Bhanwarlal And 2 Ors. vs The State Of Madhya Pradesh
2022 Latest Caselaw 6953 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 9th OF MAY, 2022

               CRIMINAL APPEAL No. 875 of 2011

  Between:-
   BHANWARLAL AND 2 ORS. S/O GIRDHARILAL, AGED ABOUT 66
1. YEARS,     GRAM.GAWLIPURA     NALKHEDA     TEH.NALKHEDA
   DISTT.SHAJAPUR (MADHYA PRADESH)
   MANGILAL S/O BHANWARLAL, AGED ABOUT 36 YEARS, GRAM
2. GAWLIPURA, NALKHEDA, TEHSIL NALKHEDA DISTRICT SHAJAPUR
   (MADHYA PRADESH)
   KISHORE S/O BHANWARLAL , AGED ABOUT 31 YEARS, GAWLIPURA,
3. NALKHEDA TEHSIL NALKHEDA DISTRICT SHAJAPUR (MADHYA
   PRADESH)
                                                   .....APPELLANT
  (BY SHRI MANOJ SAXENA, ADVOCATE.)

  AND

  THE STATE OF MADHYA PRADESH GOVT. THRU.PS.NALKHEDA
  DISTT.SHAJAPUR (MADHYA PRADESH)
                                                .....RESPONDENTS
  (BY SHRI BHASKAR AGRAWAL, GOVT. ADVOCATE. )


                        JUDGMENT

PER VIVEK RUSIA, J:-

Today, this appeal is listed on I.A. No.208/2022 repeat 4th application for suspension of sentence filed by the appellant no.1-

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Bhawarlal who is aged 78 years old and is in custody since more than 12 years. With the consent of both the parties this criminal appeal is heard finally.

The appellants have filed this criminal appeal against the judgment dated 15.07.2011 passed in Sessions Trial No.246/2010 by Additional Sessions Judge, Susner, District Shajapur (M.P.), whereby the appellant Mangilal and Kishore have been convicted under Section 302 of I.P.C. and appellant Bhanwarlal has been convicted under section 302/34 of I.P.C. and all have been sentenced to undergo Life Imprisonment with a fine of Rs.10,000/- with default stipulation.

As per prosecution story, Ashok Gavli lodged a report at police station Nalkheda at 26.7.2010 disclosing that near about 6 p.m. Pancham had informed him and Mahesh that their father is lying injured near Saraswati Mata Mandir and they both went there and saw him bleeding from his head. Upon asking he informed that due to the grazing of goat in the agricultural field of the appellants, they assaulted and warned him that next time they would kill him if found with the goat in their agricultural field. The deceased was taken to the police station and FIR was lodged and thereafter, he was sent for MLC. The MLC was conducted by P.W.-1 and reported one lacerated wound on the head thereafter, he died and the postmortem was carried. As per postmortem report conducted by P.W.-13 Prashant the death is homicidal due to the head injury. The appellant who are father and two sons were arrested and investigation was completed and the trial was committed to the sessions court. They denied the charges and pleaded for false implications. The prosecution has examined 14 witnesses and in defence the appellants examined three witnesses. After evaluating the

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evidence came on record. The learned Judge, has convicted all the appellants under section 302 and section 302/34 of the IPC and sentenced to undergo Life imprisonment.

Learned counsel for the appellants submits that there is no eye witness in this case. As per the complainant, the deceased only told him that these appellants have assaulted him. He has not disclosed about the weapon used by these appellants. As per autopsy report and the doctor opinion only one lacerated wound (linear fracture) was found on the skull and that too by a single blow. If the prosecution story taken as it is, the dispute arose because deceased was grazing the goat in the agricultural field of the appellants therefore, it is not the case of common intention but due to sudden provocation one blow was given to the head therefore, the offence would not travel more than section 304 (Part-II) of the IPC and that too against appellant no.1 who assaulted by means of stick. There is no correspondence injury and there is no over act by other two appellants. Out three appellants two are in jail since last 12 years and one appellant is on bail. Under such premises learned counsel submits that out of three appellants appellant- Bhawarlal is liable to be convicted under section 304(Part-II) of the IPC and remaining two appellants are liable to be convicted under section 323 of the IPC because other injuries are minor in nature for which they have already undergone the jail sentence.

Shri Bhaskar Agrawal, learned Govt. Advocate for the respondent/State opposes the prayer by submitting that after examining each and every evidence came on record the learned Session Judge has passed detailed order and convicted the appellants. Hence, no interference is called for. However, he submits that out of three appellant two have undergone more than 12 years of jail sentence and one is of 78 years of age.

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We have heard the learned counsel for the parties and perused the record and examined the evidence.

The entire prosecution case is based upon the information given to the police by complainant P.W.-2 and his brother P.W.-5 that deceased father informed them about the assault by these appellants. In FIR it has been disclosed that these appellants have assaulted the deceased but who has actually used the stick and caused the fatal injury in the FIR is silent. There is a recovery of stick from Bhawaral and Mangilal and Axe from Kishore. There is no correspondence injury from the Axe. The blood was found on all the three weapon but the quantity was in sufficient. At the most out of three appellants one has caused the injury by means of the stick on the head and the remaining two appellants have assaulted the deceased.

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. 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

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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

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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."

It is not the case of the prosecution that these appellants were already their in the agricultural field with pre-planning and pre-meditation to assault the deceased. Dispute suddenly arose when deceased's goat entered into the appellants' agricultural field. Therefore, it is a case of culpable homicide not amounting to murder and it will fall under Exception-IV of Section 300 of the IPC for which only appellant no.1 and 2 are liable to be convicted under section 304 (Part-II) of the IPC. So far as appellant No.3 is concerned, axe was recovered but there is no injury found on the body of deceased by the axe, hence, conviction and sentence of appellant No.3 is set aside.

As discussed above, there was no common intention between the parties to commit murder of deceased appellant No.1 and 2 wrongly been convicted under section 302 and section 302/34 of the IPC. Hence, their conviction is set aside.

Bail bond of appellant no.3 Kishore who is on bail is cancelled and

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discharged.

The jail sentence of appellant no.1 and 2 are hereby reduced to the period already undergone by them. Hence, they be released if not required in any other case.

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

          (VIVEK RUSIA)                               (AMAR NATH KESHARWANI)
              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,



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              Date: 2022.05.11 19:46:25 +05'30'