Rajesh vs The State Of Madhya Pradesh
2022 Latest Caselaw 6621 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 AMAR NATH (KESHARWANI)

                        ON THE 4th OF MAY, 2022

                CRIMINAL APPEAL No. 902 of 2011

 Between:-
 RAJESH S/O DHASRATH BALAI SITOLE, AGED ABOUT
 35    YEARS,     OCCUPATION:LABOUR,       R/O
 CHIRAKHAN,TEH.MAHESHWAR, DISTT.KHARGONE
 (MADHYA PRADESH)
                                                         .....APPELLANT


 AND

 THE STATE OF MADHYA PRADESH GOVT. THROUGH
 POLICE STATION MANDLESHWAR,DISTT.KHARGONE
 (MADHYA PRADESH)
                                                     .....RESPONDENTS

       Shri Prateek Jain, learned counsel for the appellant.
       Shri Kamal Kumar Tiwari, learned Government Advocate for
the respondent/State.
                           JUDGMENT

Looking to the long pendency of this criminal appeal instead of hearing the application for suspension of sentence, with the consent of the parties same is heard finally.

***** Appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") against the judgment of conviction dated 27.07.2011, passed by District judge, West Nimar Mandleshwar in Sessions Trial No.40/2011, whereby he has been convicted 302 of I.P.C. and sentenced to undergo Life Imprisonment with fine of Rs.1500./- with default stipulation. (2) The case of the prosecution, in brief, is as follows: -

(a) As per prosecution story and statement of Ramesh (PW-2) on

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the date of incident i.e. on 06.10.2010, the appellant came to the residential area of the village with axe in his hand and started shouting and abusing with filthy language generally. The complainant objected to it, due to which a scuffle started between them, and the appellant inflicted injury on his shoulder. Meanwhile, the wife of complainant Rukamni came there and saved him. At that time, the brother-in-law (Mukesh) of the complainant also came there, the appellant inflicted the injury to Mukesh by means of an axe on his stomach. He started bleeding. The aforesaid incidents were witnessed by Yashwant, Rukmani and Kailash. Mukesh was taken to Government Hospital Mandleshwar where he was declared dead. The incident was reported to the police station. Police drew Safina Form and Prepared Lash Panchanama (Ex.P/06). Death body was sent for postmortem by (Ex.P/1). Police registered crime No.319/2010 against the appellant for the offence punishable under Section 302, 294 and 323 of I.P.C. Statement of witnesses were recorded. Police collected Plain Soil and blood stain soil by Ex.P/8. Police arrested the appellant and on his disclosure, recovered the axe. After completion of the investigation. Charge-sheet was filed before the Judicial Magistrate First Class. The trial was committed to the Sessions Court where charges were framed against the appellant under Section 302 and 323 of I.P.C. which he denied and pleaded for trial. The prosecution examined as many as 10 witnesses to prove the charges and exhibited various documents. The prosecution evidence was closed and the accused was examined u/s 313 of Cr.P.C. wherein all incriminating evidence was put to him. The accused submitted that he is innocent and has been falsely implicated in the present case. He further stated due to the previous enmity with him witnesses have deposed against him. (3) After evaluating the evidence that came on record, the trial court has convicted the appellant as stated above. Hence, this appeal before this Court.

(4) Learned counsel for the appellant submits that the appellant has completed 11 years of sentence, therefore, he is not assailing the

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findings of the court on merit. Even if the entire prosecution story is to be believed then the offence will not travel more than under section 304 (Part- II) of I.P.C. As per the statement of Rukmani (PW-4), this appellant came to the locality and started shouting in an abusive manner, when PW-2 objected to him, the scuffle was started between them, meanwhile, the deceased came there and the appellant gave a blow to him by means of the axe. He was taken to the hospital where he was declared dead. It is not a case of the prosecution that the appellant came there with the intention to kill either PW-2 or the deceased. He was only carrying an axe and using filthy language and during the scuffle, he gave a blow, therefore, there was no premeditation or pre-planning, therefore the offence will not travel more than 304 Part -II of I.P.C. Accordingly, the conviction is liable to be converted under section 302 of I.P.C. to 304 Part -II of I.P.C. and the jail sentence may kindly be reduced from life imprisonment to the period already undergone.

(5) Government Advocate opposes the prayer made by the appellant and supported the finding of the trial court.

We have heard the learned counsel for the parties at length and perused the record of the case Looking to the limited prayer now the only issue which requires consideration is whether it is a case of culpable homicide, not amounting to murder and falls in exception IV of the 300 of I.P.C. ?

(6) As per the evidence, that came on record, it appears that there was no premeditation or pre-planning before the commission of the crime by the appellant. A dispute suddenly popped up between the appellant and PW-2 and during the scuffle, the deceased came there and the appellant gave a blow to him. The appellant was not abusing any particular person. He was behaving like a drunken man. Therefore, in our opinion, there is considerable merit in the contention of learned counsel Shri Jain, it is the case of culpable homicidal not amounting to murder and

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certainly will fall under exception IV of section 300 I.P.C. and the appellant is liable to be convicted under section 304 part II I.P.C. We find support from the following judgments passed by the Supreme Court of India in this criminal jurisprudence.

(7) The Hon'ble Supreme Court has held in Gurpal Singh v. State of Punjab, AIR 2017 SC 471. Para 10 of the judgment reads thus:

"10. However, in the singular facts of the case and noticing in particular, the progression of events culminating in the tragic incident, we are inclined to reduce the sentence awarded to him. Incidentally, the occurrence is of the year 2004 and meanwhile twelve years have elapsed. Further, having regard to the root cause of the incident and the events that sequentially unfolded thereafter, we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger so much so that he was deprived of his power of self- control and being drawn in a web of action reflexes, fired at the deceased and the injured, who were within his sight. The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof. Be that as it may, on an overall consideration of the fact situation and also the time lag in between, we are of the view that the conviction of the appellant ought to be moderated to one under Sections 304 Part 1 IPC and 307 IPC. Further, considering the facts of the case in particular, according to us, it would meet the ends of justice, if the sentence for the offences is reduced to the period already undergone. We order accordingly."

(8) The Hon'ble Supreme Court has laid down in Prabhakar Vithal Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if the assault on deceased could be said to be on account of the sudden fight without premeditation, in heat of passion and upon a sudden quarrel, Conviction of the appellant cannot be sustained under S. 302 and altered to one under Section 304 Part-I of IPC. In Sikandar Ali Vs. State of Maharashtra, AIR 2017 SC 2614, the Court altered the conviction u/s 302 IPC to one u/s 304 part-2 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

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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."

(9). In view of the above discussion and verdicts of the apex court, the criminal appeal is partly allowed. We hereby confirm all the findings given by the learned Session Judge except the conviction which is hereby altered to section 304 Part II of IPC, instead of Section 302 of IPC and accordingly sentence is reduced from LIFE IMPRISONMENT to the period already undergone. The fine amount is maintained as imposed by the trial court. The appellant be set free after depositing the fine amount if he is not required to keep in jail in any other case.

Record of the trial court be sent back along with a copy of this judgment.

C.C. as per Rules.

( VIVEK RUSIA )                      (AMAR NATH (KESHARWANI))
       JUDGE                                       JUDGE

praveen