Madhya Pradesh High Court
Laxman Kunbi vs The State Of Madhya Pradesh on 8 August, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
1 CRA-2425-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 8 th OF AUGUST, 2024
CRIMINAL APPEAL No. 2425 of 2015
LAXMAN KUNBI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Pushpendra Dubey, learned counsel for the appellant.
Shri Arvind Singh, Government Advocate for the respondent/State.
ORDER
Per: Justice Vivek Agarwal
This appeal is coming up for hearing as the matter is taken up at the request
of learned counsel for the appellant. With the consent of the parties, matter is
heard finally.
2. Learned counsel for the appellant submits that he would not press this appeal
on merits of the case and is only seeking conversion of conviction under section
302 of IPC to one under section 304 Part-II of IPC and declare the period of
sentence to be already undergone by the appellant. It is submitted that appellant is
in custody since 31.5.2012 i.e. he has put in 12 years of actual incarceration.
3 It is submitted that prosecution story, in brief, is that deceased is Panchu Bai.
The deceased is wife of appellant-Laxman Kunbi s/o Ramu Kunbi. It has come on
record that on 28.5.2012 at about 12.30 am deceased-Panchu Bai was admitted to
Padhar Hospital, District Betul in a burnt condition. Report (Exhibit-P/13) was
made to the Police Chowki, Padar, on the basis of which A.S.I. (PW.13) had
approached the Hospital and recorded Dehati Nalshi (Exhibit-P/13). In Dehati
Nalshi (Exhibit-P/13) injured-Panchu Bai narrated that her marriage had taken
place in the year 2003. This marriage was performed as per the traditions and
customs of their community. From their marriage they have a son called Vicky,
who was aged about 07 years. After two years of marriage the appellant after
2 CRA-2425-2015
consuming alcohol use to beat the complainant and use to demand money
including motorcycle.
4. On 27.5.2012, when the appellant returned from work then he demanded
money for consuming alcohol and when deceased replied that she did not have
money for that purpose then he hit on her head with a 'lota'. Thereafter he had
poured kerosene oil on her body and lit a match stick, as a result of which she
sustained burn injuries. She approached Bhaiyalal Kunbi in that condition who
had put cloth ('kathari') and doused the fire. Thereafter she was taken to Hospital
by her brother-Pintu and uncle-Budhrao. This incident was seen by her 07 years'
old son-Vicky.
5. It is submitted that the incident had taken place at the spur of moment without
there being any premeditation and the deceased died after a month of incident i.e.
on 03.7.2012. If she would have been properly treated she would have survived.
Since the appellant has already undergone incarceration for 12 years, the offence
under section 302 IPC be converted into one under Section 304 Part-II of IPC. It
is submitted that his only child is living a life of an orphan and he needs his
guidance and care.
5. Reliance is placed on decision of Coordinate Benches in Criminal Appeal
3327/2013 [(Shyamrao Vs. State of M.P.) decided on 14.6.2023] and Criminal
Appeal No.831/1996 [(Prakash Kumar Mewari Vs. State of M.P.) decided on
14.11.2022] to support his contention.
6. It is pointed out that Coordinate Division Benches have taken into
consideration the decision of Hon'ble Supreme Court in Kalu Ram Vs. State of
Rajasthan, (2000) 10 SCC 324 wherein the Supreme Court altered the conviction
from section 302 of IPC to Section 304 Part-II of IPC and also decision of this
Court in Criminal Appeal No.534/2011 [(Sanju Tiwari Vs. State of M.P.) decided
on 27.4.2021] following ratio decidendi of judgment of Kalu Ram (supra) and
came to hold that in case of this nature where husband doused his wife with
kerosene oil and set her ablaze without there being any premeditation the offence
committed by accused would be culpable homicide not amounting to murder.
7. Shri Arvind Singh, learned Government Advocate opposes the prayer and
submits that such kind of gruesome murder cannot be converted and it will not
come under Exception 4 to Section 300 of IPC.
8. Heard learned counsel for the parties and gone through the record.
9. Supreme Court in the case of Sayaji Hanmant Bankar Vs. State of
Maharashtra, (2011) 14 SCC 477 has held as under:-
3 CRA-2425-2015
"7. Exception 4 to Section 300 IPC 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."
10. Similarly, Supreme Court in K.Ravi Kumar Vs. State of Karnataka , (2015)
2 SCC 638 has opined as under:-
"11. In Surinder Kumar V. UT, Chandigarh (1989) 2
SCC 217 this Court on the same issue held that if on a
sudden quarrel a person in the heat of the moment picks
up a weapon which is handy and causes injuries out of
which only one proves fatal, he would be entitled to the
benefit of the Exception provided he has not acted
cruelly."
The ratio of law is that occurrence must have been sudden and unpremeditated
and the offender must have acted in a fit of anger.
11. In Ghapoo Yadav Vs. State of M.P. , (2003) 3 SCC 528 the Supreme Court
held that in a heat of passion there must be no time for the passion to cool down
and that the parties had in that case before the Court worked themselves in to a
fury on account of the verbal altercation in the beginning. Apart from the incident
being the result of a sudden quarrel without premeditation, the law requires that
offender should not have taken undue advantage or acted in a cruel or unusual
manner to be able to claim the benefit of Exception 4 to Section 300 IPC.
Whether or not the fight was sudden, was declared by the Court to be decided in
the facts and circumstances of each case. In paragraph 11 of this judgment it has
been held as under:-
"11. ......... It is not the case of the prosecution that the
appellant-accused had come prepared and armed for
attacking the deceased..... This goes to show that in the heat
of passion upon a sudden quarrel followed by a fight the
accused persons had caused injuries on the deceased, but
had not acted in a cruel or unusual manner. That being so,
4 CRA-2425-2015
Exception 4 to Section 300 IPC is clearly applicable."
12. When all these aspects are taken into consideration alongwith the judgment
of the Coordinate Benches in the cases of Shyamrao (supra) and Prakash Mewari
(supra) we are persuaded to record a finding that since quarrel erupted all of a
sudden and there was no premeditation, the appellant is entitled to benefit of
Exception 4 of Section 300 of IPC. His conviction is maintained and it is
converted from section 302 of IPC to 304 Part-I IPC. Since appellant has put in
12 years of incarceration, looking to the facts and circumstances of the case, and
the needs of the child his sentence is declared as undergone. He be released
forthwith if his custody is not required in any other case.
13. In the result, the appeal is accordingly, disposed of.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
RM
