of a villager; therefore, it cannot
be said that he brought an axe in his house in order to kill his wife.
8. 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
€ÂÂÂÂ" II.
9. 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 having no criminal past, the
sentence of Life Imprisonment is liable to be reduced to the period already
undergone.
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
already undergone with a fine of Rs.3,000/-. The appellant be released from jail
after depositing difference of fine amount, if he is not required to keep in jail in any
other case.
17. With the aforesaid, the Criminal Appeal stands partly allowed.
18. Let the record of the trial Court be sent back along with the copy
of this judgment.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
das
Digitally signed by
REENA PARTHO
SARKAR
Date: 2022.03.28
14:24:16 +05'30'
