Madhya Pradesh High Court
Gudda @ Ramsajivan vs The State Of M.P. on 14 October, 2022
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 14th OF OCTOBER, 2022
CRIMINAL APPEAL No. 2486 of 1998
BETWEEN:-
GUDDA @ RAMSAJIVAN, AGED ABOUT 22
YEARS, S/O CHATURBHUJ SONI, RESIDENT OF
VILLAGE KACHRI, POLICE STATION
NARYABALI, DISTRICT SAGAR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI ADITYA SINGH RAJPUT - ADVOCATE)
AND
THE STATE OF M.P. (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI LALIT JOGLEKAR - GOVERNMENT ADVOCATE)
This appeal is listed for delivery of judgment this day, the court passed
the following:
JUDGMENT
The instant appeal under Section 374(2) of Criminal Procedure Code has been
filed by the appellant/accused being aggrieved by the judgment and finding
dated 11.09.1998 passed by the learned III Additional Sessions Judge, Sagar in
Session Trial No.432/1997 whereby the appellant/accused has been convicted
under Sections 304 Part I of Indian Penal Code (hereinafter referred as
‘IPC’) and sentenced to undergo R.I. for 7 years with fine of
Rs.1000/-, in default 6 months R.I.
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2. The prosecution story in the nutshell is that on 22.08.1997, at about
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12 in the noon, deceased-Mannu was engaged in some farming work, at that
time, the appellant/accused was grazing his bull. Dispute arose when appellant
released his bull into the farm of Karodi and when deceased tried to stop him
on which the appellant started abusing him and inflicted an axe blow on his neck
due to which deceased fell down. Rambabu, Tijai and Bhalu were present on
the spot. Bhalu went to village and informed uncle Kanchedilal. Kanchedilal
reached the spot and found the deceased in unconscious state. They brought
the deceased to the village and then took him to Naryawali Police Station. On
their way to Hospital, the deceased died. Initially, the police registered the FIR
of Exb. P/8 for the offences under section 294 and 307 of IPC but on account
of death of deceased, offences under sections 506 B and 302 of IPC were
enhanced subsequently.
3. After completing the investigation, the police filed the charge-sheet.
The appellant/accused abjured his guilt and claimed to be tried, therefore, the
trial Court proceeded further and recorded the statements of as many as 23
prosecution witnesses as well as statement of appellant/accused under Section
313 of the Cr.P.C.
4. After evaluating the entire evidence adduced by the parties, the trial
Court found the appellant/accused guilty for the offence punishable under
Sections 304 part I of IPC instead of section 302 of IPC and sentenced him, as
mentioned above.
5. Learned counsel for the appellant submitted that the judgment
passed by the learned trial Court is bad in law and deserves to be set aside.
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The learned trial Court did not appreciate the evidence in proper perspective. In
fact, the deceased was aggressor and having sharp edged weapon i.e. katarna.
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He caused several injuries to the appellant, even on vital part of his body i.e.
head. When the appellant tried to snatch the weapon from the deceased, the
incident had taken place. The learned trial Court erred in holding that the
appellant is guilty for causing death of deceased. A counter case bearing crime
no. 178/97 for the offence punishable under Section 323, 324, 294, and 506-B
was also registered by the police against the deceased. It can be easily seen
from the record that the appellant received five blows whereas the deceased
received only one. It is a case of private defence but the trial court wrongly held
that the appellant exceeded the right thereof. It is submitted by the counsel that
during scuffle, the appellant is in imminent and reasonable danger of losing his
life or limb, and thus he exercised his right of private defence. Injuries caused to
the appellant itself show that that the appellant was on the verge of losing his
life, had he not used force upon the deceased. In said context, learned counsel
for the appellant relied upon the judgment passed by Hon’ble Apex
Court in the case of Darshan Singh Vs. State of Punjab and another
reported in (2010) 2 SCC 333 as well as passed by High Court of Delhi in the
case of Madan Singh Bishta Vs UOI & Ors. reported in 2014 SCC OnLine
Del 1083.
6. Further, he has also drawn attention of this Court towards the
statement of prosecution witness namely Kanchedi Lal (PW-5), Bhalu @
Munna Lal (PW-6), Tijai (PW-7), Rambabu (PW-8), Dr. Shyam Manohar (PW-
11) and Dharmesh Dixit (PW-18), pointing out the discrepancies thereof. He
submitted that complainant-Kanchedi Lal (PW-5) deposed that on the
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SAN information received from Bhalu (PW-6), he lodged the F.I.R. whereas Bhalu
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(PW-6) stated that he had never informed Kanchedi Lal. Bhalu (PW-6), Tijai
(PW-7) and Rambabu (PW-8) are the eye witness of the case but they have
turned hostile. As per prosecution, the deceased was assaulted with axe
whereas no blood stain was found on the said weapon. With the aforesaid, he
submitted that the appellant is entitled to be acquitted and appeal deserves to
be allowed.
7. On the other hand, learned P.L. for the respondent-State opposed
the submissions of appellant’s counsel by submitting that the offence
committed by the appellant/accused is heinous in nature. There is sufficient
evidence available to hold the appellant guilty. The trial Court has rightly
convicted him. The appellant himself has not denied the incident, however, he is
taking shelter of private defence, which cannot be given to him as he exceeded
his right. The appellant assaulted on vital part of deceased intentionally and it is
settled principle of law that intention can be drawn on the spot itself there is no
need of premeditation for that. Therefore, the judgment passed by the trial
Court does not warrant any interference.
7. Heard learned counsel for the parties and perused the record.
8. On perusal of record of the trial Court as well as appeal memo, it is
evident that the appellant himself did not deny the incident and the admitted
position is that the incident occurred between the appellant and deceased
wherein the appellant had also sustained injuries. The appellant took the plea of
private defence which has been discarded by the learned trial judge on the
ground of exceeding force used by the appellant. Now, the first question which
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has to be decided by this Court in the appeal is whether the learned trial judge
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has rightly held that the appellant has exceeded his right of private defence or
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not ?
9. In the said context, in the case of Yogendra Morarji v. State of
Gujarat, (1980) 2 SCC 218, the Hon’ble Apex Court laid down
some principles. The relevant para is quoted herein under -
“13. The Code excepts from the operation of its penal
clauses “large classes of acts done in good faith for the
purpose of repelling unlawful aggression but this right has been
regulated and circumscribed by several principles and
limitationsâ€Â. The most salient of them concerning the
defence of body are as under: firstly, there is no right of private
defence against an act which is not in itself an offence under the
Code; secondly, the right commences as soon as â€Â" and not
before â€Â" a reasonable apprehension of danger to the body
arises from an attempt or threat to commit some offence although
the offence may not have been committed and it is coterminous
with the duration of such apprehension (Section 102). That is to
say, the right avails only against a danger imminent, present and
real; thirdly, it is a defensive and not a punitive or retributive right.
Consequently, in no case the right extends to the inflicting of more
harm than it is necessary to inflict for the purpose of the defence
(Section 99). In other words, the injury which is inflicted by the
person exercising the right should be commensurate with the injury
with which he is threatened. At the same time, it is difficult to
expect from a person exercising this right in good faith, to weigh
“with golden scales†what maximum amount of
force is necessary to keep within the right. Every reasonable
allowance should be made for the bona fide defender “if
he with the instinct of self-preservation strong upon him, pursues
his defence a little further than may be strictly necessary in the
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circumstances to avert the attackâ€Â. It would be wholly
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unrealistic to expect of a person under assault, to modulate his
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extends to the killing of the actual or potential assailant when there
is a reasonable and imminent apprehension of the atrocious crimes
enumerated in the six clauses of Section 100. For our purpose,
only the first two clauses of Section 100 are relevant. The
combined effect of these two clauses is that taking the life of the
assailant would be justified on the plea of private defence; if the
assault causes reasonable apprehension of death or grievous hurt
to the person exercising the right. In other words, a person who is
in imminent and reasonable danger of losing his life or limb may in
the exercise of right of self-defence inflict any harm, even
extending to death on his assailant either when the assault is
attempted or directly threatened. This principle is also subject to
the preceding rule that the harm or death inflicted to avert the
danger is not substantially disproportionate to and incommensurate
with the quality and character of the perilous act or threat intended
to be repelled; fifthly, there must be no safe or reasonable mode of
escape by retreat, for the person confronted with an impending
peril to life or of grave bodily harm, except by inflicting death on
the assailant; sixthly, the right being, in essence, a defensive right,
does not accrue and avail where there is “time to have
recourse to the protection of the public authorities†(Section
99).â€Â
10. On careful reading of the statements of prosecution
witnesses it is manifest that a scuffle took place between the appellant
and deceased and both have exchanged blows. The deceased was having
weapon i.e. katarna and he assaulted the appellant with that weapon,
resultantly, the appellant had fallen down but after some time the appellant
pounced on the deceased and assaulted him with katarna which resulted
into his death. In the light of above quoted principle, it can be said that
the appellant exceeded his right of private defence as he had opportunity
to escape by retreating himself on sensing danger by the act of deceased.
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SAN
The incident occurred in the open farm, therefore, it cannot be said that
the appellant had no safe or reasonable mode of escape by retreat. The
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appellant used disproportionate and incommensurate force in anger.
Therefore, the trial Court has rightly came to the conclusion that the
appellant has caused culpable homicidal death of deceased by exceeding
his right of private defence.
11. Now the next question which arises before this Court is
“whether the learned trial judge has rightly convicted and sentenced the
appellant under section 304 part I of IPC ?â€Â
12. Here, it would be appropriate to quote the relevant provision i.e.
section 304 of IPC:-
“304. Punishment for culpable homicide not amounting to
murder â€Â" Whoever commits culpable homicide not
amounting to murder shall be punished with 1[imprisonment for
life], or imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act by
which the death is caused is done with the intention of causing
death, or of causing such bodily injury as is likely to cause death,
or with imprisonment of either description for a term which may
extend to ten years, or with fine, or with both, if the act is done
with the knowledge that it is likely to cause death, but without any
intention to cause death, or to cause such bodily injury as is likely
to cause death.â€Â
13. After careful reading of the above said provisions, it becomes necessary
that following ingredients must be satisfied before invoking the Section 304 of
IPC :-
(I) The death of the person must have been caused.
(II) Such death must have been caused by the act of the accused by
causing bodily injury.
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(III) There must be an intention on the part of the accused to cause the
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death or to cause such bodily injury which is likely to cause death
(IV) There must be knowledge on the part of the accused that the
bodily injury is such that it is likely to cause death.
14. The first part of the section is generally referred to as
“Section 304, Part Iâ€Â, whereas the second part as
“Section 304, Part IIâ€Â. The first part applies where the accused
causes bodily injury to the victim with intention to cause death; or with intention
to cause such bodily injury as is likely to cause death whereas Part II of the said
section, comes into effect when death is caused by doing an act with
knowledge that it is likely to cause death, but without any intention to cause
death or to cause such bodily injury as is likely to cause death.
15. From close reading of the related provisions, it is found that the
essential ingredients for an offence under Section 304 of IPC are guilty mind,
intention and overt act on the part of the accused.
16. Now coming back to the present case, as already found by the
Court that the deceased and appellant had not anticipated the scuffle, which had
taken place suddenly upon their chance meeting. The quarrel took place
suddenly on the issue of grazing cattle. Grappling took place between them.
Appellant had no particular motive to kill the deceased. The injury caused to
deceased undoubtedly is sufficient in the ordinary course of nature to cause
death. But, in the above circumstances, it cannot be certainly said that that the
appellant intended to inflict the particular injury, however, the severity of attack
shows that the appellant had knowledge that the deceased may die due to the
said blow. In the absence of intention and pre-motive, it would be justifiable to
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convict the appellant for the offence punishable under section 304 part II of
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I.P.C instead of Section 304 part I of IPC.
17. As far as sentence is concerned, there is no minimum punishment
prescribed for the offence punishable under section 304 part II of IPC. The
appeal is of year 1998. More than two decades have elapsed. The appellant has
suffered about 1 year and 3 months of jail sentence without remission during
trial and pendency of the appeal. The sentence so far already undergone, in my
opinion, would be sufficient to meet the ends of justice, however, it would be
more appropriate to enhance the fine amount from Rs. 1000/- to 25000/- which
shall be payable to the legal representatives of the deceased.
18. In view of the aforesaid, the conviction of the appellant is altered
from section 304 part I of IPC to 304 part II of IPC and the appellant is
sentenced to the sentence already undergone by him alongwith fine of Rs.
25000/- payable to the legal representative of the deceased. On default of
payment of fine, the appellant shall suffer 3 months R.I.
19. The appeal is stands partly allowed.
(S. A. DHARMADHIKARI)
JUDGE
HS
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SAN
Digitally signed by HEMANT SARAF
Date: 2022.10.14 19:13:34 IST
