Madhya Pradesh High Court
Bhoora Ahirwar vs Police Station Mohangarh The ... on 13 May, 2022
Author: Sujoy Paul
1
Cr.A.No.159/2014
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUJOY PAUL
&
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
CRIMINAL APPEAL No. 159 of 2014
Between:-
Bhoora Ahirwar, Aged about 27 years,
S/o Shri Pukkhan Ahirwar, Occupation-Labourer
Resident of Madkhera, Police Station Mohangarh,
District Tikamgarh, M.P.
........Appellant
(By Shri R.S. Patel, Advocate)
AND
The State Of Madhya Pradesh Th. P.S.
Mohangarh, District Tikamgarh, (Madhya
Pradesh)
.........Respondent
(By Shri Yogesh Dhande, Government Advocate)
...................................................................................................................................
Reserved on : 05.05.2022
Delivered on : 13.05.2022
Signature Not
SAN
Verified ...................................................................................................................................
Digitally signed by S
HUSHMAT
HUSSAIN
Date: 2022.05.17
08:23:48 IST
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Cr.A.No.159/2014
This appeal coming on for hearing this day, Hon'ble Shri Justice Dwarka
Dhish Bansal, passed the following:
JUDGMENT
Appellant has preferred the present appeal being aggrieved by the impugned
judgment dated 07.12.2013 passed by the Sessions Judge, Tikamgarh in S.T.
No.258/2012 whereby appellant has been convicted for commission of offence
under Section 302 of the IPC and has been sentenced to undergo imprisonment for
life along with fine of Rs.1,000/- with default stipulation.
2. As per the prosecution story, at about 08.30 P.M. on 23.10.2012, a
first information report (Ex.P-20) was lodged to the effect that 8-9 days ago,
complainant/deceased Jassu sold the land of his house to Asharam of his village
whereas accused Bhoora Ahirwar intended to purchase the land, whereupon, he
was having enmity. At about 8.30 P.M., deceased Jassu was going for listening
Bhajan and on the way, accused Bhoora was lying on the bed (Charpai). As the
way was narrow, therefore, he asked the accused to give the way but he started
abusing and did not give the way to the deceased. Upon stopping by deceased
Jassu, accused Bhoora stood up and assaulted the deceased with lathi on the left
side of the head, resultantly, deceased fell down then appellant also caused Lathi
blow on thigh of the left leg and right hand. The incident was seen by Rakesh
Ahirwar (PW-1) and Ramswaroop Ahirwar (PW-3). In the meantime, son of the
deceased Kailash (PW-6) reached on the spot. The incident was reported to the
police by deceased himself whereupon the police of police station Mohangarh
registered the case under Section 302 of the IPC. After investigation, challan was
filed and the case was committed to the Court of Sessions Judge, Tikamgarh.
Cr.A.No.159/2014
3. Learned Court framed the charges under Section 302 of the IPC
against the accused/appellant, who abjured his guilt and contended that he has not
committed any offence and he has been falsely implicated in the case.
4. The prosecution examined total 17 witnesses whereas the
appellant/accused examined Nandram (DW-1) and Batibai Ahirwar (DW-2) in
defence.
5. The finding of the learned Trial Court has been assailed on the
ground that only upon a minor dispute of non giving of way, the incident took
place. There was no motive of the accused person to kill the deceased Jassu and
the appellant/accused was not having any intention to kill the deceased. The
injuries are said to have been caused by using a Bamboo lathi (Stick) and the
prosecution has failed to prove the guilt of the appellant/accused beyond
reasonable doubt. Learned counsel for the appellant submits that even if the whole
prosecution story is believed to be true then also no offence under Section 302 of
the IPC is made out and at the most offence under Section 304 Part-II of the IPC
would be made out against the appellant because the incident occurred suddenly
without any premeditation. Learned counsel for the appellant further submits that
in the aforesaid circumstances, the case of the appellant falls within the exception
4 to Section 300 of the IPC.
6. It has been submitted by learned counsel for the appellant that the
learned Court below has passed its judgment of conviction against the appellant
only upon the statements of Rakesh Ahirwar (PW-1), Ramswaroop Ahirwar (PW-
3), Kailash Ahirwar (PW-6), Dr. D.S. Bhadoriya (PW-14), Dr. V.K. Ahirwar (PW-
Cr.A.No.159/2014
16) and Chaturiya Bai (PW-17) but their testimonies are full of contradictions,
omissions and improvements but ignoring the said aspect, learned Court below
has convicted the appellant and accordingly submits that the impugned judgment
of conviction and sentence is not sustainable. He further submits that there was no
previous enmity of the accused with the deceased. Story of dispute about land has
been developed later on. The dying declaration (Ex.P/1) recorded at 22:40 on
23.10.2012 is not reliable because the person, who recorded it, has not mentioned
anything about the mental ability/fitness of the deceased. He further submits that
in such circumstances, the appellant can be convicted for commission of offence
punishable under Section 304 Part-II of the I.P.C. and contended that looking to
the period of sentence already suffered by the appellant, conviction and sentence
be modified. Learned counsel for the appellant further submits that as per the
report dated 07.10.2020, appellant has undergone actual jail sentence of near
about 10 years.
7. Learned counsel for the appellant has also placed reliance on a
judgment of the Apex Court in the case of Ankush Shivaji Gaikwad Vs. State of
Maharashtra (2013) 6 SCC 770 wherein from paragraphs-10 to 27, the Apex
Court has examined the issue as to what relevant factors should be kept in
consideration while deciding the question as to whether the case in hand falls
under Section 302 of IPC or Section 304 Part-II of IPC. Learned counsel for the
appellant further placed reliance upon the judgment in the cases of Surain Singh
Vs. State of Punjab, (2017) 5 SCC 796; Hafiz Vs. State of U.P., (2005) 12 SCC
599; Mahesh Vs. State of M.P., AIR 1996 SC 3513 and Bhagwanlal and
others Vs. State of M.P., 2017 (2) M.P.L.J. (Cri.) 457.
Cr.A.No.159/2014
8. Learned Govt Advocate appearing for the respondent/State has
argued in support of the impugned judgment and stated that the finding of
conviction and sentence of the learned Trial Court is based on legal evidence and
is in accordance with law. No interference is required in the impugned judgment,
hence, the appeal be dismissed. He placed reliance on the judgment of Hon'ble the
Apex Court in the case of Vinod Kumar Vs Amritpal @ Chhotu and others,
AIR 2022 SC 244.
9. We have heard learned counsel for the parties and perused the record.
10. It is true that the prosecution has examined 17 witnesses and the
learned trial Court has based its judgment on the evidence of Rakesh Ahirwar
(PW-1), Ram Swaroop Ahirwar (PW-3), Kailash Ahirwar (PW-6) and Chaturia
Bai (PW-17) but perusal of their testimonies do not prove that there was any
premeditation to commit murder. None of the said witnesses has said anything
about pre-existing dispute over the sale of land to Asharam, whereas Kailash (PW-
6) and Chaturia (PW-17), who are respectively son and wife of the deceased, were
supposed to know the real dispute between the two.
11. From bare perusal of impugned judgment, it is clear that the learned
Court below has not cared to consider evidence of the aforesaid four witnesses
from the angle of pre-existing dispute over the land which was required just with a
view to test the requisite ingredient about the premeditation, but the learned Court
below has failed to consider this aspect of the matter and has also not recorded
any finding regarding the premeditation. On the contrary from the testimonies of
the said witnesses as well as from the findings of the learned Court below, it is
Cr.A.No.159/2014
clear that the incident took place due to sudden quarrel for not giving the way and
certainly the act was done in heat of passion. Further, there appears only one
injury on the head of the deceased with the use of bamboo lathi, which has been
seized by seizure memo (Ex.P/7) and there are major contradictions in the
testimony of the aforesaid witnesses.
12. From the statement of aforesaid witnesses, it is established that the
incident took place suddenly in heat of passion and without any premeditation as
the accused/appellant got annoyed due to dispute arose upon asking of the
deceased to give the way as the accused was lying on the bed (charpai) on the way
and as a result of hot talks between the rival parties, accused appellant assaulted
the deceased with lathi on the left side of the head, left thigh and right hand.
13. In view of the aforesaid discussion, we come to the conclusion that
the appellant was the author of the injuries caused to the deceased but, now the
question is as to whether the appellant can be held guilty under Section 302 of
IPC.
14. The Apex Court in the case of Ankush Shivaji Gaikwad Vs. State
of Maharashtra (2013) 6 SCC 770 considered various previous decisions and
has examined the issue as to what relevant factors should be kept in consideration
while deciding the question as to whether the case in hand falls under Section 302
of IPC or Section 304 Part-I or Part-II of IPC. The relevant paragraphs are 13, 14
and 27 which are as under:-
"13. In Surinder Kumar v. Union Territory, Chandigarh (1989)
2 SCC 217, this Court held that if on a sudden quarrel a person
Cr.A.No.159/2014
in the heat of the moment picks up a weapon which is handy and
causes injuries out of which only one proves fatal, he would be
entitled to the benefit of the Exception provided he has not acted
cruelly. This Court held that the number of wounds caused
during the occurrence in such a situation was not the decisive
factor. What was important was that the occurrence had taken
place on account of a sudden and unpremeditated fight and the
offender must have acted in a fit of anger. Dealing with the
provision of Exception 4 to Section 300 this Court observed:
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.
14. We may also refer to the decision of this Court in Ghapoo
Yadav and Ors. v. State of M.P. (2003) 3 SCC 528, wherein this
Court held that in a heat of passion there must be no time for the
passions to cool down and that the parties had in that case
Cr.A.No.159/2014
before the Court worked themselves into a fury on account of the
verbal altercation in the beginning. Apart from the incident being
the result of a sudden quarrel without premeditation, the law
requires that the offender should not have taken undue
advantage or acted in a cruel or unusual manner to be able to
claim the benefit of Exception 4 to Section 300 IPC. Whether or
not the fight was sudden, was declared by the Court to be
decided in the facts and circumstances of each case. The
following passage from the decision is apposite:
10...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 IPC. 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 have 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
Cr.A.No.159/2014
acted in cruel or unusual manner. The expression 'undue
advantage' as used in the provision means 'unfair advantage'.
11....After the injuries were inflicted the injured has
fallen down, but there is no material to show that thereafter
any injury was inflicted when he was in a helpless condition.
The assaults were made at random. Even the previous
altercations were verbal and not physical. It is not the case of
the prosecution that the accused appellants had come prepared
and armed for attacking the deceased....This goes to show that
in the heat of passion upon a sudden quarrel followed by a
fight the accused persons had caused injuries on the deceased,
but had not acted in cruel or unusual manner. That being so,
Exception 4 to Section 300 IPC is clearly applicable.
27. Coming back to the case at hand, we are of the opinion that
the nature of the simple injury inflicted by the accused, the part
of the body on which it was inflicted, the weapon used to inflict
the same and the circumstances in which the injury was
inflicted do not suggest that the appellant had the intention to
kill the deceased. All that can be said is that the appellant had
the knowledge that the injury inflicted by him was likely to
cause the death of the deceased. The case would, therefore,
more appropriately fall under Section 304 Part II of the IPC.
15. Taking into consideration the aforesaid principle, Hon'ble Apex
Court in the case of Ankush Shivaji Gaikwad (supra) allowed the appeal by
converting the sentence to under Section 304 Part-II and reduced the sentence for
a period of 5 years. Similarly, in the case of Hafiz (supra), learned High Court had
Cr.A.No.159/2014
reduced the sentence of accused Hafiz to 7 years, which was upheld by Hon'ble
Apex Court. Further, in the case of Bhagwanlal (supra), the Division Bench of this
Court reduced the sentence of accused to 3 years instead of life imprisonment
under Section 302 IPC.
16. Bare perusal of the judgment cited by the learned counsel for the
State in the case of Vinod Kumar (Supra) shows that the facts of the case in hand
are quite distinguishable because in the case of Vinod Kumar (supra), the
deceased was murdered brutally certainly with premeditation.
17. In view of the aforesaid discussion and the law discussed above and
in the existing facts and circumstances, it cannot be said with all certainty that the
accused had intention to cause death of the deceased or to cause such bodily
injury, which was sufficient to cause death in ordinary course of nature. In the
circumstances, the appellant can be convicted for commission of culpable
homicide not amounting to murder under Section 304 Part-II of IPC.
18. In the result, we allow this appeal but, only to the extent that instead
of Section 302 of IPC, the appellant shall stand convicted for the offence of
culpable homicide not amounting to murder punishable under Section 304 Part-II
of IPC. Consequently, his sentence is hereby reduced to the sentence already
undergone.
19. As per the custody report dated 07.10.2020, the appellant has suffered
total sentence of 7 years 11 months and 5 days, therefore, it is clear that as on
today the appellant is in custody for near about 10 years and the ends of justice
Cr.A.No.159/2014
would be sub-served by sentencing the appellant to the period already undergone
by him in jail. Hence, he is sentenced to the period already undergone by him in
jail. Resultantly, he is directed to be released forthwith if not required to be
detained in any other case.
20. A copy of this judgment be sent immediately to the learned Trial
Court and the Jail Authorities concerned for information and necessary
compliance.
(SUJOY PAUL) (DWARKA DHISH BANSAL)
JUDGE JUDGE
sh
