Madhya Pradesh High Court
Jonu @ Joni Khan vs The State Of Madhya Pradesh on 6 August, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1 CRA-948-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 6 th OF AUGUST, 2024
CRIMINAL APPEAL No. 948 of 2017
JONU @ JONI KHAN
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Asha Ram Shivhare - Advocate for the appellant.
Dr. Anjali Gyanani - Public Prosecutor for the respondent/State.
ORDER
Per: Justice Rajendra Kumar Vani
With the consent of parties, this appeal is heard finally.
2. Present appeal under Section 374 of IPC has been filed against the
Judgment dated 03/06/2017 passed by the Sessions Judge, District Bhind, in
Sessions Trial No.1500202/2016, whereby the present appellant has been
convicted under Section 302 of IPC and sentenced to undergo life
imprisonment with fine of Rs.1000/- with default stipulation.
3. Succinctly, the story of prosecution is that daughter of complainant Sitara
namely Shama had solemnized marriage with appellant Jonu. Out of the
wedlock, two children one son and one girl were born. For the last one year,
Shama was residing along with her husband/appellant in the house of
Shaheed Khan. Shama had also solemnized court marriage with Shaheed
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Khan. The appellant used to work as labourer in Phooph. On 30.5.2016 at
6.30 am elder daughter of complainant Sitara namely Shabnam informed on
mobile that Shama has been murdered, on which complainant along with his
son Sirajuddin went to Phooph at the house of Shaheed where she found that
Shama is lying dead on cot. A cloth was tied on her neck and blood was
oozing out from her nose and ear. The complainant suspected that murder of
her daughter has been committed by appellant as he used to quarrel with her.
The complainant along with his son Sirajuddin and daughter Shabnam went
to police Station Phooph and lodged the report on which crime No.118/2016
was registered under Section 302 of IPC against the appellant. Matter was
investigated. After completion of investigation, charge-sheet was filed. The
case was committed to the Sessions Court. Charge was framed against the
appellant which he denied and claimed for trial.
4. The prosecution in order to prove the charge examined as many as 7
witnesses and placed 14 documents on record. However, appellant chose not
to examine any witness in his defence.
5. After evaluating the evidence came on record, Sessions Court has
convicted and sentenced the appellant as aforesaid.
6. Learned counsel for the appellant, at the very outset, submits that he is
not assailing the findings recorded by the trial Court on various issues like
date of incident, cause of death and complicity of present appellant in the
crime. Learned counsel for appellant further submits that there is no
allegation that present appellant has caused injury with intention to commit
Signaturemurder of
Not Verified the deceased. Moreover, no deadly weapon has been used in
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commission of crime. As per the facts and circumstances available on record,
the deceased, who was wife of present appellant, started living with Shaheed
Khan and that's why the dispute arose between present appellant and the
deceased and in a fit of rage appellant/accused inflicted single blow of Fanti
(cut piece of wood) on the head of the deceased. It was not a pre-planned
murder. It is further submitted that appellant is not a habitual offender and
has no criminal antecedents. Present appellant is in jail since 21.6.2016.
Therefore, prayed to alter the conviction of appellant from Section 302 of
IPC to Section 304 Part II of IPC with the sentence already undergone by
him.
7. Learned counsel for the State opposed the prayer by submitting that
present appellant inflicted fatal blow of Fanti on the head of the deceased,
therefore, he has rightly been convicted under Section 302 of IPC and no
interference is called for. The impugned judgment of conviction and sentence
is liable to be maintained.
8. We have heard learned counsel for the parties and perused the record.
9. Homicidal death of the deceased is not in dispute. Dr.R.K.Agrawal (PW-
6), who has conducted postmortem over the body of the deceased, has found
one 3x 2 cm mark on the eyebrow of left eye with redness. Parietal bone
was found fractured towards right side. There was also ligature mark of size
2 cm below thyroid cartilage. As per the opinion of the doctor, cause of
death was coma due to head injury.
10. In the present case, the main witness of the prosecution is Sahiba (PW-
Signature2),
Notwho happens to be daughter of the deceased and present appellant. She
Verified
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4 CRA-948-2017
stated in her statement that appellant has inflicted blow of Fanti (cut piece of
wood) on the head of her mother, who was sleeping at that time on folding
bed. Thereafter appellant went to the police station. Her mother died. This
witness though stated that she was sleeping in the night when her mother
died, but she denied that she has not seen her father inflicting injury to the
deceased. The evidence of this witness reveals that incident was occurred in
the night and it was time for her sleep, but the incident was clearly seen by
this witness. She also admits that there was darkness in the night, but even
though she remained intact on the statement that she has seen the incident
directly. The appellant and deceased are father and mother of this witness,
therefore, no doubt appears as to their identity. She is six years old girl, but
having regard to the consistency of her statement, no ground appears to
disbelieve her testimony.
11. Sitara (PW-1), mother of the deceased, Sirajuddin (PW-3), bother of
the deceased, and Shabnam (PW-5), sister of the deceased, have not
supported the case of the prosecution. As per their statements, they saw the
deceased after her death, but they denied that incident was caused by present
appellant and that he used to quarrel and cause Marpeet with the deceased.
Sirajuddin (PW-3) stated that he has doubt on Shaheed to commit murder of
the deceased.
12. In light of aforesaid evidence, it appears that since the deceased has
started living with Shaeed Khan after solemnizing court marriage with him, a
dispute arose between appellant and deceased. Deceased sustained one
Signaturefracture on parietal bone which was the cause of her death.
Not Verified As per the
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5 CRA-948-2017
statement of Dr. R.K.Agrawal (PW-6) there was no bleeding from the injury
on eye-brow and there was only redness. Blood was oozing out from nose
and ear of the deceased. As regards injury on eye-brow, the doctor admits
that such injury could be possible due to fall on earth.
13. Having regard to the nature of injury and the circumstances present at
the time of commission of such offence, it reveals that due to fit of rage in
heat of passion due to dispute subsists, appellant has inflicted blow by means
of Fanti (cut piece of wood) which is not a deadly weapon and it appears
from the statement of Sahiba (PW-2), that no repeat blow of Fanti was
inflicted. Therefore, it is found that there was no intention of the appellant to
cause murder of the deceased by inflicting such injury. It was not a pre-
planned murder as per the evidence came on record.
14. In Chand Khan v. The State of Madhya Pradesh reported in 2006 (3)
M.P.L.J. 549 , the Division Bench of this Court has also converted the
conviction of the appellant in attaining facts and circumstances of the case.
Para - 10 & 11 of the judgment are relevant which read thus: -
"10. If the present case is considered in the light of the aforesaid
decisions of the Supreme Court, it would show that the appellants
caused single injury on the head of the deceased by farsa, which is
a sharp edged weapon, but unfortunately Aziz Khan (PW-11) and
Ishaq Khan (PW-13) have stated that he gave lathi blow on the
head of the deceased. Even after considering this contradictory
evidence it has to be taken into consideration that it is a case of
single farsa blow inflicted by only appellant Chandkhan and
appellant Naseem inflicted only lathi blow on the nonvital part of
the body and in the absence of this evidence that the injury no.(i)
was sufficient to cause death in the ordinary course of nature and
also looking to the various other circumstances like that the
accused as well as the deceased are close relatives and the
deceased was person of criminal background and the incident
started because of the abuses made first by the deceased himself,
Signed by: MADHUwe find that the case will not fall within the purview of section
SOODAN PRASAD300, Indian Penal Code but it will fall 7under section 304 Part II,
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6 CRA-948-2017
culpable homicide not amounting to murder.
11. Consequently, appeal is partly allowed. Conviction of
appellants under section 302/34 Indian Penal Code, is set aside
and instead they are convicted under section 304 part II, Indian
Penal Code, .........."
15. In the case of Ankush Shivaji Gaikwad v. State of Maharashtra
reported in (2013) 6 SCC 770 , the Supreme Court of India has held as
under:-
"10. On behalf of the appellant it was contended that the
appellant's case fell within Exception 4 to Section 300 IPC which
reads as under:
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.
11. It was argued that the incident in question took place on a
sudden fight without any premeditation and the act of the
appellant hitting the deceased was committed in the heat of
passion upon a sudden quarrel without the appellant having taken
undue advantage or acting in a cruel or unusual
manner. There is, in our opinion, considerable merit in that
contention. We say so for three distinct reasons:
11.1. Firstly, because even according to the prosecution version,
there was no premeditation in the commission of the crime. There
is not even a suggestion that the appellant had any enmity or
motive to commit any offence against the deceased, leave alone a
serious offence like murder. The prosecution case, as seen earlier,
is that the deceased and his wife were guarding their jaggery crop
in their field at around 10 p.m. when their dog started barking at
the appellant and his two companions who were walking along a
mud path by the side of the field nearby. It was the barking of the
dog that provoked the appellant to beat the dog with the rod that
he was carrying apparently to protect himself against being
harmed by any stray dog or animal. The deceased took objection
to the beating of the dog without in the least anticipating that the
same would escalate into a serious incident in the heat of the
moment. The exchange of hot words in the quarrel over the
barking of the dog led to a sudden fight which in turn culminated
in the deceased being hit with the rod unfortunately on a vital part
like the head.
11.2. Secondly, because the weapon used was not lethal nor was
Signed by: MADHUthe deceased given a second blow once he had collapsed to the
7 CRA-948-2017
ground. The prosecution case is that no sooner the deceased fell to
the ground on account of the blow on the head, the appellant and
his companions took to their heels a circumstance that shows that
the appellant had not acted in an unusual or cruel manner in the
prevailing situation so as to deprive him of the benefit of
Exception 4.
11.3. Thirdly, because during the exchange of hot words between
the deceased and the appellant all that was said by the appellant
was that if the deceased did not keep quiet even he would be
beaten like a dog. The use of these words also clearly shows that
the intention of the appellant and his companions was at best to
belabour him and not to kill him as such. The cumulative effect of
all these circumstances, in our opinion, should entitle the appellant
to the benefit of Exception 4 to Section 300 IPC."
1 6 . The Hon'ble Supreme Court in the case of Arjun & Another v. The
State of Chhattisgarh reported in AIR 2017 SC 1150 held as under: -
"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 4been 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
Signed by: MADHUkilled. To bring a case within Exception 4 all the ingredients
SOODAN PRASADmentioned in it must be found. It is to be noted that the 'fight'
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8 CRA-948-2017
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'."
17. In Sikandar Ali v. State of Maharashtra, AIR 2017 SC 2614 , the Court
altered the conviction under Section 302 IPC to one under Section 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
SOODAN PRASADsentence of seven years and that A-2 to A-4 have undergone four
9 CRA-948-2017
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."
18. In the case of Premchand v. The State of Maharashtra (Criminal Appeal No. 211 of
2023 ) reported in 2023 (2) S.C.R. 119, the apex court has recently held, as under :-
"24. Exception 4 to section 300, IPC ordains that 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 having taken undue advantage or acted in a
cruel or unusual manner. The explanation thereto clarifies that it is
immaterial in such cases which party offers the provocation or
commits the first assault. Four requirements must be satisfied to
invoke this exception, viz. (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 or unusual manner.
25. Taking an overall view of the matter, we are inclined to the
opinion that the appellant was entitled to the benefit of Exception
4 to section 300, IPC."
19. The Apex Court in the case of Camilo Vaz vs. State of Goa, (2000) 9
SCC 1 while discussing the nature of offence under Sections 302 and 304 of
IPC has observed that ".....If analysed, the section provides for two kinds of
punishment to two different situations: (1) if the act by which death is caused
is done with the intention of causing death or causing such bodily injury as is
likely to cause death. Here the important ingredient is the "intention"; (2) if
the act is done with the knowledge that it is likely to cause death but without
any intention to cause death or such bodily injury as is likely to cause death.
When a person hits another with a danda on a vital part of the body with such
force that the person hit meets his death, knowledge has to be imputed to the
accused. In that situation the case will fall in Part II of Section 304 IPC as in
Signaturethe
Notpresent
Verified case.... (para 14).
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20. A Coordinate Bench of this Court in the case of Lurchriya @ Nurchiya
s/o Butha vs. State of M.P., 2006(3) M.P.L.J. 366 has held that accused has
assaulted his wife with a stone causing grievous hurt which ultimately
resulted into her death. The conviction and sentence of appellant under
Section 302 of IPC is converted into conviction and sentence under Section
304 Part II of IPC. Similarly, in the case of Kanriya @ Kanwarlal vs. State of
M.P., 2007(3) M.P.L.J. 254 it is held that appellant/accused gave Lathi blows
on non-vital part like legs and hands for causing injuries to the deceased
except one injury on right parietal region, in the circumstances, it is held that
appellant could be attributed knowledge to cause death of the deceased and
act of the appellant would fall within the purview of culpable homicide not
amounting to murder under Section 304 Part II of IPC.
21. In light of law laid in aforesaid cases and keeping in view the evidence
on record as discussed above, the act of appellant/accused squarely falls
within the four-corners of exception 4 of Section 300 of IPC. Accordingly,
this criminal appeal is partly allowed. We hereby confirm all the findings
given by the learned Sessions Judge except the conviction which is hereby
altered to Section 304 Part II of IPC instead of Section 302 of IPC and
accordingly sentence is reduced from life imprisonment to 10 years RI. The
fine amount is maintained as imposed by the trial Court. After undergoing
the aforesaid sentence i.e. 10 years' R.I. with remission and depositing the
fine amount, if not already deposited, he be set free, if not required in any
other case.
Signature22. Record of the trial Court be sent back along with a copy of this
Not Verified
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11 CRA-948-2017
judgment. The copy of this judgment be sent to jail authorities by faster
mode.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
ms/-
