Madhya Pradesh High Court
Hamir vs The State Of Madhya Pradesh on 1 February, 2024
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
-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 FEBRUARY, 2024
CRIMINAL APPEAL No. 1088 of 2017
BETWEEN:-
HAMIR S/O GOPIYA, AGED ABOUT 31 YEARS, OCCUPATION: LABOUR,
R/O GRAM UDIYAPUR, P.S. MANAWAR, DISRICT DHAR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI VIKARAM SINGH BULE, ADVOCATE.)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THROUGH P.S. MANAWAR, DISTRICT DHAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI KAMAL KUMAR TIWARI, GOVERNMENT ADVOCATE.)
---------------------------------------------------------------------------------------------------------
This appeal coming on for orders this day, Justice Vivek Rusia
passed the following:
JUDGMENT
With the consent of parties, heard finally.
1- The appellant has filed the present appeal being aggrieved by the
judgment of conviction dated 13.04.2017 passed by Additional Sessions
Manawar, District Dhar (M.P.) in Session Trial No.97/2016 whereby the
appellant has been convicted under Section 304 (Part-I) of IPC and
sentenced to undergo Life Imprisonment with fine of Rs.10,000/- with
default stipulation.
The case of the prosecution, in brief, is as follows: -
2- On 29.11.2015, accused Hamir S/o Gopiya Bhilala was abusing
Fatu S/o Raisingh by filthy language on a issue of cutting of bushes.
When the Fatu objected, he gave a blow of stick and caused the injury
on his head by means of stick. This incident was witnessed by Kamal
and Gappu, they tried to intervene but the accused ran away from the
spot. Injured Fatu was taken to the Community Health Center, Manawar
from where the information was sent by the doctor to the police station
Manawar vide Ex.P/14. On the basis of the information given by the
complainant (PW/1) the FIR was registered at crime No.619/2016 under
Section 294, 323 & 506 of IPC Ex.P/1. Shankarsingh (PW/13) reached
to the spot and drew the spot map Ex.P/8. I.O. recorded the statement of
witness Gappu, Kamal, Sukhlal, Nanuram, Shobharam, Chander and
Leelabai under Section 161 of Cr.P.C. The injured was taken to the M.Y.
Hospital and in order to record the dying declaration, an application
Ex.P/12 was written to the doctor and obtained the query report Ex.P/13.
On the basis of the said query report Section 307 of IPC was added. The
deceased was under treatment of Dr. Dinesh Choudhary.
3- During the treatment the relative of Fatu took him to the village
where he died on 06.01.2016 and accordingly Merg No.02/2016 was
registered and Section 302 of IPC was added in the FIR. The dead body
was sent for post-mortem. Ex.P/10 Post-mortem report was given by the
doctor that he died because of the head injury. The Lash Panchayatnama
was prepared, the appellant was arrested and on his disclosure the stick
used for commission of crime was seized, blood stained clothes of
deceased Fatu were recovered and the charge-sheet was filed before the
JMFC. The charges under Section 294, 506 Part-II and 302 were framed
against the appellant, he denied the charges and pleaded for trial.
4- The prosecution examined 13 witnesses who supported the case of
prosecution. The Learned Additional Sessions Judge after appreciating
the evidence came to the conclusion that appellant is liable to be
acquitted under Section 294, 506 Part-II & 302 of IPC. Looking to the
nature of crime instead of convicting him under Section 302 of IPC he
has been convicted under Section 304 Part-I of IPC and sentenced to
undergo Life Imprisonment. Hence, this appeal before this Court.
5- Learned counsel for the appellant submits that he is not assailing
the conviction on merit but according to him the appellant has been
wrongly convicted under Section 304 Part-I of IPC instead of 304 Part-
II. The sentence of L.I. is also on a higher side. Learned counsel further
submits that the Learned Trial Court has held that the appellant did not
cause the injury with an intention to kill, the deceased died after one
month because of the complication and lack of proper treatment. Had he
been not discharged from the hospital he would have been survived.
Therefore, the offence will not travel more than Section 304 Part-II of
IPC and sentence of L.I. is also liable to be reduced to the period already
undergone.
6- Learned Government Advocate for the respondent / State opposes
the aforesaid prayer by submitting that the Court has already taken a
lenient view and convicted him on a lesser section hence, no
interference is liable to be called for, therefore, he has rightly been
convicted under Section 304 Part-I of IPC.
We have heard the learned counsel for the parties at length and
perused the record of the case.
7- It is correct that initially FIR was registered only under Section
323 & 294 of IPC because there was no allegation that this appellant
assaulted the deceased with an intention to kill. The dispute suddenly
occurred on a petty issue of cutting of bushes. The deceased was under
treatment but he was discharged at early stage and died in the house due
to complications. The stick is not a lethal weapon. Even otherwise, at
the time of incident the deceased Fatu was aged 70 years. Therefore, the
conviction under Section 304 Part-I of IPC is not proper, however, same
is liable to be altered to Section 304 Part-II of IPC and sentence is liable
to be reduced to the period already undergone. The appellant is in
custody since 05.12.2015 to till date, he has completed almost more than
8 years in jail sentence, he has no criminal past and at the time of
incident he was 31 years of age hence, as a reformative approach, the
sentence is liable to be reduced to the period already undergone because
the Life Imprisonment is on a higher side looking to the nature and the
circumstances under which the crime was committed.
8- 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:
"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."
9- 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. 2
10- In view of the above discussion and taking support from the above
verdicts of the Apex Court, we hereby confirm all the findings recorded
by the learned Additional Session Judge except the conviction under
section 304 Part-I of I.P.C. which is hereby altered to Section 304 Part-II
of IPC, and accordingly sentence is reduced from Life Imprisonment to
the period already undergone. The appellant is hereby ordered to be set
at liberty forthwith, if he is not required to stay in jail in connection with
any other case.
11- With the aforesaid, this Criminal Appeal is partly allowed to the
extent indicated above. Let the record of the trial Court be sent back
along with a copy of this judgment.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Divyansh
