Madhya Pradesh High Court
Shobharam vs The State Of Madhya Pradesh on 1 May, 2023
Author: Vivek Rusia
-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 1st OF MAY, 2023
CRIMINAL APPEAL No. 589 of 2012
BETWEEN:-
SHOBHARAM S/O MORSINGH, AGED ABOUT 60
YEARS, OCCUPATION: LABOUR, R/O FARASPURA,
THANA DHAMNOD, DISTRICT DHAR (MADHYA
PRADESH)
.....APPELLANT
(SHRI RAMESH CHANDRA VERMA, LEARNED COUNSEL FOR THE
APPELLANT.)
AND
THE STATE OF MADHYA PRADESH GOVT.
THROUGH POLICE STATION DHAMNOD,
DISTRICT DHAR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHUWAN DESHMUKH, LEARNED GOVERNMENT ADVOCATE FOR
THE RESPONDENT/STATE)
Reserved on : 05.04.2023
Delivered on : 01.05.2023
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This appeal coming on for judgments this day, JUSTICE VIVEK
RUSIA passed the following:
JUDGMENT
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 02-05-2023
11:26:39
Appellant has filed the present appeal being aggrieved by
judgment of conviction dated 19.04.2012 passed by Third Additional
Sessions Judge, District Dhar in Session Case No.12/2012 whereby he
has been convicted under Section 302 of IPC and sentenced to undergo
Life Imprisonment with fine of Rs.1,000/- and Section 25 (1-b)(b) of
Arms Act and sentenced to undergo 1 year's R.I. with fine of Rs.500/-
with default stipulation.
(2) The case of the prosecution, in brief, is as follows: -
(a) Complainant Fundabai lodged a report in police station Dhamnod,
District Dhar that she resides in village Paraspura and in front of her
house, her Jeth i.e. Shobharam (elder brother of her husband) also
resides. He was abusing her husband Chhagan since last 2-3 days. On
25.11.2011, at near about 07:30, he started abusing her husband when
her husband objected, Chhagan demanded the land and when
Shobharam denied he took out the sword and gave a blow on the neck of
her husband, he fell down and died. Fundabai shouted and Ashok, Kalu,
Babu and Babulal came, Shobharam entered in his house and closed the
door. FIR was registered at crime No.436/2011 under Section 301 of
IPC. At the instance of Fundabai, spot map was drawn, Naksha
Panchyatnama of dead body was prepared by issuing a Safina form
(Ex.P/7). The dead body was sent to see HC Dhamnod for autopsy from
where the report Ex.P/10 came. From the spot blood contained soil and
plain soil were seized, the statements of aforesaid witnesses were
recorded. The appellant was arrested from his house and on his
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 02-05-2023
11:26:39
disclosure a sword was recovered below his mattresses. All the seized
articles were sent to FSL vide Ex.P/18, from where the report Ex.P/12
came. The human blood was found on the sword as well as the cloth of
the deceased. After completing the investigation, charge-sheet was filed
under Section 302 of IPC and 25 (1-b)(b) of Arms Act. The trial was
committed to the session Court, charges were read over and explained to
the accused which he denied and pleaded for trial. He pleaded innocent
and false implication by the family member with an intention to grab his
land.
(3) Before the trial Court, the prosecution examined 9 witnesses and
exhibited 18 documents. The appellant did not examine any witness.
(4) After appreciating the evidence came on record vide judgment
dated 19.04.2012 the appellant has been convicted and sentenced to jail.
He is in jail since 25.11.2011 and has completed more than 12 years
actual jail sentence.
(5) Learned counsel for the appellant submits that the appellant is an
aged person, he was of a saintly attitude. After committing the crime, he
did not run away from the spot but rather closed himself inside the
room. It is further submitted that the appellant has committed offence in
spur of moment without understanding its consequences, there was no
previous enmity with his younger brother, therefore, the conviction
under Section 302 part I of IPC. The appellant is not ascertaining the
offence of other issues which may be treated as conclusive.
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 02-05-2023
11:26:39
(6) Learned Government Advocate for the respondent / State opposes
the aforesaid prayer by submitting that the appellant with an intention to
kill gave a blow on a vital part of the body. Chhagan died on the spot,
therefore, the intention of appellant was very clear to kill his brother
hence, he has rightly been convicted under Section 302 of IPC therefore,
appeal be dismissed.
We have heard learned counsel for the parties and perused the
record.
(7) Prosecution has examined Fundabai PW/1 as an eye witness at
whose instance the FIR was registered. According to her, the appellant
was creating a dispute with Chhagan since last 2-3 days, on the date of
incident also her husband went to explain him but he took out the sword
and hit on the neck. At that time, only AShok was present and the
accused entered into the house. The incident was not witnesses by
Fundabai and she was informed by Ashok Bhanwar PW/2 who is son of
one of the brother of appellant as well as deceased. In cross-examination
he admitted that there was no previous enmity between them. Even the
Fundabai has stated that there was no previous enmity and he was of a
saintly attitude. It is a case of single blow on the neck due to which the
wind pipe was totally cut, the blood was found on the sword hence, all
the findings recorded by the trial Court are hereby confirmed.
(8) So far as the conviction under Section 304 Part I of IPC is
concerned, as discussed above, there was no previous enmity. All of a
sudden, a dispute arose between appellant and Chhagan and he took out
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 02-05-2023
11:26:39
the sword and gave him a blow. Offence will come under Section 304
Part I of IPC.
(9) The Hon'ble Supreme Court has held in Gurpal Singh v. 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."
(10) The Hon'ble Supreme Court has laid down in Prabhakar Vithal
Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if the assault
on 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. State of
Maharashtra, AIR 2017 SC 2614, the Court altered the conviction u/s
302 IPC to one u/s 304 part-2 IPC in the following circumstances:
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 02-05-2023
11:26:39
"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."
(11). In view of the above discussion and verdicts of the apex court, the
criminal appeal is partly allowed. We hereby confirm all the findings
given by the learned Additional Session Judge except the conviction
which is hereby altered to section 304 Part I of IPC, instead of Section
302 of IPC and accordingly sentence is reduced from LIFE
IMPRISONMENT to the period already undergone. The fine amount is
maintained as imposed by the trial court. The appellant be set free after
depositing the fine amount if he is not required to keep in jail in any
other case.
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 02-05-2023
11:26:39
Record of the trial Court be sent back along with a copy of this
judgment.
C.C. as per Rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Divyansh
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 02-05-2023
11:26:39
