Madhya Pradesh High Court
Raghu @ Raghuram vs The State Of Madhya Pradesh on 18 January, 2023
Author: Vivek Rusia
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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 18th OF JANUARY, 2023
CRIMINAL APPEAL No. 924 of 2010
BETWEEN:-
RAGHU @ RAGHURAM S/O NAHARSINGH, AGED
ABOUT 30 YEARS, R/O SALAKHEDI PS KASRAWAD
TEH.AND DISTT. KHARGONE (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI DHARMENDRA YADAV- ADVOCATE THROUGH LEGAL
AID)
AND
THE STATE OF MADHYA PRADESH GOVT.
THROUGH POLICE STATION BHAGWANPURA
DIST.KHARGONE (MADHYA PRADESH)
.....RESPONDENT
( BY AMIT SINGH SISODIA- GOVERNMENT ADVOCATE)
This appeal coming on for orders this day, JUSTICE VIVEK
RUSIA passed the following:
JUDGEMENT
Present Criminal Appeal arises out of the judgment dated
24.02.2010 rendered by 5th Additional Sessions Judge, Khargone,
(West Nimar) in Sessions Case No.125 of 2009 whereby the appellant
has been convicted under Section 302 of the Indian Penal Code, 1890
and sentenced to undergo life imprisonment and to pay a fine of
Rs.5,000/-, in default thereto, to further undergo 1 year imprisonment.
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The facts of the case, in short, are as under:-
2. The Karan aged about 50 years (now referred to as ''deceased"
for convenience) was working in the stone quarry situated at Aagarbai
owned by Jaiswal. This appellant and his wife were also working in
the said quarry. On 20.04.2009, the appellant, his wife and the
deceased were returning to village Modhan. On the way, the appellant
and his wife started quarrels, this appellant tried to intervene in order
to resolve the dispute. The appellant become annoyed because he used
to doubt that his wife in relation to the deceased. Mahendra and Anar
Singh also seen the appellant fighting with the deceased, thereafter
they left the place. On the next day, dead body of Karan was found on
the agricultural field with injuries on his head. Information was sent to
the police, FIR Ex.P-9 was registered. Police reached the spot and
called the five witnesses. Safina form and Naksha Panchanama were
prepared. Plan and blood soil were collected. This appellant was
arrested, the dead body was sent for autopsy, which was conducted by
PW-2 Dr. Ravish Saraf and according to his report deceased died due
to the injury sustained on his head. Bloodstain cloths were sent for
FSL and after the test report Ex.24 was received. According to it,
human blood was found on the cloth of the appellant and deceased.
3. Upon completion of the investigation, on the basis of the
material collected against the accused person, the Investigating Officer
found a prima facie case against the accused and a charge sheet came
to be filed before the court of learned Judicial Magistrate, First Class,
on the alleged offence of murder of deceased. Since the offence
alleged against the appellant was triable by the Court of Sessions, the
trial was committed to the court of sessions under Section 209 of the
Code of Criminal Procedure, 1973, which came to be registered as
Sessions Case No.125 of 2009.
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4. On committal, the case was transferred and placed for trial
before the learned Additional Sessions Judge, who had initially framed
the charge vide order dated 15.07.2009 for the offence under section
302 of I.P.C.. The charge was read over and explained to the accused.
Plea of accused came to be recorded, wherein the accused pleaded not
guilty to the charge and claimed to be tried.
5. The prosecution in order to prove the charge against the
appellant examined as many as 14 witnesses and exhibited 24
documents, whereas the appellant-accused in support of his defence
has not examined any witness, but exhibited two documents i.e.
statement of Sharad and Dilip exhibiting it as D/1 and D/2.
6. The learned trial Court after appreciating the oral and
documentary evidence available on record proceeded to convict the
appellant for an offence under Section 302 of IPC and sentenced him
as mentioned herein-above, against which this appeal has been
preferred by the appellant-accused questioning the impugned
judgment of conviction and order of sentence.
7. Learned counsel appearing on behalf of the appellant through
legal aid submits that there was no previous enmity between the
appellant and the deceased. The appellant started a fight with his wife
in which the deceased tried to intervene due to which the appellant
become annoyed and started throwing the stone at him. The dispute
suddenly occurred and the appellant became annoyed with the
deceased and committed offence unintentionally. The offence will not
travel more than section 304 (Part-I) of IPC for which he has
undergone a sufficient sentence of more than 10 years.
8. Government Advocate opposes the prayer made by the
appellant by submitting that the appellant has rightly been convicted
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for the offence punishable under Section 302 of IPC as he was last
seen altogether with the deceased and on his cloth human blood was
found for which he did not give any explanation.
Heard learned counsel for the parties and perused the entire
record available alongwith Criminal Appeal.
9. As per the statement of Anarsingh (PW-4), all labourers were
returning from the stone quarry and on the way, this appellant and his
wife started a quarrel, the deceased came to intervene in the matter,
thereafter he went to his house, later he came to know that the dead
body of deceased lying on the field. Apart from this, the prosecution
has not collected better evidence, however, other local residents have
stated that the appellant and the deceased had a good relationship with
the appellant. There was no previous enmity between them, therefore,
there was no motive or plan for the murder of Karan. The dispute was
going on between the appellant and his wife, the deceased came to
intervene thus appellant become annoyed and threw stones at the
deceased. As per the autopsy report no fracture was found, and there
was no intention to kill the deceased. Therefore, in view of the law
laid down by the Apex Court in the cases of Gurpal Singh v/s The
State of Punjab reported in AIR 2017 SC 471, Arjun & Another v/s
The State of Chhattisgarh reported in AIR 2017 SC 1150,
Prabhakar Vithal Gholve v/s The State of Maharashtra reported in
AIR 2016 SC 2292, Sikandar Ali v/s The State of Maharashtra
reported in AIR 2017 SC 2614, Madhavan & Others v/s The State of
Tamil Nadu reported in AIR 2017 SC 3847 and Ankush Shivaji
Gaikwad v/s The State of Maharashtra reported in (2013) 6 SCC
770, the offence will not travel more than Section 300 exception IV of
the IPC for which the appellant is liable to be convicted for the
offence punishable under Section 304 Part - I.
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10. The Hon'ble Supreme Court has held in Arjun & Another
(supra) 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
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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'."
11. The Hon'ble Supreme Court has laid down in Prabhakar
Vithal Gholve v/s The State of Maharashtra reported in AIR 2016
SC 2292 that if the assault on the deceased could be said to be on
account of the sudden fight without pre-meditation, in heat of passion
and upon a sudden quarrel, Conviction of the appellant cannot be
sustained under Section 302 and altered to under Section 304 Part-I of
IPC.
12. In view of the foregoing discussion, this appeal is partly
allowed. The conviction of the appellant u/s. 302 of the IPC is
modified and he is convicted for an offence punishable u/s. 304 Part-
I of the IPC and his sentence is converted to life imprisonment to the
period already undergone. The fine amount is maintained.
This criminal appeal is partly allowed.
Record of the trial court be sent back along with a copy of this
order.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
praveen
Digitally signed by
PRAVEEN NAYAK
Date: 2023.01.20
17:40:51 +05'30'
