Madhya Pradesh High Court
Dinesh @ Kokari @ Kailash vs The State Of Madhya Pradesh on 15 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
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
ON 15TH OF FEBRUARY, 2024
CRIMINAL APPEAL No. 649 of 2018
BETWEEN:-
DINESH @ KOKARI @ KAILASH S/O
RAMESHCHANDRA, AGED 31 YEARS,
OCCUPATION LABOURER, R/O BHAMI
MOHALLA, AMJHERA, DISTRICT DHAR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI T.C. JAIN - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION - CHANDAN
NAGAR DISTRICT INDORE (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI SUDHANSHU VYAS - GOVERNMENT ADVOCATE)
This appeal coming on for final hearing this day, JUSTICE
ANIL VERMA passed the following:
JUDGMENT
Although this appeal is listed for argument on IA No. 2451/2024
which is third application for suspension of sentence under section
389(1) Cr.P.C. filed by appellant, but with consent of the parties, this
criminal appeal is heard finally.
2. This appeal has been preferred on behalf of appellant under
Section 374 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.')
against the impugned judgment dated 19.1.2010 passed by Third
Additional Sessions Judge Indore District Indore (M.P.) in Sessions
Trial No 36/2008 whereby the appellant has been convicted for the
offence under Sections 302 of the Indian Penal Code, 1860 (in short
'IPC') and has been sentenced to undergo Life Imprisonment with fine
of Rs. 5,000/- with usual default stipulation.
3. The facts of the case in brief are that deceased Anil was
working as cleaner in bus bearing registration No. MP 11-D-1500 which
was run by Chhabra Bus Service. On 11.10.2007 at about 4 a.m. driver
of said vehicle parked the vehicle at Bharat Petrol Pump and driver
Subhash and conductor Narendra went their home and Anil kept remain
in said bus. Thereafter in the intervening night of 11-12 of November
2007 at about 2 am appellant Kailash came nearby the deceased and
started abusing and demanded Rs. 50 for consuming liquor. Deceased
denied giving him money then appellant gave a blow of iron rod on head
of deceased Anil. Anil fell down on the ground. One Narendra took him
hospital, but during treatment deceased has been succumbed. Thereafter
police registered crime against the appellant.
4. Prosecution story in further is that Head Constable Babulal
recorded the statement of deceased Anil under section 161 of Cr.P.C. and
also lodged Dehati Nalishi and on the basis of aforesaid statement, he
lodged an FIR against the appellant. He recovered the blood stained
undershirt of deceased. During investigation he arrested the appellant
and at the instance of appellant recovered iron rod from his possession.
Postmortem of deceased was conducted by Dr. Bharat Prakash (PW-12).
During investigation of body, hyoid bone Nos. 4, 5 and 6 were found
fractured and deceased has been died due to cardio respiratory failure as
a result of injuries sustained by him on spinal canal.
5. After completion of investigation, charge sheet was filed
before the Additional CJM Indore who has committed the case to the
Court of Sessions. Prosecution has examined as many as 17 witnesses
while defence did not examine any witness. The trial Court after
appreciating the evidence available on record, convicted and sentenced
the appellant as mentioned herein above. Hence, the appellant has
preferred this appeal.
6. Appellant has preferred this appeal on certain grounds but
during course of arguments learned counsel for appellant submits that he
is not assailing the findings of the trial court in respect of incident took
place on 12.11.2007, cause of death and culpability of appellant. He is
assailing the conviction only on the ground that there is a case of
culpable homicide not amounting to murder falls under section 300 of
IPC (Exception 4) instead of Section 302 IPC. At the most appellant can
be convicted under section 304 (Part II) IPC because the dispute has
arisen due to sudden provocation and in a heat of passion by deceased.
The appellant was not intending to commit murder of deceased. So far
the offence under section 304 Part II IPC is concerned, the appellant has
already suffered sufficient period of jail incarceration of 14 years and
deposited the fine amount.
7. Per contra, learned counsel for the respondent / State
opposes the prayer by submitting that appellant has given forceful blow
of iron rod on the vital part with intention to kill the deceased, therefore,
appellant has been rightly convicted under section 302 of IPC.
8. We have heard learned counsel for both the parties at length
and perused the entire record of the trial Court with due care.
9. From perusal of the record it appears that Narendra Singh
Chouhan (PW-1), Narayan (PW-2), Lalit (PW-3) Mohd. Arif (PW-4),
Champalal (PW-5), Yogesh (PW-6) and Ramchandra (PW-17) turned
hostile and not supported the case of prosecution. There is no direct
evidence available on record and case is based upon dying declaration of
deceased which was found in the shape of statement under section 161
of Cr.P.C which has been recorded by head constable Babulal (PW-15).
Babulal (PW-15) categorically stated in his statement that he has given
written note (Ex.P-34) to the concerned doctor for recording statement
of victim Anil and the concerned doctor opined that patient is in
conscious condition to give valid statement. He has lodged Dehati
Nalishi (Ex.P-35) and also recorded his statement on 12.11.2007 and on
the basis of aforesaid he has registered FIR (Ex.P-36).
10. Dr. Mahendra Solanki (PW-9) in para 1 of his examination in
chief categorically stated that at the time of admission in the hospital
patient Anil was fully conscious and his examination sheet is Ex.P-24.
He has given primary treatment to him and thereafter referred him for
neuro surgery. Same was also found in the bed head ticket that patient
was recovered from unconsciousness. Although learned counsel for
appellant contended that as per statement of Dr. Rajesh Kumar Gupta
(PW-11) and Dr. Deepak Kulkarni (PW-10) the deceased was in
unconscious position and he was not able to depose anything therefore
his statement cannot be relied upon, but from perusal of the statement of
Dr. Mahendra Solanki (PW-9) and the Bed Head Ticket (Ex.P-24) it is
quite clear that at the time of admission the deceased was in conscious
condition and as per the certificate given by treating doctor he was fit to
depose anything. Accordingly Head Constable Babulal (PW-15)
recorded his statement and lodged dehati nalishi (Ex.P-35). Therefore,
these documents cannot be doubted and later on deceased died during
the treatment, therefore, the dehati nalishi and statement of deceased can
be considered as a dying declaration under purview of section 32 of
Indian Evidence Act. But from the entire evidence it is clear that prior to
incident deceased did not lodge any report against the appellant.
11. All the independent witnesses did not state anything regarding
previous enmity between deceased and appellant, therefore, it appears
that incident was taken place all of a sudden and in heat of passion the
appellant assaulted deceased by means of iron rod. While there was a
sudden quarrel at the time he did not act in a cruel or unusual manner.
There was no preparation or pre-meditation in the mind of appellant to
murder deceased. In heat of passion, out of anger he gave a blow of iron
rod on his head.
12 The Hon'ble Supreme Court has also held in the case of Arjun
and Anr. Vs. The state of Chhattisgarh, AIR 2017 SC 1150 that:
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 been 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 killed. To bring a case
within Exception 4 all the ingredients mentioned in it
must be found. It is to be noted that the 'fight' 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'."
13 In the case of Sikandar Ali Vs. The state of Maharashtra,
AIR 2017 SC 2614, the Court altered the conviction u/s 302 IPC to one
u/s 304 part-II 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."
14 In view of the above discussion and law laid down by the
Apex court in the aforesaid case and the statement given by deceased
and Dehati Nalishi (Ex.P-35) it is a fit case for altering the conviction
under section 302 of the IPC to Section 304 (Part-II) of the IPC. The
conviction and sentence are hereby altered. The sentence of Life
Imprisonment is reduced to the period already undergone by the
appellant.
15 Accordingly, the appeal is partly allowed and it is directed
that the appellant be released from jail if not required in any other case.
16 Record be sent back to the learned trial court with copy of this
order.
(VIVEK RUSIA) (ANIL VERMA)
J U D G E J U D G E
BDJ
BHUNESH
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, ou=HIGH COURT OF
MADHYA PRADESH BENCH INDORE,
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WAR DATT
postalCode=452001, st=Madhya Pradesh,
serialNumber=89FD75A8D0C99E05779A3279
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269, cn=BHUNESHWAR DATT
Date: 2024.02.21 17:49:33 -08'00'
