Madhya Pradesh High Court
Ata Ullah vs The State Of Madhya Pradesh on 6 February, 2024
Author: Sujoy Paul
Bench: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
&
SHRI JUSTICE VIVEK JAIN
CRIMINAL APPEAL NO. 2583 OF 2015.
BETWEEN :-
ATA ULLAH S/O NADIR MIYA, AGED
ABOUT 22 YEARS, CASTE MUSALMAN,
R/O NARWAJPAR, P.S. WARASEONI, AT
PRESENT OPARASWADA, DISTRICT
BALAGHAT, M.P.
....APPELLANT
(BY MS. RENU GUPTA - ADVOCATE)
AND
STATE OF MADHYA PRADESH, THROUGH
POLICE STATION PARASWARA TEHSIL
KIRNAPUR, DISTRICT BALAGHAT, M.P.
........RESPONDENT
(BY SHRI A.N. GUPTA- GOVERNMENT ADVOCATE)
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Reserved on : 01/02/2024
Pronounced on : 06/02/2024
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This appeal having been heard and reserved for judgment/order,
coming on for pronouncement this day, Shri Justice Vivek Jain passed
the following:
JUDGMENT
This criminal appeal has been filed under Section 374(2) of the
Code of Criminal Procedure, 1973 challenging the judgment of
conviction and sentence dated 28.08.2015 passed by First Additional
Sessions Judge, Balaghat, in Sessions Trial No. 230/2014 whereby the
appellant has been found guilty for committing offence punishable under
Section 302 of IPC and directed him to undergo Life imprisonment with
fine of Rs.5,000/-, with default stipulation.
2. In short, the case of the prosecution is that the incident occurred on
19.04.2014. On that date the complainant Prakash Tembhare (PW/1) who
runs a provision store was sitting in shop of Jai Chand Patle (PW/2) and
at about 1:00 PM in the afternoon, he heard loud voices of commotion.
Then he and Jai Chand (PW/2) came out on the road then they found that
the present appellant was hitting the deceased Suresh with a piece of
wood. The deceased fell down on the road and was bleeding profusely.
An Ambulance was called on the spot and the deceased was taken to
hospital where doctors declared him dead. The FIR (Ex. P/2) was
registered promptly at 2:35 PM on the same date wherein present
appellant was named as accused.
3. Postmortem of body of the deceased was conducted and in the
postmortem examination it was found that there were 6 injuries on the
deceased out of which 4 were lacerated wounds. There were fractures in
the face and head. The cause of death was shown to be hemorrhagic
shock (loss of blood). After investigation, challan was filed against the
present appellant. The matter was committed by the Magistrate to the
Sessions Court. The appellant pleaded innocence and claimed to be tried.
4. The trial Court recorded evidence of as many as 17 prosecution
witnesses and 4 defence witnesses. After recording the evidence and
hearing the parties, the Court below passed the impugned judgment dated
28.08.2015 and held the appellant guilty for offence under Section 302 of
IPC and sentenced to life imprisonment.
5. Ms. Renu Gupta, learned counsel for appellant while pressing the
case of the appellant submitted that there is no direct evidence in the case
and none of the witnesses have actually seen the present appellant hitting
the deceased by means of piece of wood. It is also submitted that various
witnesses have turned hostile. It is stated that Damesh Patle (PW/3),
Sharda Bai (PW/7), Babulal (PW/9) and Bhanu Kol (PW/15) have turned
hostile. It is argued that the complainant in the case is Prakash Tembhare
(PW/1). As per the deposition of complainant Prakash Tembhare it can be
concluded that on one hand this witness stated that the appellant was
hitting the deceased by a piece of wood and on the other hand he has
stated that the deceased was lying on the road and was bleeding. By
referring to deposition of Jai Chand (PW/2), it is argued that he has also
not seen the appellant hitting the deceased. By referring to deposition of
Dalpat Singh (PW/4), it is stated that he saw the appellant standing near
the badly injured deceased and the same is stated by Mamta (PW/5) so
also Anand (PW/8). Thus, it is argued that the case of the prosecution
stands on weak footings.
6. Alternatively, it is argued on behalf of the appellant that even if
prosecution story is accepted in its entirety even then it has clearly come
on record that there was no animosity between the appellant and
deceased. Both of them were habitual of consuming alcohol. They both
have been found proved to be under the influence of alcohol at the time of
incident also. It was a sudden fight under the influence of alcohol wherein
the appellant is stated to have hit the deceased by means of a piece of
wood which is otherwise not a weapon, hence, there is no intention of the
appellant to cause death of the deceased.
7. It is further submitted that it is duly established from the material
evidence that both i.e. appellant as well as deceased were consuming
alcohol together and were under the influence of alcohol. The fight is
sudden fight in the heat of passion and spur of moment. There was no
premeditation or preparation for the incident. Thus the case would fall
under Section 304 Part-II of IPC and it cannot be said to be a murder in
terms of Section 300 of IPC attracting conviction and sentence under
Section 302 of IPC. It is argued that the appellant had undergone actual
jail sentence for more than 9 years and if the present case is a case under
Part-II, of Section 304 of IPC, then the sentence may be reduced to one
already undergone by the appellant.
8. Sounding a contrary note, the learned counsel for State has
opposed the prayer and urged that factual backdrop of the matter duly
establishes the guilt of the appellant. It is argued that looking to
deposition of Prakash Tembhare (PW/1) and Jaichand (PW/2) the act of
the appellant hitting the deceased with piece of wood on vital part of the
body i.e. head and face is duly established. It is further argued that the
blows given by the appellant to the deceased were fatal. It is also argued
that even the alternative prayer of learned counsel for the appellant
cannot be accepted because the power with which injuries were caused,
so also the number of blows which were 6 in number shows intention of
the appellant. The appellant having given six blows, cannot seek benefit
of being under influence of alcohol and the incident being a sudden fight
under influence of alcohol. Thus no fault can be found in the impugned
judgment, and same may be upheld.
9. We have heard the learned counsel for rival parties and perused the
record.
10. So far as the arguments advanced by learned counsel for appellant
that the complicity of the appellant in the incident is not proved is
concerned, we have perused the evidence adduced on behalf of
prosecution. Prakash Tembhare (PW/1 ) and Jai Chand (PW/2) have
categorically stated that they saw that the appellant was hitting the
deceased. There is nothing in their cross-examination which may
demolish the case of the prosecution. The witness Dalpat Singh (PW/4)
has also stated that deceased was lying unconscious on the road and
appellant was standing at his side and was uttering that he has hit the
deceased. Same has been stated by Mamta (PW/5). Mohanlal (PW/7) has
also deposed to this effect. Anand (PW/8) has also deposed that the
appellant was standing at the side of the deceased who was lying
unconscious with injuries and the appellant told this witness that he has
hit the deceased.
11. Looking to the deposition of the prosecution witnesses, the case of
the prosecution seems to have been duly proved that the appellant has hit
the deceased repeatedly by means of a piece of wood which has caused
fatal injuries to the deceased. Thus, the involvement of the accused in the
incident is duly proved and the finding of the court below to that extent
are hereby affirmed.
12. Now taking up the alternative plea raised by the learned counsel for
the appellant, that the fight took place in heat of passion and spur of
moment as a result of sudden fight between the appellant and deceased,
that there was no premeditation nor preparation and there is no previous
enmity between the parties, and that he has not taken undue advantage.
The appellant and deceased both were under the influence of alcohol. It is
not a case of culpable homicide amounting to murder. Rather, it may be
treated to be a case of culpable homicide not amounting to murder in
terms of Part II of 304 of IPC.
12. The said prayer was opposed by the learned counsel for the State
on the ground that appellant had given 6 blows to the deceased and thus,
his intention is clear and the case is a clear case of culpable homicide
amounting to murder.
13. Upon perusing the record of trial court, it is seen that Jaichand
(PW/2) in para 3 of his deposition has admitted that on the date and time
of incident the accused as well as the deceased both were under influence
of alcohol. Anand @ Anup (PW/8) in para 2 of his deposition has
admitted the fact that the appellant as well as the deceased both were
under the influence of alcohol. This witness has accompanied the
deceased in ambulance to the hospital and he has admitted in his
deposition that the deceased was under influence of alcohol and smell of
alcohol was coming from him when he was lying in the Ambulance. The
accused-appellant in his statement in term of Section 313 of Cr.P.C. has
taken a plea that the has been framed falsely in the case and also that he
was under influence of alcohol.
14. The weapon used in the present case is a piece of wood and seizure
memo (Ex. P/7) indicates that 3 different pieces of wood were seized
from the spot which were 2 feet and 10 cm., 1ft. and 1 cm. and 2ft. long
respectively. The width of the pieces of wood was 10 to 12 cm. Three
pieces were found to be part of the same piece of wood and it was
concluded that it was a piece of wood around 4ft and 8 inches long and
10 to 12 cms in width. Such pieces of wood can be easily found in
country side and it cannot be said to be a weapon which a person would
be armed with if he comes with a intention to cause death or fatal bodily
injuries to a person.
15. Even the trial court in paragraph 33 of the judgment has given
categorical finding that the accused and deceased have were heavily
under the influence of alcohol and this influence of alcohol seems to have
caused some altercation between the two which thereafter escalated into a
fight and and accused seems to have hit the deceased on his face and head
repeatedly with piece of wood which led to multiple injuries on the face
and head of the deceased causing his death.
16. Thus, the question before us is whether in the facts and
circumstances of the case, the offence so committed by the appellant falls
within the ambit of Section 304 Part-II of IPC or not ?
It is relevant to quote the said provision which is as under:-
"304. Punishment for culpable homicide not amounting to
murder- Whoever commits culpable homicide not amounting to
murder shall be punished with imprisonment for life, or
imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine, if the act by which the
death is caused is done with the intention of causing death, or of
causing such bodily injury as is likely to cause death;
Or with imprisonment of either description for a term which may
extend to ten years, or with fine, or with both, if the act is done with
the knowledge that it is likely to cause death, but without any
intention to cause death, or to cause such bodily injury as is likely
to cause death."
(Emphasis Supplied)
17. To invoke the provisions of exception IV to Section 300, the
essential requirements are
(i) It must be a sudden fight.
(ii) There should be no premeditation.
(iii) The act must be done in heat of passion.
(iv) The assailant should not have taken any undue advantage or acted
in a cruel manner.
18. Admittedly, in the present case, the material on record clearly
shows that there is no premeditation on part of the accused and the act
committed by him was in heat of passion and without any premeditation.
The material evidence on record as discussed above, clearly depicts that
the unfortunate offence undoubtedly had taken place on the spur of
moment without premeditation and it cannot be said that the accused had
an intention to kill the deceased. The mitigating circumstance is also to be
taken into account that the accused was under the influence of alcohol
and there was some altercation between the two which easily escalated in
a fight because both were under influence of alcohol.
19. Interestingly, the similar question cropped up before the Supreme
Court in the case of 1995 SCC (Cri) 165 (Joseph v. State of Kerala),
AIR 2016 SC 2292, three lathi blows were given by the appellant therein.
The Apex Court in para 3 opined as under:-
"3.In this appeal the learned counsel for the
appellant submits that the intention to cause the
injury which was found sufficient to cause the death
in the ordinary course of the nature was not
established. In support of this submission he relied
on the circumstances namely that the whole incident
took place because of a trivial incident which
resulted in a quarrel and that the weapon used was
only a lathi and in the circumstances it cannot be
said that the accused intended to cause the death by
inflicting that particular injury which objectively
was proved by the medical evidence to be sufficient
in the ordinary course of nature to cause death. In
other words he submits that clause 3rdly of Section
300 IPC is not attracted in this case. We find
considerable force in the submission. The weapon
used is not a deadly weapon as rightly contended by
the learned counsel. The whole occurrence was a
result of a trivial incident and in those
circumstances the accused dealt two blows on the
head with a lathi, therefore, it cannot be stated that
he intended to cause the injury which is sufficient
(sic). At the most it can be said that by inflicting
such injuries he had knowledge that he was likely to
cause the death. In which case the offence
committed by him would be culpable homicide not
amounting to murder. We accordingly set aside the
conviction of the appellant under Section 302 IPC
and the sentence of imprisonment for life awarded
thereunder. Instead we convict the appellant under
Section 304 Part II IPC and sentence him to five
years' R.I. "
20. Pertinently, the judgment of Joseph (supra) was referred by the
Apex Court in the case of Jugatram Vs. State of Chhattisgarh, (2020) 9
SCC 520. In the case of Joseph (supra) the conviction was altered to
Section 304 Part II of IPC. Similarly, in the case of Jugatram (Supra)
conviction is altered in the same manner.
21. The Apex Court laid down the litmus test for determination of nature
of offence in (2006) 11 SCC 444 (Pulicherla Nagaraju @ Nagaraja
Reddu Vs. State of A.P.). In the facts and circumstances of a particular
case, the Court needs to decide the pivotal question of existence of
intention with care and caution. The following factors needs to be
examined:-
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was
picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or
sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there
was any premeditation;
(vii) whether there was any prior enmity or whether the
deceased was a stranger;
(viii) whether there was any grave and sudden provocation,
and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue
advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows.
22. In the instant case, it is not shown by the prosecution that the
appellant had brought the piece of wood from his home with an intention
of assaulting the deceased. Rather it is clearly established from material
evidence on record that it was a sudden quarrel when both the persons
were under influence of alcohol and the weapon used in the present case
is a commonly found piece of wood. There was a quarrel under the
influence of alcohol, the appellant picked up the piece of wood and gave
repeated blows to the deceased because of which he succumbed to the
injuries. In this backdrop, we are of the considered opinion that appellant
at best, had knowledge that such blows may cause death but had no
intention to cause death.
23. The aspect of giving repeated blows to the deceased has been
raised by learned counsel for State. A three Judge Bench of Hon'ble
Supreme Court in the case of Atul Thakur Vs. State of Himachal
Pradesh & others 2018 (2) SCC 496 had the occasion to consider the
case involving identical facts. In the said case also there was sudden
altercation and quarrel between two persons and the accused gave
repeated 6 blows of knife to the deceased under influence of alcohol. In
the said case also the fight was sudden without any premeditation or
preparation. In the said case Hon'ble Supreme Court has held the case
can at best be covered under Section 304 Part II of IPC and cannot be
said to be a case in terms of Section 302 of IPC. Following has been held
therein.
8. Notably, the evidence on record plainly
establishes that a sudden fight took place between
the appellant and Hitesh Thakur and in the heat of
passion, the appellant assaulted Hitesh Thakur
causing serious bodily injuries. There is no shred of
evidence, much less even a remote suggestion that
the appellant had assaulted Hitesh Thakur with an
intention to cause his death. Though the High Court
found the appellant guilty, it has not held that the
bodily injuries caused by the appellant were with an
intention to cause the death of Hitesh Thakur. The
High Court overturned the finding recorded by the
trial court regarding the nature of offence,
principally on the ground that the appellant gave
repeated knife-blows to Hitesh Thakur and Hitesh
Thakur could not defend himself as he was
unarmed. Thus, the appellant was found guilty of
offence punishable under Section 302 IPC.
9. In other words, the controversy in these appeals
boils down to the nature of offence and the sentence
to be awarded in that behalf. As aforesaid, the
evidence on record, as held by the two courts below
and with which finding we are in full agreement, is
that the appellant gave six knife-blows to Hitesh
Thakur on the fateful night to which he succumbed.
Thus, it is a case of homicidal death. However, there
is no evidence that the injuries inflicted by the
appellant were with an intention to cause the
murder of Hitesh Thakur. On the other hand, the
evidence clearly establishes that the appellant
assaulted Hitesh Thakur without any premeditation.
The whole incident took place suddenly and, in the
heat of passion a sudden quarrel started as Hitesh
Thakur, while smoking, blew smoke on the face of
the appellant. Resultantly, the appellant got
enraged. He told him that he was senior in age and
thus should not smoke in his presence much less
blow the smoke towards him. Then a sudden
physical fight started between them, in which the
appellant, in heat of passion, gave six knife-blows to
Hitesh Thakur on different parts of his body.
xx xx xx
12. Taking overall view of the matter, the facts of the
present case warrant invocation of Exception 4 to
Section 300 IPC. For, it is a case of culpable
homicide not amounting to murder inasmuch as the
incident happened on account of sudden fight
between the friends who had gathered for a drink
party arranged at the behest of Hitesh Thakur.
There was no premeditation and the act done by the
appellant was in the heat of passion without the
appellant taking any undue advantage or acted in a
cruel manner. The number of wounds caused by the
appellant, it is a well-established position, by itself
cannot be a decisive factor. The High Court
committed manifest error in being influenced by the
said fact. What is relevant is that the occurrence
was sudden and not premeditated and the offender
acted in the heat of passion. The evidence supports
the case of the appellant in this behalf. The fact that
the appellant used weapon such as knife, is also not
a decisive factor to attract Section 302 IPC. Neither
the use of a knife in the commission of offence nor
the factum of multiple injuries given by the
appellant would deny the appellant of the benefit of
Exception 4.
13. Dealing with a somewhat similar situation,
in Surain Singh v. State of Punjab [Surain
Singh v. State of Punjab, (2017) 5 SCC 796 : (2017)
3 SCC (Cri) 461] , this Court has restated the
settled legal position about the purport of Exception
4 to Section 300 IPC. Even in that case, the accused
had repeatedly assaulted the deceased with a kirpan
and caused injuries resulting into death. After
restating the legal position, the Court converted the
offence to one under Section 304 Part II instead of
Section 302 IPC. Following the same legal
principle and keeping in mind the factual position
as unfolded, the view taken by the trial court of
convicting the appellant for the offence punishable
under Section 304 Part II, is unexceptionable.
24. Thus, we are of the considered opinion that the overall
circumstances of the case do not make out a case of culpable homicide
amounting to murder so as to attract punishment in terms of Section 302
of IPC.
25. Accordingly, we find substance in the argument of learned counsel
for appellant that conviction deserves to be altered to Section 304 Part-II
of IPC. The appellant has undergone actual jail sentence of 9 years and 9
months, as against the maximum sentence of 10 years under Section 304
Part-II of IPC. This incident is of the year 2014. Thus the sentence of the
appellant is converted to the period already undergone by him. He
deserves to be released.
26. Resultantly, the impugned judgment dated 28.08.2015 passed in
S.T. No. 230/2014 is altered to the extent appellant was held guilty under
Section 302 of IPC. Instead, appellant shall be treated to be convicted
under Section 304 Part-II of IPC and the sentence shall be treated to be
the one already undergone by him. If presence of appellant in custody is
not required in any other matter, he be released forthwith.
27. The appeal is partly allowed to the extent indicated above.
(SUJOY PAUL) (VIVEK JAIN)
JUDGE JUDGE
MISHRA
ARVIND KUMAR MISHRA
2024.02.06 17:18:46 +05'30'
