Raju vs The State Of Madhya Pradesh
2022 Latest Caselaw 14047 MP

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                                                             CRA No. 624/2011



          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 1st OF NOVEMBER, 2022

                CRIMINAL APPEAL No. 624 of 2011

 BETWEEN:-
 RAJU S/O PUNIYA @ POONAMCHAND KORKU, AGED ABOUT 28
 YEARS,        OCCUPATION:        LABOUR        GRAM
 RATANKHEDI,PS.UDAYNAGAR,DISTT.DEWAS (MADHYA PRADESH)
                                                          .....APPELLANT
 (SMT.ANITA JAIN, LEARNED COUNSEL FOR THE APPELLANT
 THROUGH LEGAL AID)

 AND
 THE STATE OF MADHYA PRADESH GOVT. THROUGH POLICE
 STATION HATPIPLYA,DISTT.DEWAS (MADHYA PRADESH)
                                                    .....RESPONDENTS
 (SHRI BHASKAR AGRAWAL, LEARNED GOVT. ADVOCATE FOR
 RESPONDENT/STATE)


This appeal coming on for hearing this day, JUSTICE VIVEK
RUSIA passed the following:
      Today, this appeal is listed for hearing on an application (I.A.
No.8999/2022) for suspension of jail sentence of the appellant, but the
learned counsel for the appellant submits that this appeal itself be
disposed of by altering the conviction from Section 302 to Section 304
Part I of the IPC. Hence, this appeal is heard finally.
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                                                          CRA No. 624/2011




                             JUDGMENT

(Delivered on 12th October, 2022) This is an appeal against the judgment dated 28.2.2011 passed by learned Additional Sessions Judge, Bagli, District Dewas in S.T. No.35/2010 whereby the appellant has been convicted u/s. 302 of the IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- with default stipulation.

The facts of the case, in brief, are as under :

1. On 5.12.2009 near about at 4 pm. complainant - Banarsi Bai, her sister, her children were going along with present appellant. When they reached near Warehouse, the present appellant suddenly started abusing his wife and when she resisted, he took out the knife from his pocket and caused the stab injuries to her three times. Due to the said injuries the deceased died on the spot. Accordingly, the FIR was registered. Investigation was completed. As per autopsy report given by Dr. Atul Kumar Bidway (P.W.12) the deceased died due to the excessive bleeding because of the stab injuries. The appellant took the plea of false implication. On the basis of testimony of eye-witnesses the appellant has been convicted and sentenced, as stated first.

2. Learned counsel for the appellant submits that she is not assailing the findings recorded by the learned Sessions Judge in respect of date of incident, cause of death and complicity of the appellant. She submits that as per prosecution story and the statements of the eye-witnesses the dispute suddenly arose between the husband and wife, out of anger the appellant stabbed the deceased. It is not a pre-planned murder, therefore, the offence will not travel more than

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CRA No. 624/2011

Section 304 Part I of the IPC and for which, the appellant has already suffered more than 13 years incarceration. The appellant has three children and there is no member in the family to look after them. The appellant is not a habitual offender. She, therefore, prayed that this appeal be allowed and the conviction u/s. 302 of the IPC be converted into Section 304 Part I of the IPC and the sentenced be reduced accordingly.

3. On the other hand, learned Govt. Advocate opposes the prayer and argued in support of the impugned judgment.

Having heard the learned counsel for the parties, we have perused the record of the court below.

4. Looking to the overall circumstances of the case and that the dispute suddenly arose and the appellant out of an anger stabbed the deceased and also that the appellant is not a habitual offender, we are considered opinion that this appeal deserves to be partly allowed and the conviction u/s. 302 of the IPC deserves to be altered into Section 304 Part I of the IPC.

5. In the case of Ongole Ravikanth V/s. State of A.P. : AIR 2009 SC 2129 where the husband poured the kerosene on the wife and set her on fire, found that the incident took place all of a sudden without any pre-intention then the act of the accused is found to be punishable u/s. 304 Part I of the IPC and affirmed the judgment of conviction and sentence passed by the High Court. The aforesaid judgment has been relieved upon by the co-ordinate Bench of this Court in the case of Bherusingh V/s. State of M.P. (Cr. Appeal No.539/2005 decided on 13.3.2012). Para 22, 23, 24 and 25 of the said judgment are reproduced below :

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CRA No. 624/2011

"22. On bare perusal of the dying declaration, we find that specifically the deceased is saying that the appellant wanted to perform second marriage and, therefore, he caused burn injury to her. As per Ex.D/5 dying declaration of the deceased, which was recorded on 17.6.04, by the Head Constable, she had deposed that in the night there was some quarrel with her husband and, thereafter, at 4.30 in the morning he sprinkled kerosene and lit the fire and then short circuited the electric wire. She also stated that she was at her in-law's place for a period of 1½ months. PW6, Gendkunwar, mother of the deceased, in paragraph 6 of her statement (Ex.D/3), very categorically admitted that during life time her daughter never lodged any complaint against her husband and in-laws. She also admitted that this fact was narrated by her to the police at the time of recording of her 161 statement (Ex.D/3).

23. From the above evidence, we are of the view that there was no enmity between the parties and the incident had occurred all of a sudden in a heat of passion, the act of the appellant would come within the purview of exception 4 to Section 300 of the IPC and if that would be the position, according to us the appellant has committed an offence under Section 304 Part-I of the IPC. In the case in hand, the incident occurred due to some quarrel between appellant-accused (husband) and deceased (wife).

24. The Apex Court in the case of Ongole Ravikanth v/s State of A.P. (AIR 2009 SC 2129) in the similar circumstances where the husband poured kerosene on the wife and set her on fire "found that incident taken place all of a sudden without any preintention then the act of the accused is found to be punishable under Section 304 Part-I of IPC and affirmed the judgment of conviction and sentence passed by the High Court".

25. The law laid down by the Apex Court in the case of Ongole Ravikanth (supra) will be fully applicable to the factual scenario of the present case also. Thus, the appellant-accused can be convicted for the offence punishable under Section 304 Part-I of the IPC and not under Section 302 of the IPC."

6. In view of the foregoing discussion, this appeal is partly allowed. The conviction of the appellant u/s. 302 of the IPC is set aside and he is convicted for an offence punishable u/s. 304 Part I of the IPC and sentenced to undergo the period already undergone as he has suffered the incarceration of more than 13 years. The appellant be released forthwith subject to payment of the fine amount and if not

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CRA No. 624/2011

required in any other cause. Record of the court below along with a copy of this order be sent forthwith for information and compliance.

         [ VIVEK RUSIA ]          [AMAR NATH (KESHARWANI)]
             JUDGE.                       JUDGE.
Alok/-

Digitally signed by ALOK GARGAV
Date: 2022.11.02 10:13:45 +05'30'