Madhya Pradesh High Court
Suresh vs The State Of Madhya Pradesh on 15 November, 2022
Author: Vivek Rusia
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CRA No. 641/2016
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 15th OF NOVEMBER, 2022
CRIMINAL APPEAL No. 641 of 2016
BETWEEN:-
SURESH S/O BHANGI BARELA, AGED ABOUT 24 YEARS,
OCCUPATION: LABOURER VILLAGE THENCHA, TEHSIL PATI,
DISTRICT BARWANI (MADHYA PRADESH)
.....APPELLANT
(SMT. SHARMILA SHARMA, LEARNED COUNSEL FOR THE
APPELLANT.)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THROUGH P.S. SILAWAD, DISTRICT BARWANI (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI KAMAL KUMAR TIWARI, 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.11830/2022) 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. 641/2016
JUDGMENT
This is an appeal against the judgment dated 22.1.2016 passed
by learned Sessions Judge, Barwani in S.T. No.05/2015 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.1500/- with default
stipulation.
The facts of the case, in brief, are as under :
1. On 19.12.2014 near about at 8.00 pm. the deceased Mansharam
gave slap to the present appellant due to which he became annoyed
and took out a brick and thrown on Mansharam due to which
Mansharam sustained injury near eyebrow and became unconscious.
He was taken to the hospital where he was declared as dead.
Accordingly, FIR was registered for the offence u/s. 294, 506, 307 and
302 of the IPC against the appellant and he was arrested. After
completing the investigation, the prosecution filed the charge-sheet.
Learned Sessions Judge vide order dated 16.1.2015 framed the
charges u/s. 294, 506 and 302 of the IPC against the appellant which
he denied and pleaded for trial. To prove the charges, the prosecution
examined 11 witnesses and got exhibited 21 documents. In defence,
appellant did not examine any witness but got exhibited one document
as Exh. D/1. After examining the evidence came on record, learned
Sessions Judge has convicted and sentenced the appellant, 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
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CRA No. 641/2016
appellant. She submits that as per prosecution story and the statements
of the eye-witnesses the dispute suddenly arose between the appellant
and the deceased, out of anger the appellant took out a brick and
thrown the same on the deceased. It is not a pre-planned murder,
therefore, the offence will not travel more than Section 304 Part I of
the IPC. The appellant is not a habitual offender. Looking to the
evidence came on record, learned counsel for the appellant submits
that the appellant has wrongly been convicted u/s. 302 of the IPC. The
offence will not travel more than Section 304 Part I of the IPC. 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 the appellant
took out a brick and thrown it on the deceased due to which he
sustained the head injury and died. As per autopsy report and
statement of Amichand Chouhan (P.W.6) the deceased died due to
head injury with severe hemorrhagic shock within 24 hours of
postmortem. Apart from the aforesaid injury, no other injury was
found on the body of the deceased. The prosecution examined Ranja
(P.W.1) and Munnibai (P.W.2) who were present on the spot and
according to them, they all were sitting in the courtyard and suddenly
the dispute arose and out of an anger the appellant thrown the brick
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CRA No. 641/2016
towards the deceased. The appellant is an habitual offender. In view of
the above, 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 :
"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
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CRA No. 641/2016
(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 10 (Ten) years and to pay a fine of
Rs.500/- as imposed by the learned Sessions Judge. The appellant be
released after completing 10 (Ten) years' jail sentence subject to
payment of the fine amount and if not required in any other cause.
Record of the court below along with a copy of this order be sent for
information and compliance.
[ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.11.16 11:16:11 +05'30'
