Madhya Pradesh High Court
Ramkishan vs The State Of Madhya Pradesh on 30 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 30th OF MARCH, 2022
CRA.No.1987/2014
C
Between:-
RAMKISHAN S/O NANURAM, AGED ABOUT 44 YEARS,
OCCUPATION: GOVT. TEACHER,R/O GRAM KALALIA, TEH. JAORA
DISTRICT RATLAM(MADHYA PRADESH)
.....APPELLANT
(BY SHRI VIRENDRA SHARMA, ADVOCATE)
AND
(1)THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THRU. P.S. RINGNOD, TEH. JAORA (MADHYA PRADESH)
(2) MANGILAL S/O RAMLAL RAIKWAR R/O VILLAGE KANCHAN
KHEDI, TEHSIL PIPLODA,DISTRICT RATLAM.
.....RESPONDENTS
(BY SHRI K.K.TIWARI, GOVT.ADVOCATE
AND SHRI N.DAVE, ADVOCATE )
This appeal coming on for order/other this day, JUSTICE
VIVEK RUSIA passed the following:
JUDGMENT
Today this appeal is listed on hearing of I.A.No.3853/2022
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 the present Criminal under Section
374 of the Code of Criminal Procedure, 1973 being aggrieved by
the judgment of conviction and sentence dated 10.11.2014 passed
by the First Additional Sessions Judge, Jaora, District Ratlam in
Sessions Trial No.38/2013, whereby, he has been convicted for the
offence punishable under Sections 302 of the Indian Penal Code
and sentenced to undergo Life Imprisonment along with fine of
Rs.1,00,000/- with default clause to further undergo two months'
additional rigorous imprisonment.
3. As per the prosecution story, on 09.11.2011, complainant
Annubai (PW-1) lodged a report at police station that near about
7.00 AM when she went to the house of deceased Rukmani Bai she
found the door open. After calling, she entered into the house and
found that the appellant and deceased were fighting. The appellant
was strangulating the neck of the deceased. She came out and after
sometime again she went inside the house and saw the deceased
lying dead. She noticed the sign of strangulation on the neck of the
deceased. According to her appellant and deceased used to doubt
over the character of each other and that was the cause of dispute
between them. She immediately went to the bus stand and went
along with Ramesh Patidar in his motor cycle to the police station
Ringnod and gave the information about the aforesaid incident.
FIR was registered at Crime No.289/2012. The appellant was
arrested. Investigation was completed and charge sheet was filed
for the offence under Section 302 of IPC. Appellant denied the
charges. The trial was committed to the Sessions Court and the
appellant was tried under Section 302 of IPC.
4. The prosecution has examined as many as 6 witnesses to
establish the charges against the present appellant. In defence, the
appellant has examined three witnesses namely Radheshyam s/o
Phulchand (DW-1), Dashrath Basa (DW-2) and Radheshyam S/o
Dulichandra (DW-3). After evaluating the evidence came on
record, the learned Additional Sessions Judge has discarded the
evidence against the appellant and held that the prosecution has
failed to prove the charge beyond reasonable doubt and
accordingly, convicted the appellant under Section 302 of the IPC.
Hence, this appeal before this Court.
5. We have heard learned counsel for the parties and perused
the record.
6. Undisputedly, the appellant and the deceased were husband
and wife and it was second marriage of both of them. The
prosecution has examined the star witness Annubai (PW-1), who
was witness of the incident and has fully supported the case of the
prosecution. The prosecution has also examined Mangilal (PW-2),
who is brother of the deceased and according to him appellant used
to assault the deceased and twenty months ago also he had
assaulted her for which a report was lodged and case was sent to
the Court. Thereafter, a compromise was arrived between them.
7. The postmortem of the deceased was carried out by
Dr.Shankarlal Kharadi (PW-5) Medical Officer, Civil Hospital,
Jaora, and according to his opinion the mode of death was
asphyxia due to ante mortem throttling. It is not a case that husband
and wife were in the house. The dead body of the deceased was
found inside the house. Therefore, the burden was upon the
appellant under Section 106 of the Indian Evidence Act to explain
the cause of death of the deceased. He took a plea of alibi and he
has failed to prove even after examining three witnesses, therefore,
we find no case to interfere with the finding recorded by the Trial
Court.
8. At this stage learned counsel for the appellant submits that
even if the prosecution story is taken as it is, the offence would not
travel more than Section 300 exception IV of the IPC for which the
appellant will be convicted under Section 304 Part II of IPC.
9. At the most it is a case of sudden fight between the husband
and wife and during the said fight in heat of passion and out of
anger, the appellant had strangulated the neck of the deceased due
to which she died.
10. In support of his contention, learned counsel for the
appellant has placed reliance on various judgments of the Apex
Court reported in 2018(3) M.P.L.J (Cri) (S.C.) 311 State of
M.P. Vs. Abdul Latif and in (2019) 2 SCC (Cri) 746 Rambir Vs.
State (NCT of Delhi) in the similar facts and circumstances
murder of wife by her husband due to a quarrel took place between
them, the Apex Court has held that the offence would not travel
more than Section 304 Part I and Part II of IPC because it falls
under the Exception 4 to Section 300 of IPC.
11. Counsel for the respondent/State and complainant opposes
the prayer and submits that the appellant was habitual in assaulting
the deceased/wife, therefore, it cannot be said that due to sudden
provocation of his wife he had strangulated her neck without pre-
meditation.
12. 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.............."
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 be kept 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: 2022.03.31
17:32:26 +05'30'
