Madhya Pradesh High Court
Dakariya vs The State Of Madhya Pradesh on 19 February, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 19th OF FEBRUARY, 2024
CRIMINAL APPEAL No. 1383 of 2015
BETWEEN:-
DAKARIYA S/O HAMJA, AGED ABOUT 20
YEARS, OCCUPATION: LABOUR GRAM
DONGARGAON, UPRI FALYA, THANA
SILAWAD, DISTT. BARWANI (MADHYA
PRADESH)
.....APPELLANT
(SHRI SANTOSH KUMAR MEENA -ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THRU. P.S.
SILAWAD, DISTT. BARWANI (MADHYA
PRADESH)
.....RESPONDENT
(SHRI K. K. TIWARI - GOVT. ADVOCATE ).
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This appeal coming on for judgment this day, Justice Devnarayan
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Mishra passed the following:
JUDGMENT
With the consent of parties, heard finally instead of hearing on
application for suspension of jail sentence.
1. This criminal appeal under Section 374 of the Cr.P.C has been
preferred by accused/appellant being aggrieved with the judgment and
sentence passed by Sessions Judge, Barwani in ST. No.116/2014 dated
14.09.2015 whereby the appellant has been convicted under Section
302 of IPC and sentenced to undergo Life Imprisonment with fine of
Rs.200/- with default stipulations.
2. The prosecution story in nutshell is that on 30.07.2014 at about
6:00 pm the Dedla and Hamza both after consuming the alochol in
front of complainant home Hamza started abusing to Dedla. Dedla
objected and said to Hamza not to abuse when Hamza didn't stopped
abusing Dedla hit the Hamza with iron rod (saang/sabbal) looking to
this the appellant Dakriya came there and asked Hamza why he has
assualted his father and snatching the iron saang/sabbal assualted the
deceased with the iron rod (saang/sabbal) on the head of the Dedla
and as a result he died on the spot. Wife of the complainant was
present there the complainant Khumsingh told the incident to Gathiya
(PW-5) and Balu (PW-6) and with Patel Dub Singh (PW-9) reached
the Police Station Silawad and lodged an FIR. The Police Silawad
registered crime No.110/2014 under Section 302 against the appellant.
Spot map Ex.P-13, inquest report Ex.P-14 was prepared. The dead
body of the deceased was sent for postmortem wherein the doctor
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conducted the postmortem and submitted report Ex.P-16. The
appellant was arrested on 21.07.2014 and from his disclosure the iron
saang was recovered on 21.07.2014. The clothes of the deceased,
blood stained soil with plain soil of the spot and the iron sang was sent
for FSL. After usual investigation charge-sheet was filed before the
CJM, Badwani. After the committal the case was submitted for trial
before the Sessions Judge.
3. The Sessions Judge, Barwani framed the charges under Section
302 of IPC and after examination of the prosecution witnesses
examined the appellant under Section 313 of the Cr.P.C. After framing
of the charges the appellant denied the allegation and abjured the guilt
and prayed for trial. After examination of the witnesses the appellant
was exmained in that examination, he is innocent and falsely been
implicated.
4. After hearing the parties the trial Court has convicted the
appellant and sentenced as stated in para 01 of the judgment.
5. Shri S.K Meena, learned counsel for the appellant has submitted
that in this case the trial Court has not appreciated the fact that the
Dedla has assualted appellant's father Hamza with saang as a result the
appellant's father died. There was no previous incident or animosity
between the parties and incident had occurred as the deceased had hit
the appellant's father on head and the act of the appellant does not fall
in the purview of Section 302 of IPC but the trial Court has convicted
the appellant under Section 302 which is against the fact and law.
6. Learned counsel for the appellant has submitted that this case
falls under the category of Section 304 in support of his argument he
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has relied on the judgment of this Court passed in criminal appeal No.
3783/2018 Ambaram vs. State of Madhya Pradesh, passed on
04.01.2024, Shahajan Ali vs. State of Maharashtra AIR 2017 SC
2614, Gurpal Singh vs. State of Punjab AIR 2017 SC 471,
Prabhakar Vithal Gholve vs. State of Maharashtra AIR 2016 SC
2292.
7. Shri K.K Tiwari, learned Govt. Advocate for the
respondent/State has argued that the trial Court has appreciated the
evidence and has elaborately discussed the evidence and passed the
judgment. The conviction and sentence is as per law no interference is
called for hence, the appeal be dismissed.
Heard both the parties and perused the record.
8. Now, the question arises before the Court is that whether the
conviction and sentence of the appellant maybe upheld?
9. As per the FIR and fact stated by the trial Court in its judgment,
on 30.07.2014 at about 6:00 pm the appellant with intention to cause
death of the deceased Dedla hit him with an iron rod (sabbal/saang).
10. Medical Officer Dr. Jogesh Achale (PW-6) has stated that on
21.07.2014 he was posted in Community Health Centre, Silawad. The
dead body of the Dedla was brought for postmortem. He started the
postmortem examination at 11:30 pm, on external examination he
found that there was a lacerated wound below the left eye 1.5 x 1.5
inch, another lacerated wound in occipital region of the head 3 x 0.5
inch. When the body was opened he found that on the above injuries
the bones were fractured and sub-dural hematoma was present and
deceased died due to these injuries as on vital parts of the body as
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explained in the postmortem report Ex.P-5. From the inquest report
and statement of witnesses it is clear that the deceased got injury on
head only and he died due to the injuries in the head as the bones were
fractured and sub-dural hematoma was present in the brain.
11. Witness Khumsingh (PW-1) who lodged the FIR Ex.P-12 has
stated that at about 6:00 pm he with his wife (PW-2) was present at
their home, deceased Dedla was his younger brother and Hamza was
his uncle. Dedla and Hamza after consuming liquor started quarreling
and in front of his home, Dedla assualted Hamza with iron
saang/sabbal on seeing that appellant Dakriya son of Hamza came and
asked Dedla why he has assualted his father and snatched the iron
saang/sabbal from Dedla and by that iron saang/sabbal hit Dedla, he
fell down and died at the incident. He further stated that he lodged an
FIR in the Police Station.
12. The witness Rewabai (PW-2) has supported the witness
Khumsingh (PW-1) and clearly stated that Dedla assualted Hamza on
that the appellant reached and snatched the iron saang/sabbal from
Dedla and hit him on the head with that saang/sabbal and Dedla died
on the spot. In cross-examination of these witnesses nothing has been
brought on record by which these witnesses can be disbelieved.
13. The witness Kumari Bayaa (PW-3) has supported these
witnesses but from the cross-examination it is clear that what she has
stated before the Court is on the advice of his father but by that the
prosecution case is not affected.
14. Anokhsingh Sindiya (PW-10) has stated that on 30.07.2014
when he was posted as Sub-Inspector in P.S Silawad, complainant
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Khumsingh (PW-1) lodged an FIR (Ex.P-12) against the accused on
the ground that the appellant hit Dedla by iron saang/sabbal as a result
Dedla died on the spot, on that he lodged an FIR. On this fact this
witness is supported by Ashok Khedkar (PW-8).
15. Thus, the statement of the prosecution witness Khumsingh
(PW-1) and Rewabai (PW-2) are supported by FIR Ex.P-12 that was
registered on 30.07.2014 within five hours of the incident. In the FIR
it is mentioned that on spot Khumsingh (PW-1) and Rewabai (PW-2)
were present. Thus, it is clear that appellant on the date of incident
Dedla and Hamza after consuming liquor were quarreling and Dedla
hit Hamza with iron saang/sabbal on that appellant son of Hamza
came there and assualted the deceased Dedla with iron saang/sabbal
that was used by deceased to assualt his father.
16. In cross-examination of the prosecution and facts brought on the
record, there is no probability that the appellant has been falsely
implicated in the present case. Deceased Dedla was brother of the
complainant and Hamza was the brother of Khumsingh's Father thus,
both are related to each other. Also, it is not been brought on record
that there was any previous enmity between the parties.
17. It is also admitted by Khumsingh (PW-1) that deceased Dedla
hit Hamza with iron saang/sabbal and Hamza has expired due to that
assualt. Furthermore, Ashok Khedkar (PW-8) has admitted in his
cross-examination that on the date of incident 30.07.2014 another
crime No.111/14 was registered and that FIR was lodged by Nankibai.
18. The witness Anokh Sindiya (PW-10) has also admitted in para
12 of his cross-examination that on the date of incident he registered
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an FIR as crime No.110/14 and 111/14 and further stated that when he
went on the spot the wife of deceased Hamza lodged an FIR that was
written as Dehati Nalsi and on that basis crime No.111/14 was
registered and in that Nankibai has informed that Dedla has committed
the murder of her husband by hitting with iron saang/sabbal. In para
14 he has further stated that it is true to say that the same iron
saang/sabbal was used in the murder of Dedla and Hamza.
19. Thus, it is clear that on the date of incident two persons died.
Hamza died due to assualt by deceased Dedla and when the appellant
saw that his father has been assualted then he assualted the Dedla by
the same iron saang/sabbal and as a result the deceased died.
20. Therefore, it is clear that there was no previous enmity between
the parties, there was no premeditation or any reason to assualt the
deceased Dedla and the incident has suddenly taken place, when Dedla
and Hamza after consuming liquor started quarreling and in that
quarrel Dedla hit Hamza and seeing this incident appellant reached on
the spot and snatched the iron saang/sabbal from Dedla and hit Dedla
with the same iron saang/sabbal.
21. So, it is clear that the incident took place suddenly and from the
injuries reported and statement recorded of witnesses it is evident that
the appellant has assualted the deceased on head and no other injury
was found on any other body parts. The doctor has stated in
postmortem report that no further injuries were found and the
prosecution witness has also not stated that the accused repeatedly
assualted the deceased with iron saang/sabbal.
22. In the case of Shahajahan Ali vs. Maharasthra (supra) the
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Apex Court found in the circumstances that:-
"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 of 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 of 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."
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23. In the case of Prabhakar Vithal Gholve v. State of
Maharashtra (supra) the Apex Court has held that:-
"7. In the facts and circumstances noted above,
there appears merits in the submission advanced by
learned counsel for the appellant is that in view
Exception 4 in Section 300 of the IPC the case made
out against the appellant is that of culpable homicide
not amounting to murder. It would be natural for the
family members of juvenile offender Balu on hearing
his cries, to rush for his help and when injury on the
appellant has also been proved there is sufficient
material to infer the reasonable possibility of grave
and sudden provocation. The assualt on the deceased,
in adsence of intention to cause death could be on
account of sudden fight without pre-meditation, in the
heat of passion and upon a sudden quarrel. We
therefore feel persuaded to and do set aside the
conviction of the appellant under Section 302 IPC
and substitute the same with conviction under Section
304 Part I of the IPC."
24. Thus, from the above citations it is clear that the accused
assualted the deceased with the iron saang/sabbal and the force
applied on the weapon was of such nature that is caused fracture in
the head as a result the deceased died. Therefore, the act of the
accused comes in the purview of definition clause of culpable
homicide under Section 299 of the IPC but the conduct of the
appellant comes under the Exception 4 of Section 300 of the IPC,
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which is reproduced below:-
"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 having
taken undue advantage or acted in a cruel or
unusual manner.
Explanation- It is immaterial in such cases
which party offers the provocation or commits
the first assualt."
25. Thus, the conviction of the appellant under Section 302 is
substituted with Section 304 Part-I of the IPC.
26. In view of the above discussion and the verdict of the Apex
Court we confirm all the findings given by the leared Sessions
Judge except the conviction which is hereby altered to Section 304
Part-I of the IPC instead of Section 302 of the IPC. Accordingly,
the sentence is reduced from Life Imprisonment to 10 years R.I,
the fine amount imposed by the trial Court is maintained. The
appellant be set free after depositing the fine amount and on
completion of 10 years of R.I, if not required in any other case.
27. The order of the trial Court regarding case property is
confirmed.
28. With the aforesaid, this appeal is partly allowed to the
extent indicated above.
29. A copy of this judgment be sent to the concerned Jail
Authorities for information and necessary action. Record of the
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trial Court be sent back with the copy of this judgment for
information and necessary action.
30. Accordingly, this criminal appeal is disposed off.
C.C as per Rules.
(S. A. DHARMADHIKARI) (DEVNARAYAN MISHRA)
JUDGE JUDGE
akanksha
