Madhya Pradesh High Court
Ankush @ Shanku vs The State Of Madhya Pradesh on 13 January, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
JUSTICE SUJOY PAUL
&
JUSTICE AMAR NATH (KESHARWANI)
CRIMINAL APPEAL No. 417/2015
BETWEEN:-
1. ANKUSH @ SHANKU S/O
SHRI SHAVJI PAWAR AGED
ABOUT 32 YEARS R/O-
GAMBHIRPURA P.S.-
NIMBOLA,DISTT.BURHANPUR
(MADHYA PRADESH)
2. SULTAN S/O- SHRI
KHUMAN PAWAR, AGED
ABOUT 55 YEARS R/O-
GAMBHIRPURA P.S.-
NIMBOLA, DISTT.
BURHANPUR (MADHYA
PRADESH)
.....APPELLANTS
(SHRI M.K.TRIPATHI- ADVOCATE FOR APPELLANT NO. 1 AND SHRI
Z.M.SHAH - ADVOCATE FOR APPELLANT NO. 2)
AND
1 THE STATE OF MADHYA
. PRADESH, THROUGH
POLICE STATION-
NIMBOLA, DISTT.
BURHANPUR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI AJAY SHUKLA - GOVERNMENTADVOCATE)
................................................................................................
......
2
Reserved on: 09/01/2023
Pronounced on: 13 /01/2023
.....................................................................................
This Criminal Appeal having been heard and reserved for judgment,
coming on for pronouncement on this day,JusticeAmar Nath
(Kesharwani) pronounced the following:
JUDGMENT
This is an appeal filed under Section 374(2) of the Code of
Criminal Procedure, 1973 (In short "Cr.P.C") against the judgment dated
31.01.2015 passed in Sessions Trial No. 37/2014 by learned III
Additional Sessions Judge, Burhanpur, whereby the appellant
No.1Ankush alias Shanku was held guilty for committing an offence
punishable under Section 302 of Indian Penal Code (In short "IPC") and
appellant No.2 Sultan was held guilty for committing an offence
punishable under Section 302/34 of Indian Penal Code and directed them
to undergo sentence of life imprisonment with fine of Rs.1000/- each,
with default stipulation.
2. The prosecution story, in brief, is that on, 11.05.2014 Choki
In-charge-Assistant Sub-Inspector LiyakatMansoori (PW-11) posted at
Police Choki Dhoolkot, Police Station Nimbola, District Burhanpur
received information that at "Shiva Baba Mela Parisar", somebody has
stabbed [email protected] Vishnu with a knife. On receiving that information ASI
Liyakat Manssori (PW-11) was intimated by informer/complainant
Poonam (PW-10) that he runs a Pan shop at 'Sukhta Nursery Mela
Parisar' and in front of his shop, Ankush (Appellant no.1) also runs a
shop of 'coconut and prashadi'; afternoon at 01:00 P.M. [email protected]
Vishnuwas selling "flowers-prasadi"behind his shop on which Ankush
(Appellant no.1) shouted at deceased that he should not sell goods in
front of his shop to which replied that "he is not selling goods in front of
his shop". On that, the appellants went behind the shop of the
complainant (PW-10) and appellant No.1 Ankush @ Shanku started
shouting and abusing the deceased, and the deceased asked them to stop,
then the complainant (PW-10) also went back to his shop and at that
moment, the appellant No.2 Sultan caught hold of the deceased and
appellant No.1 Ankush @ Shanku assaulted the deceased @ Vishnu with
the knife on his thigh, due to which he started bleeding and fell on the
ground and both accused persons fled from the spot". On the information
given by the informer/complainant Poonam (PW-10), Liyakat Mansoori
(PW-11) lodged the Dehati Nalsi Ex.P-13 on the spot for the offence
punishable under Sections 294, 307, 34 of IPC. Thereafter, at Police
Station Nimbola District Burhanpur, F.I.R. (Ex.P-9) was registered
against the appellants at Crime No.155/2014. The injured was sent to the
District Hospital, Burhanpur for treatment. In the hospital, [email protected]
Vishnu was examined by the doctor and was declared dead. Then Marg
No.051/2014 (Ex.P-12) was registered at P.S. Kotwali District
Burhanpur,which was sent to Police Station Nimbola where the offence
vide crime no. 155/14 F.I.R. (Ex.P-9) was registered.
3. During the investigation, a spot map (Ex.P/14) and naksha
panchayatnama of the dead body (Ex.P-11) were prepared in presence of
witnesses.The dead body of the deceased [email protected] Vishnu was sent for
postmortem, which was conducted by the doctor Y.B.Shastri (PW-3) and
he opined that "the cause of death was due to shock as a result of massive
hemorrhagic (due to injury to major artery-femoral Artery)" and prepared
the autopsy report Ex.P-6. During the investigation, appellants were
arrested vide Ex.P-1 and Ex.P-2, and on the basis of the disclosure
statement of Ankush @ Shanku (appellant No.1), a knife was recovered
as per the seizure memo (Ex.P-3). A blood stained shirt was also
recovered from appellant No.1 vide seizure memo (Ex.P-5). The police
recorded the statements of witnesses and sent the seized articles to FSL
for chemical examination. FSL report (Ex.P-17) was received. As per the
FSL report (Ex.P-17), human blood was also found on the knife
Article-"H" and Shirt Article-"I". Upon completion of the investigation,
the charge sheet was filed before the Competent Court, from where the
trial was committed to the Sessions Court, Burhanpur. After that, the case
was made over to IIIrd ASJ, Burhanpur for disposal according to law.
4. Trial Court framed the charges under Sections 294 and
302/34 of IPC against appellant No.1 Ankush and charges were framed
under Section 294 and 302/34 of IPC against appellant No.2 Sultan,
which they have denied and pleaded for the trial.
5. The prosecution has examined 13 witnesses and exhibited 17
documents to prove the case, and the appellants have not examined any
witnesses in their defence. After evaluating the evidence that came on
record, the Trial Court founds the appellants guilty and sentenced them as
mentioned hereinabove. Being aggrieved by the said judgment of
conviction and sentence, the appellants have filed this Criminal Appeal
before this Court.
6. Learned counsel for the appellants submits that conviction
and sentence recorded by the learned court below are erroneous in law
and facts. Counsel for the appellants submits that there is no pre-
meditation and the incident took place on a trivial matter of selling of
"flowers and prasadi" and the incident took place due to a sudden quarrel,
and injuries were caused on the thigh which is not a vital part of the body.
Therefore, appellant No. 1 had no intention to cause the murder of the
deceased and as per the prosecution story; only a single blow of the knife
was caused by Appellant no.1 to the deceased. Therefore, the intention to
murder is not established, and therefore, conviction and sentence by the
learned trial Court under Section 302 is erroneous, and the sentence for
life deserves to be set aside and submits that in the given circumstances,
the offence could not travel more than 304 Part-IIof IPC, as no injury was
caused on the vital organs of the body and offence was committed out of
anger and further submits that the appellant is in jail for more than 8 years
and he has no criminal background, hence, the period of sentence may
kindly by reduced to the sentence as already undergone served by the
appellant no.1.
7. Counsel for appellant No. 2 draws the attention of this court
to Para 2 of the statement of Poonam (PW-10) in which he has stated that
when Ankush stabbed the deceased, at that time Sultan (Appellant no.2)
was nearby Ankush (Appellant no.1) and submits that the Appellant no.2
had not caught hold the deceased at the time of the incident and further
submits that even if the prosecution story is to be believed, then the only
charge against the appellant No. 2 is that he caught hold of the deceased
and further submits that the Appellant no.2 has not caused any injury to
the deceased and therefore, conviction and sentence under Section 302/34
of IPC is erroneous and submits that he is also in custody since 12-05-
2014 to 26-08-2022, at which point his jail sentence was suspended by
this court and therefore, submits that the appellant No. 2 is also in jail for
more than 8 years and he also has no criminal background, hence the
period of sentence may kindly be reduced to the period of incarceration
already undergone by the appellant no.2 by altering the charge.
8. In support of the arguments advanced by the learned,
counsel for the appellants has placed reliance on the citations of
Harjinder Singh @ Jindavs. Delhi Administration 1968 AIR 867,
Gokul Parashram Patil vs. State of Maharashtra 1981 AIR 1441,
Atul Thakur vs. State of Himachal Pradesh and Others (2018) 2 SCC
496 and Kala Singh @ Gurnam Singh vs. State of Punjab (2021) 10
SCC 744.
9. Learned counsel for the respondent/State opposed the
aforesaid prayer by submitting that the appellants have committed the
murder of Ishya @ Vishnu with intention and caused injury by sharp
edged weapon hence, the learned trial Court has rightly convicted
appellant No. 1 under Section 302 of IPC and appellant No. 2 under
Section 302/34 of IPC. It is further submitted that the sole ground that a
single injury was caused by the appellants is not sufficient to alter the
conviction of the appellant No. 1 from Section 302 IPC to Section 304
Part-II IPC and conviction of the appellant no.2 from Section 302/34 of
IPC to Section 304 Part-II of IPC. In support of his contentions, learned
counsel for the respondent/State has placed reliance on the citation of
Manubhai Atabhai Vs. State of Gujrat AIR 2007 SC 2437, Mahesh
Balmiki @ Munna Vs. State of M.P. AIR 1999 SC 3338 and on a
decision of Gwalior Bench of this Court passed in Cr.A No.
1049/11( Chandrabhan vs. State of M.P), CRA No. 102/2012 ( Ravi
and another Vs. State of M.P. ), and CRA No. 160/2012 ( Ashish and
another Vs. State of M.P. ) decided on 13 th May 2022 and submits that
in all the cases, a single blow was caused but, the conviction was upheld
under Section 302 of IPC.
10. We have perused the record of thelearned Trial Court and
have gone through the citations placed by the counsel for the parties. In
the case of Mahesh Balmike @ Munna (supra), the injury was caused
on the chest with a knife which is a vital part of the body. In the case of
Manubhai Atabhai (supra), the injury was caused on the abdomen
below the stomach and had infected the vital part i.e, the liver and in the
cases of Criminal Appeal No. 1049/11, CRA No. 102/2012 and CRA
No. 160/2012, the injury was caused by a gun-shot which hit on the chest
on the deceased whereas in the present case as per the prosecution, the
injury was caused by the appellant no.1 on the right thigh of the deceased,
therefore, the present case is different from the facts and circumstances of
cases of Criminal Appeal No. 1049/11, CRA No. 102/2012 and Cr.A
No. 160/2012.
11. In the case of Harjinder Singh @ Jinda (supra), in the
case of a single injury, the Hon'ble Supreme Court altered the conviction
under Section 302 of IPC to Section 304 Part-I, and the appellant was
sentenced to 7 years R.I. In the case of Gokul Parasharam Patil
(supra), the Hon'ble Supreme Court altered the sentence under Section
302 of IPC to Section 304 Part-II of IPC and sentenced for 5 years. In the
case of Atul Thakur (supra), the Hon'ble Supreme Court also altered
the conviction and sentence under Section 302 of IPC to Section 304 Part
-II of IPC and sentenced undergo for 10 years and in the case of Kala
Singh (supra),the Hon'ble Supreme Court altered the conviction under
Section 304 Part-I/34 of IPC to Section 304 Part-II/34 of IPC.
12. Since, there was an altercation between the appellant No. 1-
Ankush @ Shanku on the point of selling of "flowers-Prasadi" and in the
said altercation, appellant No. 1 used profanities directed at the deceased
and when the deceased asked appellant No.1 to stop, then the appellant
No. 1 stabbed the deceased with a knife on the thigh due to which, the
deceased succumbed to death caused by excessive bleeding which shows
that there is no pre-mediation, and the act was done in a sudden quarrel
and in the heat of passion and without the taking of an undue advantage,
appellant No.1 has caused stab injuries to the deceased which, proved
fatal. Therefore, appellant No. 1 had no intention to kill the deceased. As
per the post-mortem report (Ex.P-6) cause of death is due to shock as a
result of "massive hemorrhagic due to injury of the femoral artery".
Therefore, appellant No.1 had no intention to cause the death of the
deceased, but he had knowledge that it is likely to cause death or to cause
such bodily injury as is likely to cause death. Therefore, the action of
appellant No. 1 comes under exception IV of Section 300 of IPC.
13. We have considered the arguments of learned counsel for
appellant no.2 and perused the record. Vijay (PW-1) has stated in his
Chief examination before the trial court in paragraph-1 that on the date of
the incident when he was returning from his Tea Shop, at that time, he
saw that was carrying a garland and was passing by the shop of Ankush
(Appellant No.1). At that time, the appellant No. 1 Ankush started
abusing and started fighting. At that time, Sultan (Appellant No. 2) who
was standing nearby came to Ankush (Appellant No.1) and said "kill".
Thereafter, Sultan (Appellant No. 2) held both the hands of (deceased)
and Ankush pulled out a knife from his waist and hit on the right thigh.
Therefore, as per the statement of PW-1, it reveals that appellant No. 2
(Sultan) was also present on the spot and he provoked to kill the deceased
and caught hold of the hands of, which shows that common intention of
the appellant No. 2 was present. PW-1 has denied the facts in paragraph-
32 of cross-examination that appellant No. 2 had not caught hold of the
deceased. Therefore, the statement regarding the holding of the deceased
by appellant No. 2(Sultan) is unchallenged.
14. The Hon'ble Supreme Court has held in Gurpal Singh v. the
State of Punjab, AIR 2017 SC 471. Para 10 of the judgment 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."
15. The Hon'ble Supreme Court has laid down in Prabhakar
Vithal Gholve v. the State of Maharashtra, AIR 2016 SC 2292 that if the
assault on the 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. The state of
Maharashtra, AIR 2017SC 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."
16. The Hon'ble Apex Court laid down in Madhavan and Ors.
Vs. The 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 about their behavior. 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."
17. In view of the foregoing discussion and looking at the
verdicts of the Hon'ble Apex Court as mentioned hereinabove, the
judgment of conviction dated 31-01-2015 is hereby confirmed and the
culpability of the appellants is maintained. The conviction of appellant
No. 1 under Section 302 of IPC is set aside and he is convicted for the
offence punishable under Section 304 Part-II of IPC and sentenced to
undergo rigorous imprisonment for 7(seven) years with the same fine
amount as awarded by the learned trial Court. The conviction of appellant
No. 2 under Section 302/34 of IPC is also altered to Section 304 Part-II of
IPC and sentenced to undergo rigorous imprisonment for 7 (seven) years
with the same fine amount as awarded by the learned trial Court
18. Appellant No. 1 is in custody since 12-05-2014 till today and
appellant No. 2 is in custody since 12-05-2014 till 26-08-2022. Thus,
both the appellants have undergone more than 08 years of the actual jail
sentence. Therefore, the appellant No.1 be released from jail, after
depositing the fine amount, if not already deposited and if he is not
required to in any other case. Appellant No.2 is on bail in compliance of
the order passed by this Court dated 26.08.2022 therefore, the bail bond
of appellant No.2 is hereby stands cancelled. Thereby, this appeal is
partly allowed to the extent mentioned hereinabove.
19. Record of the court below along with a copy of this
judgment be sent forthwith for information and compliance.
(SUJOY PAUL) (AMAR NATH (KESHARWANI))
JUSTICE JUDGE
SM+PG/-
PARMESHWAR
Digitally signed by PARMESHWAR GOPE
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF
MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh,
2.5.4.20=82e4be00421d7168dfc282cfc357856fc6fa58156627841fc401a18c295
GOPE
5934c, pseudonym=020D6E923490EAA193897797C7592CCCAE0BB207,
serialNumber=2F05862D8C7B23CB0342CF147B31E5C9457D231BD487224BD
5161BABC38A7794, cn=PARMESHWAR GOPE
Date: 2023.01.17 13:43:55 +05'30'
