Kamal vs The State Of Madhya Pradesh
2022 Latest Caselaw 14978 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 16th of NOVEMBER, 2022

                   CRIMINAL APPEAL No.1327/2014

BETWEEN:-
KAMAL S/O NANURAM BHILALA, AGED ABOUT 25 YEARS,
OCCUPATION: LABOUR, R/O- DABARIPURA MOHALLA,
PANKUWA, P.S. UDAYNAGAR DISTRICT DEWAS(MADHYA
PRADESH)

                                                  .....APPELLANT
(MS. INDU RAJGURU, ADVOCATE, )
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THRU.
P.S. UDAY NAGAR, DISTRICT DEWAS,(MADHYA PRADESH)

                                                 .....RESPONDENT

(SHRI K.K.TIWARI, GOVT.ADVOCATE)

      This appeal coming on for orders this day, JUSTICE VIVEK
RUSIA passed the following:
                               JUDGEMENT

Today this appeal is listed on consideration of application (I.A.12746/2022) for suspension of the jail sentence of the appellant - Kamal. Instead of hearing on the aforesaid application, we deem it proper to hear this appeal finally.

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Heard the learned counsel for the parties finally. This appeal is filed against the judgment dated 26.08.2014 passed by First Additional Sessions Judge, Dewas in S.T. No.364/2012 whereby, the sole 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.

(2) As per the prosecution story, on 13.08.2012, Bheru Singh (PW-2) called guests to attend the ceremony in the house, near about 9.30 complainant Suresh (PW-1) and Raju (PW-6) were talking to each other at that time appellant Kamal S/o Nanuram came in a drunken condition and started searching his slippers, since he could not find the same, he started abusing Suresh (PW-1) and slapped him two to three times. Raju (PW-6) intervened, and they were separated. When Mohan Singh (deceased) son of the complainant Suresh (PW-1) was going to take bath, suddenly this appellant came and stabbed the upper side of the back of Mohan Singh(the deceased) and succumbed. FIR (Ex-P/1) was lodged by the father of the deceased. the death was found to be homicidal. The appellant was arrested.

(3) Upon completion of the investigation, a charge-sheet was filed for the offence punishable under Section 302 of the IPC and 294 of the IPC before the competent court from where it was committed to the Court of Sessions. The Trial Court has framed the charge u/s. 302, 294 of the IPC and 25(1-B) (B) of the Arms Act against the appellant which the appellant denied and pleaded for trial.

(4) Prosecution has examined as many as 7 witnesses. In defence, the appellant did not examine any witnesses and pleaded false implication on the basis of suspicion. After evaluating the evidence that came on record,

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learned Sessions Judge has convicted and sentenced the appellant, as stated above.

(5) Learned counsel for the appellant submits that the appellant is in jail since last more than 10 years. He has no criminal past. The dispute had suddenly occurred on a petty issue as there was no previous enmity between the appellant and the deceased. It is a case of causing a single stab injury without any intention to kill. Therefore at the most, the offence will not be more than an offence u/s. 304 Part I of the IPC and for which he has already undergone a sufficient period of the jail sentence. Therefore without assailing the judgment on merits, she is praying for alteration of conviction from Section 302 to 304 Part-I I.P.C. Learned counsel, prays that this appeal be partly allowed and the sentence be reduced to the period already undergone.

(6) On the other hand, learned Govt. Advocate appearing for the respondent/State opposes the prayer by submitting that the trial Court has already considered in paragraphs 39 and 40 of the impugned judgment the nature of the offence, and cause of death, rightly held that it is a case of murder and the appellant has rightly been convicted under section 302 I.P.C and 25(1-B) (B) of the Arms Act.

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

(7) So far the deposition of the father of deceased Suresh (PW-1) is concerned that the appellant Kamal had slapped him three times and thereafter they were separated. After some time the appellant came and stabbed his son Mohan Singh (deceased) in the back. The function was going on and everyone was in an intoxicated condition. In paragraph 7 the cross examination he also admitted that there was no previous enmity

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between appellant Kamal and Mohansingh (deceased). As per the FSL report (EX.P/16), no human blood was found on the knife. The appellant took a defence that while dancing in the marriage ceremony the deceased fell on a sharp object and sustained the injuries. (8) The only issue which requires consideration is whether the appellant is liable to be convicted under section 302 or Section 304 Part II of I.P.C (9) There was no previous enmity between the appellant and the deceased. It is a case of sudden provocation without premeditation of mind. Therefore, we are of the considered opinion that it is a fit case for alteration of the conviction of the appellant from 302 of the IPC to Section 304 Part I of the IPC. We are getting the support of our above view from the following verdict of the Apex court.

(10) The Hon'ble Supreme Court has held in Gurpal Singh v. State of Punjab, AIR 2017 SC 471. Para 10 of the judgement 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."

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(11) The Hon'ble Supreme Court held in Arjun and Anr. Vs. 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 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'."

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(12) 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 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."

(13) The Hon'ble Apex Court laid down in Madhavan and Ors. Vs. State of Tamil Nadu, AIR 2017 SC 3847 that:

"8. Notably, the High Court has not considered the issue of quantum of sentence at all, but mechanically proceeded to affirm the sentence awarded by the Trial Court. From the factual position, which has emerged from the record, it is noticed that there was a preexisting property dispute between the two families. The incident in question happened all of a sudden without any premeditation after PW1 questioned the appellants

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about their behaviour. It was a free fight between the two family members. Both sides suffered injuries during the altercation. The fatal injury caused to Periyasamy was by the use of thadi (wooden log) which was easily available on the spot. The appellants, on their own, immediately reported the matter to the local police alleging that the complainant party was the aggressor. No antecedent or involvement in any other criminal case has been reported against the appellants. Taking oral view of the matter, therefore, we find force in the argument of the appellants that the quantum of sentence is excessive.

(14) In view of the above evaluation of the facts and circumstances of the case and verdicts of the apex court, the criminal appeal is partly allowed. So far as the complicity of the appellant is concerned, the same is maintained but the conviction is altered from section 302 of IPC to section 304 Part I of IPC, and accordingly, the sentence is reduced from LIFE IMPRISONMENT to the period already undergone. So far as conviction of the appellant under Section 25(1-B) (B) of Arms Act is concerned the same is hereby maintained. While maintaining the fine amount the jail sentence is reduced for the period already undergone. The fine amount imposed by the trial court is maintained. The appellant be released from jail forthwith after depositing the fine amount, if not deposited, and if he is not required in any other cause. (15) This criminal appeal is partly allowed. Record of the trial court be sent back along with a copy of this order.

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

das
          Digitally signed by
          REENA PARTHO SARKAR
          Date: 2022.11.18
          10:18:51 +05'30'