Madhya Pradesh High Court
Mahesh Balai vs The State Of Madhya Pradesh on 13 December, 2023
Author: Anil Verma
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 13th OF DECEMBER, 2023
CRIMINAL APPEAL No. 6037 of 2019
BETWEEN:-
LAKHAN S/O MADANLAL GURJAR, AGED
ABOUT 21 YEARS, OCCUPATION:
AGRICULTURE, R/O VILLAGE KHAJURIYA,
TEHSIL GHATTIYA, POLICE STATION
GHATTIYA, DISTRICT UJJAIN (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI MANOHAR SINGH CHOUHAN - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
C.S.P. JIWAJIGANJ (P.S. CHIMANGANJ MANDI),
DISTRICT UJJAIN (MADHYA PRADESH)
.....RESPONDENT
(BY SMT. VARSHA SINGH THAKUR - GOVT. ADVOCATE)
CRIMINAL APPEAL No. 9138 of 2019
BETWEEN:-
MAHESH BALAI S/O BHANWARLAL @ MOHAN
BALAI, AGED ABOUT 30 YEARS, R/O VILLAGE
SAMANERA, POLICE STATION MAKDON,
TEHSIL GHATTIYA, DISTRICT UJJAIN
(MADHYA PRADESH)
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 12/15/2023
5:55:27 PM
2
.....APPELLANT
(BY SMT. VINITA AGRAWAL - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
C.S.P. JIWAJIGANJ, DISTRICT UJJAIN
(MADHYA PRADESH)
.....RESPONDENT
(BY SMT. VARSHA SINGH THAKUR - GOVT. ADVOCATE)
These appeals coming on for hearing this day, the Justice Anil
Verma pronounced the following:
JUDGMENT
Today the cases are fixed for argument on I.A.No.17817 of 2023
filed in Criminal Appeal No.6037/2019, which is an application for
suspension of sentence on behalf of the sole appellant Lakhan, however,
both the parties are agreed to argue the matter finally.
2. With the consent of parties, matter is heard finally.
3. This judgment shall govern the disposal of both the appeals. The
appellant Lakhan has preferred present criminal appeal under Section
374 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the
impugned judgment of conviction dated 06/07/2019 passed by Special
Judge, SC/ST (P.O.A.) Act, Ujjain (M.P.) in Special Case No.112/2015,
whereby appellant has been convicted under Section 302, 324 and
323/34 of Indian Penal Code, 1860 (in short, 'IPC') and has been
sentenced to undergo Life Imprisonment with fine of Rs.1,000/-, 01 year
RI with fine of Rs.500/- and 03 months RI with fine of Rs.500/-
respectively with usual default stipulation and appellant Mahesh Balai
has preferred present criminal appeal under Section 374 of Cr.P.C.
against the impugned judgment of conviction dated 08/08/2019 passed
by Special Judge, SC/ST (P.O.A.) Act, Ujjain (M.P.) in Special Case
No.112/2015, whereby appellant has been convicted under Section
302/34, 324/34 and 323/34 of IPC and has been sentenced to undergo
Life Imprisonment with fine of Rs.1,000/-, 01 year RI with fine of
Rs.500/- and 03 months RI with fine of Rs.500/- respectively with usual
default stipulation.
4. The brief facts giving rise to these appeals are that on 19/05/2015
in Village Chimanganj Mandi, complainant Mukesh's mother Shyamubai
was sleeping and Baarat procession was moving, in the night when some
of the members of Baarat, while performing dance, fell over Shyamubai
who was sleeping. Dharmendra son of Shyamubai then rebuked and and
told them to move aside and dance and not fall over the sleeping people.
While the appellant Mahesh Balai caught hold the hands of Dharmendra,
appellant Lakhan gave a knife blow to Dharmendra, due to which
Dharmendra fell down on the spot. Then, Lakhan stabbed knife on the
left side of his abdomen. Lakhan also gave a blow of knife to Mukesh,
due to which he sustained injury on the middle finger of the right hand.
Jitendra and Kamal also sustained some injuries during the scuffle.
Injured Dharmendra rushed to the Hospital, but he had been declared
brought dead. On the next day, Mukesh lodged an FIR at Police Station
Chimanganj Mandi, Ujjain. Accordingly, offence has been registered. Dr.
B. B. Purohit (PW-7) conducted the postmortem of the deceased
Dharmendra and opined that all the stabbed injuries are antemortem and
deceased died due to the excessive bleeding and syncope mode of death
because of shock and his death was homicidal in nature. MLC of other
victim persons was conducted by the Dr. K. L. Tripathi. Investigating
Officer arrested the accused person and recovered arms from their
possession. Caste certificate was also seized from the complainant.
5. After completion of investigation, charge sheet has been filed
against the appellants before the Judicial Magistrate First Class, Ujjain,
who has committed the case to the Special Judge, Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, Ujjain. The trial Court
after completion of trial and scrutinizing the evidence available on
record convicted and sentenced the appellants as mentioned herein
above. Being aggrieved by the impugned judgments, appellants have
preferred these appeals.
6. Learned counsel for the appellant appellant Lakhan in Criminal
Appeal No.6037/2019 contended that the trial Court has misread
wrongly appreciated the evidence available on record. Impugned
judgment is erroneous on facts as well as law and based on the surmises
and conjectures. There is material contradiction and omission in the
statement of Mukesh (PW-1) with FIR and statement under Section 161
of Cr.P.C. In his cross-examination, he has admitted that he never told
the names of assailants to the police. No Test Identification Parade was
ever conducted and they have given their testimony after having a look
on the accused persons on previous dates. Hence, he prays that
impugned judgment be set set aside and appellant be acquitted.
7. Learned counsel for the appellant Mahesh Balai submitted that
appellant is innocent person and has been falsely implicated in this
matter. There is material contradiction and omission in the statement of
prosecution witnesses Kamalsingh and Bherulal. The incident had taken
place in the dark night, therefore, identification of the accused persons is
very doubtful. No Test Identification Parade was conducted during the
investigation. Impugned judgment passed by the trial Court is against the
law and facts. Hence, he prays that appellant Mahesh be acquitted and
impugned order be set aside.
8. At the very outset, learned counsel for the appellants submits that
they are not assailing the findings in respect of the incident took place on
19/05/2015, the cause of death and culpability of the appellants. They
are assailing the conviction only on the ground that this is the case of
culpable homicide not amounting to murder, falls under Section 300 of
IPC (Exception 4) instead of Section 302 of IPC. At the most appellants
can be convicted under Section 304 (Part-II) of IPC because the dispute
arose by way of sudden provocation and in a heat of passion by the
deceased. The appellants were not intending to commit murder of
deceased. So far as the offence under Section 304 (Part-II) of IPC is
concerned, they have already undergone sufficient period of jail
incarceration i.e. about 09 years and also deposited the fine amount.
9. Per contra, learned counsel for the respondent / State opposes the
prayer by submitting that on the basis of the evidence available on
record, it can be safely said that both the appellants have murdered the
deceased with an intention to kill him, therefore, they have rightly been
convicted under Section 302 of IPC.
10. We have heard learned counsel for the parties and perused the
record and examined the evidence.
11. The prosecution has examined Mukesh (PW-1) as an eye-witness,
who has also stated that at the time of incident his mother Shyamubai
was sleeping and Baarat procession was moving, in the night some of
the member of the Baarat while performing dance fell over the
Shyamubai, who was sleeping. Dharmendra the son of Shyamubai then
rebuked and and told them to move aside and dance and not fall over the
sleeping people. Then Lakhan and Mahesh, who were the member of
Baarat stabbed knife in the abdomen of Mukesh, who died as a result.
Jitendra and Kamal also sustained some injuries during the scuffle.
Mukesh in para 4 categorically admits that they have no previous enmity
with the appellants. The dispute arose suddenly due to the fell over the
mother of Shyamu Bai.
12. Jitendra (PW-2), Kamal (PW-4), Bherulal (PW-4-A) also deposed
in their statement that deceased and injured have no previous enmity
with the appellants. Even they have no relation and the dispute arose
suddenly due to the fell down of some persons over the Shyamubai, who
was sleeping.
13. Both the appellants were stranger to the deceased and other victim
person. They are not having any previous enmity, therefore, they had no
motive to kill the deceased and cause injury to the victim persons. It is
clear from the evidence available on record that it is proved that there
was some sudden provocation by the deceased. There was no previous
enmity or any previous dispute between them. There was no preparation
or premeditation in the mind of appellants to murder the deceased. In a
heat of passion, out of anger they have attacked upon the deceased and
victim person. One injury was caused to the deceased by knife blow on
the left side of his abdomen, which indicates that the appellants have not
taken any undue advantage of the deceased. The manner of occurrence
of the incident and the injury inflicted upon the deceased, attracts
exception 4 of Section 300 of IPC.
14. The Hon'ble The Hon'ble Supreme Court has also held in the case
of Arjun and Anr. Vs. The state of Chhattisgarh reported in 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'."
15. In the case of Sikandar Ali Vs. The state of Maharashtra
reported in AIR 2017 SC 2614, the Court altered the conviction under
Section 302 IPC to Section 304(Part-II) 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."
16. In view of the above discussion and law laid down by the Apex
court in the aforesaid case and the statement given by witnesses, it is a
fit case for altering the conviction under section 302 of the IPC in
respect of appellant Lakhan and under Section 302/34 of IPC in respect
of appellant Mahesh to Section 304 (Part- II) of the IPC.
17. The conviction and sentence are hereby altered. The sentence of
Life Imprisonment is reduced to the period already undergone by the
appellants. The appeals are partly allowed and it is directed that the
appellants be released from jail forthwith, if not required in any other
case.
18. Record be sent back to the concerned trial court with copy of this
judgment.
19. Signed judgment be kept in file of Criminal Appeal No.6037/2019
and a copy thereof be placed in the file of connected Criminal Appeal
No.9138/2019.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
J U D G E J U D G E
Tej
