Madhya Pradesh High Court
Thansingh vs The State Of Madhya Pradesh on 17 October, 2022
Author: Subodh Abhyankar
CRA No.964/2014
1
In the High Court of Madhya Pradesh
At Indore
Criminal Appeal No.964/2014
Indore, Dated 17.10.2022
Shri Vivek Singh, learned counsel for the appellant.
Shri Bhaskar Agrawal, learned Government Advocate for the
respondent / State of Madhya Pradesh.
Heard finally with the consent of the learned counsel for the
parties.
Judgment passed in the open Court; later on, typed separately,
signed and dated.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
rcp
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
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CRA No.964/2014
2
In the High Court of Madhya Pradesh
At Indore
D.B.: Hon'ble Shri Justice Subodh Abhyankar &
Hon'ble Shri Justice Satyendra Kumar Singh
ON THE 17TH OF OCTOBER, 2022
Criminal Appeal No.964/2014
Between: -
Than Singh S/o Har Singh, (in jail)
Age- 46 years, Occupation- Agriculturist,
Gurlibai W/o Than Singh, (not in jail)
Age- 42 years, Occupation- Agriculturist,
Both R/o Soliya (Padava Faliya),
Police Station Nanpur, District Alirajpur (MP)
.....APPELLANTS
(By Shri Vivek Singh, Advocate)
AND
The State of Madhya Pradesh
Through Police Station Nanpur,
District Alirajpur (MP)
.....RESPONDENT
(By Shri Bhaskar Agrawal, Government Advocate)
............................................................................................................................
This CRIMINAL APPEAL coming on for hearing / judgment
this day, Hon'ble Shri Justice Subodh Abhyankar, passed the
following:
JUDGMENT
This appeal under Section 374 (2) of the Code of
Criminal Procedure, 1973 (herein after referred to as the Code) has
been preferred by the appellants being aggrieved of the impugned
judgment dated 06.06.2014, passed by the learned 2nd Additional
Sessions Judge Alirajpur, District Alirajpur (MP) in Sessions Trial
No.113/2013, whereby the learned Judge of the trail Court while
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CHANDRA PITHWE
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CRA No.964/2014
finding appellant No.1 Than Singh guilty under Section 302 of
Indian Penal Code, 1908 (IPC), appellant No.2 Gurlibai guilty
under Section 323 of IPC has convicted and sentenced them, as
mentioned herein below: -
Accused Conviction Sentence Fine Amount Sentence in default
of payment of fine
Than Singh s/o 302 of IPC Rigorous Rs.2,000/- 4 months RI
Har Singh Imprisonment for
Life
Gurlibai w/o 323 of IPC Rigorous Rs.1,000/- 1 month RI
Than Singh Imprisonment for
six months
2. In brief, the facts of the case are that on 07.04.2013,
around 07:00 O'clock in the evening, when complainant Val
Singh's (now the deceased), wife Sayaribai and her daughter Ajama
had brought their bullocks to hand-pump to drink water, at that
time, the bullocks went into the field of the appellant Than Singh,
which gave a rise to a dispute between the parties; and a quarrel
took place on the spot only. Appellant No.1 Than Singh S/o Har
Singh, Appellant No.2 Gurlibai W/o Than Singh and their son
Surmal S/o Than Singh also abused the complainant party and
asked them to keep their bullocks in place; and also pelted stones on
them. A stone also hit the complainant's (Kailash) on his head and
he started bleeding, whereas Sayaribai was assaulted by appellant
No.2 Gurlibai by stone and suffered simple injuries. Ex.P/17, the
First Information Report (FIR) in the present case was lodged by
deceased Val Singh himself while he was alive; and he has narrated
the aforesaid story in the FIR.
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CHANDRA PITHWE
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3. After the charge sheet was filed, the case was
committed and the learned Judge of the trial Court, after recording
the evidence, convicted the appellants as aforesaid vide its
judgment dated 06.06.2014.
4. Learned counsel for the appellants has not disputed the
factum of the incident and has submitted that even if it is admitted
that appellant No.1 Than Singh had caused injury to the deceased,
looking to the nature of the injuries as also the cause of the dispute
between the parties, it would not be a case falling under Section 302
of IPC, and instead, under Section 304 Part-II of IPC, and
considering the fact that appellant No.1 Than Singh is lodged in jail
since 09.04.2013, and as such, he has already completed nine years
and six months in custody, his sentence may be reduced to the
sentence already undergone by him.
5. It is further submitted that so far as appellant No.2
Gurlibai is concerned, she has been convicted under Section 323 of
IPC only and out of six months rigorous imprisonment awarded to
her, she has already spent two months and sixteen days in jail and
thus, it is submitted that appellant No.2 being a woman and has
already suffered the ordeal of the trial and also the pendency of this
appeal since last nine years, she be also released on the period
already undergone by her.
6. Learned counsel for the respondent / State, on the other
hand, has opposed the prayer and it is submitted that no case for
interference is made out, as complainant Val Singh (the deceased)
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CHANDRA PITHWE
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had suffered two fractures on his head, both caused by appellant
No.1 Than Singh and as such, no interference is called for.
7. Heard learned counsel for the parties and perused the
record.
8. From the record, it is apparent that the dispute has
arisen between the parties on a trivial issue of the deceased's
bullocks having entered into the field of the appellant Than Singh
and it appears that in the quarrel, which took place on the spur of
the moment, the appellants pelted stones on the deceased and his
wife, resulting in head injury to the deceased and simple injury to
Sayaribai. The head injuries of the deceased have been proved by
PW-1 Dr. B.K. Sahu who found the following injuries on the head
of the deceased: -
(1) Swelling on the eyebrows.
(2) Swelling below the right eyelash.
(3) Lacerated wound 1/10" X 1/10" X muscle deep, 1" lateral
to the forehead, skull's medial region; and
(4) Lacerated wound 1/10" X 1/10" X muscle deep 1", this
injury was on the right side of the third injury on the lateral to
the third injury on the left forehead skull.
9. The deceased was initially examined by PW-8 Dr.
Sanjay Solanki, who found two injuries on the head of the deceased
vide Ex.P/15 as also PW-4 Dr. K.C. Gupta, who had proved X-Ray
Report Ex.P/5. PW-8 Dr. Sanjay Solanki found one lacerated
wound of size 2 cm x 1 cm with muscle deep on left side of
forehead of injured Val Singh from which blood was oozing out;
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and the second injury was again of size 1 ½ cm x 1 cm, muscle
deep on the left side of his parietal region. PW-4 Dr. K.C. Gupta
had taken X-Ray on the head of the deceased; and found fracture on
the frontal and parietal bone of his head.
10. So far as postmortem report prepared by PW-1 Dr.
B.K. Sahu is concerned, he has also found two injuries suffered by
the deceased one on the left side of brain in the medial region
(Injury No.3), whereas the other was also on the left side of Injury
No.3 in the medial region.
11. PW-4 Dr. K.C. Gupta has proved the X-Ray report and
has submitted that the deceased had a fractures on the frontal and
parietal bones.
12. It is also found that so far as the recovery is concerned,
only one stone has been recovered vide Ex.P/11, weighing one
kilogram only.
13. Forensic Science Laboratory (FSL) Report Ex.P/23 has
also been proved and although the stone had blood marks on it,
however, the report is inconclusive.
14. It is also found that the FIR Ex.P/17 has been lodged
by the deceased himself and PW-2 Sayaribai wife of the deceased
has also substantiated the contents of the FIR, which was lodged by
her husband, that the appellant (s) caused injury by pelting stone.
From her deposition it appears that only one stone was thrown by
the appellant.
15. A close scrutiny of her statement reveals that she has
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stated that the deceased appears to have suffered two fractures on
the left side of the head by one blow of stone, and died on the next
day between 09.00 AM to 10.00 AM.
16. In the considered opinion of this Court, even if the
aforesaid facts are considered to be true on their face value, the
present case certainly does not fall within the category of 'murder'
punishable under Section 302 of IPC, considering the fact that the
incident took place on the spur of the moment wherein a stone lying
on the spot was used by the deceased to assault the deceased, which
unfortunately hit him on his head, resulting in fracture on his
untimely death, at the most the case would fall under the category
of "homicidal death not amounting to murder" punishable under
Section 304 Part-II of IPC. For this purpose, reference may be had to a
decision rendered by the Supreme Court in the case of Chenda v. State
of Chhattisgarh, reported as (2013) 12 SCC 110 the relevent paras of
the same read as under: -
"4. The Sessions Court entered a finding that the
appellant Chanda Ram had the intention of killing
Ramgulal when he hit on his head with a weighted tekani
due to which he suffered serious head injury involving
five fractures and, hence, he was convicted under Section
302. However, taking note of the age of the accused as
twenty-three years and other circumstances, the appellant
was awarded life imprisonment. The first accused
Anjoriram was acquitted for want of any evidence in
relation to the act leading to the death.
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8. The crucial aspect to be analysed in this case is
whether the conduct of the appellant in inflicting the fatal
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blow is intentional and with knowledge or with knowledge
only. The medical report given by PW 14 shows that the
injury caused by the weapon used by the appellant is
sufficient in the ordinary course of nature to cause death.
Hence, we have to analyse the evidence in the light of
Section 300 clause "Thirdly" and examine whether
Exception 4 to Section 300 is applicable. Section 300
"Thirdly" reads as follows:
"300. Murder.--Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention
of causing death, or--
* * *
Thirdly.--If it is done with the intention of causing
bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary
course of nature to cause death, or--"
(emphasis supplied)
9. Exception 4 to Section 300 of the Code, reads as
follows:
"Exception 4.--Culpable homicide is not murder if
it is committed without premeditation in a sudden
fight in the heat of passion upon a sudden quarrel
and without the offender's having taken undue
advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which
party offers the provocation or commits the first
assault."
(emphasis supplied)
10. If the case falls under Exception 4, then the further
inquiry should be as to whether the case falls under the
first part of Section 304 or the second part, which reads as
follows:
"304. Punishment for culpable homicide not
amounting to murder.--Whoever commits
culpable homicide not amounting to murder, shall
be punished with imprisonment for life, or
imprisonment of either description for a term which
may extend to ten years, and shall also be liable to
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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."
(emphasis supplied)
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14. PW 14 Dr R.N. Pandey who conducted the autopsy
has stated that he had noted the following injuries:
(1) Cut wound on the head of size 4 inches × 3
inches bone-deep.
(2) Floated swelling on head and nose and on both
the eyes.
(3) There was fracture in skull on both sides of the
cuttlebone, in bell up skull and also in the bone of
nose.
(4) Fractures were also found in the left parietal
and occipital bones of the skull, there were total 5
fractures in the skull.
According to Dr Pandey, those injuries can be caused by
one blow with the weapon of offence and that the injury
was sufficient in the ordinary course of nature to cause
death.
15. The landmark judgment in Virsa Singh v. State of
Punjab draws a distinction between "Thirdly" of Section
300 and Exception 4 thereunder. The following are the
four steps of inquiry involved:
(i) First, whether bodily injury is present;
(ii) Second, what is the nature of the injury;
(iii) Third, it must be proved that there was an
intention to inflict that particular injury, that is to
say, that it was not accidental or unintentional or
that some other kind of injury was intended; and
(iv) Fourthly, it must be proved that the injury of
the type just described made up of the three
elements set out above was sufficient to cause
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death in the ordinary course of nature.
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19. In Gurmukh Singh v. State of Haryana after scanning
all the previous decisions where the death was caused by
a single blow, this Court indicated, though not
exhaustively, a few factors to be taken into consideration
while awarding the sentence. To quote: (SCC p. 642,
paras 23-24)
"23. These are some factors which are required to
be taken into consideration before awarding
appropriate sentence to the accused. These factors
are only illustrative in character and not exhaustive.
Each case has to be seen from its special
perspective. The relevant factors are as under:
(a) motive or previous enmity;
(b) whether the incident had taken place on the
spur of the moment;
(c) the intention/knowledge of the accused while
inflicting the blow or injury;
(d) whether the death ensued instantaneously or
the victim died after several days;
(e) the gravity, dimension and nature of injury;
(f) the age and general health condition of the
accused;
(g) whether the injury was caused without
premeditation in a sudden fight;
(h) the nature and size of weapon used for
inflicting the injury and the force with which the
blow was inflicted;
(i) the criminal background and adverse history
of the accused;
(j) whether the injury inflicted was not sufficient
in the ordinary course of nature to cause death
but the death was because of shock;
(k) number of other criminal cases pending
against the accused;
(l) incident occurred within the family members
or close relations;
(m) the conduct and behaviour of the accused
after the incident. Whether the accused had
taken the injured/the deceased to the hospital
immediately to ensure that he/she gets proper
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medical treatment?
These are some of the factors which can be taken
into consideration while granting an appropriate
sentence to the accused.
24. The list of circumstances enumerated above is
only illustrative and not exhaustive. In our
considered view, proper and appropriate sentence to
the accused is the bounded obligation and duty of
the court. The endeavour of the court must be to
ensure that the accused receives appropriate
sentence, in other words, sentence should be
according to the gravity of the offence. These are
some of the relevant factors which are required to
be kept in view while convicting and sentencing the
accused."
23. Having regard to the parameters indicated in
Gurmukh Singh case, the offence seems to fall under the
second part. There is no evidence of motive or previous
enmity. The incident has taken place on the spur of the
moment. There is no evidence regarding the intention
behind the fatal consequence of the blow. There was only
one blow. The accused is young. There was no
premeditation. The evolution of the incident would show
that it was in the midst of a sudden fight. There is no
criminal background or adverse history of the appellant. It
was a trivial quarrel among the villagers on account of a
simple issue. The fatal blow was in the course of a scuffle
between two persons. There has been no other act of
cruelty or unusual conduct on the part of the appellant.
The deceased was involved in the scuffle in the presence
of his wife and he had actually been called upon by her to
the spot so as to settle the score with the accused persons.
The deceased had, in the scuffle, overpowered the first
accused. That first accused was acquitted."
(emphasis supplied)
17. In view of the aforesaid discussion, testing the facts of
the case in hand on the touchstone of the aforesaid dictum of the
Supreme Court in the case of Chenda (supra), it is found that the
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incident took place on the spur of the moment, there was no
previous enmity between the party, the appellant did not take any
benefit of his situation and did not acted brutally, the weapon used
was a stone weighing one kg. only lying around the place of
incident and as such there was no premeditation in causing the
injury.
18. In such circumstances, the appeal stands allowed and
considering the period of incarceration of appellant No.1 which is
nine years and six months, we find it expedient to sentence him to
the period already undergone by him. Similarly, we find that
appellant No.2 (who happens to be wife of appellant No.1) Gurlibai
who is also sentenced to undergo six months rigorous imprisonment
under Section 323 of IPC, her sentence is also reduced to the period
already undergone by her which is two months and sixteen days.
19. With the aforesaid observation, Criminal Appeal
No.964/2014 stands disposed of, as partly allowed; and appellant
No.1 who is lodged in jail, be released forthwith, if not required in
any other criminal case. The Appellant No.2 Gurlibai W/o Than
Sngh is already released on bail, her bail bonds are discharged.
All the other pending interlocutory applications, if any,
shall stand disposed of.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
Pithawe RC
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Signed by: RAMESH
CHANDRA PITHWE
Signing time: 20-10-2022
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