Madhya Pradesh High Court
Mangla @ Mangilal vs The State Of Madhya Pradesh on 2 May, 2024
Author: Anil Verma
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 02nd OF MAY, 2024
CRIMINAL APPEAL No. 222 of 2013
BETWEEN:-
1 MANGLA @ MANGILAL S/O HIRIYA
MANKAR, AGED ABOUT 40 YEARS,
OCCUPATION: NONE, R/O GRAM JHIRNYA,
THANA THIKRI, DISTRICT BARWANI
(MADHYA PRADESH)
2 KALIBAI W/O HIRIYA MANKAR, AGED
ABOUT 60 YEARS, OCCUPATION: NONE,
R/O GRAM JHIRNYA, THANA THIKRI,
DISTRICT BARWANI (MADHYA PRADESH)
[DIED]
.....APPELLANTS
(BY SMT. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH, THROUGH
POLICE STATION THIKRI, DSITRICT BARWANI
(MADHYA PRADESH)
.....RESPONDENT
(BY SMT. VARSHA SINGH THAKUR - GOVT. ADVOCATE)
This appeal coming on for hearing this day, Justice Anil Verma
passed the following:
JUDGMENT
The appellants have preferred present criminal appeal under
Section 383 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.')
against the impugned judgment dated 27/11/2012 passed by I
Additional Sessions Judge, Barwani (M.P.) in Sessions Trial
No.111/2010, whereby the appellant No.1 Mangla has been convicted
for offence under Sections 302 and 201 of the Indian Penal Code, 1860
(in short 'IPC') and appellant No.2 Kalibai has been convicted for
offence under Sections 302 read with Section 34 and 201 of IPC and
have been sentenced to undergo Life Imprisonment with fine of
Rs.2,500/- and 02 years RI with fine of Rs.1,000/- respectively with
usual default stipulation.
02. Appellant No.2 / co-accused Kalibai has been died during the
pendency of this appeal, therefore, appeal has been abated in respect of
appellant No.2 Kalibai.
03. The prosecution story in brief is that deceased Kusum Bai was
the wife of appellant Mangla. On 23/06/2010 at about 08:30 pm at
Village Jhirnya, appellant Mangla was beating his wife Kusum Bai by
a wooden stick in front of his house and Kusum Bai was crying. Upon
this, Sureshchandra tried to intervene, then appellant Mangla told him
not to interfere in his personal matter as Kusum Bai is his wife. Co-
accused Kalibai, who happens to be the mother of the appellant
Mangla said that "you did not give money to me and give entire money
to your wife, where does money goes". Thereafter, appellant had beaten
Kusum Bai, due to which she sustained fatal injuries on her abdomen,
ribs and back and fell down on floor and succumbed to the injuries. On
the next date both the accused persons were doing preparation for
funeral of the deceased. Complainant Sureshchandra lodged an FIR at
Police Station Thikri. Accordingly, offence has been registered.
04. Prosecution story in further is that Dr. Durga Singh Chouhan
conducted the postmortem of the deceased, finds four contusion on
various parts of the body of the deceased and opined that the death of
the deceased was homicidal in nature. During the investigation,
Investigating Officer prepared spot map and arrested the accused
persons, thereafter, recovered a stick from the possession of appellant
Mangla. Cloths of the deceased were also seized and sent the same for
its chemical examination
05. After completion of the investigation, charge sheet has been
filed before the Additional Chief Judicial Magistrate, Anjad, who has
committed the case to the Sessions Judge, Barwani, which was later on
transferred to I Additional Sessions Judge, Barwani, who has framed
charges against the appellant. The appellant abjured his guilt and
pleaded complete innocence. In order to bring home the charges, the
prosecution has examined as many as 07 witnesses, while the defence
did not examine any witness. The trial Court after scrutinizing the
evidence available on record, convicted sentenced the appellant as
mentioned herein above. Being aggrieved by the judgment of
conviction and sentence, the appellant has preferred this appeal.
06. Learned counsel for the appellant submits that the she is not
assailing the findings recorded by the trial Court in respect of date of
incident, time, cause of death and complicity of the matter, however,
she submits that appellant has been wrongly convicted under Section
302 of IPC, as it is a case of sudden provocation and out of anger
appellant gave some blows by wooden stick to his wife. There was
neither premeditation nor any common intention to commit a murder,
therefore, at the most appellant is liable to be convicted under Section
304 Part-II of IPC for which he has already undergone about 14 years
in jail. Learned counsel for the appellant further submits that appellant
is not a habitual offender. No deadly weapon has been used in the
incident. Thus, it is prayed that conviction of appellant may be altered
to Section 304 Part-II of IPC.
07. Per contra, learned counsel for the respondent / State opposes
the prayer and prays for its rejection by submitting that appellant has
intentionally given as many as four blows with stick on vital part of
the deceased's body, therefore, it is a case of murder. Appellant has
rightly been convicted under Section 302 and 201 of IPC. The
judgment passed by the trial Court is just and proper. Hence, no
interference is required in the impugned judgment and the appeal
deserves to be dismissed.
08. We have heard learned counsel for the parties at length and
perused the entire record of the trial Court with due care.
09. Looking to the limited prayer now the only issue which requires
consideration is whether it is a case of culpable homicide, not
amounting to murder and falls in exception IV of the Section 300 of
IPC or not?
10. So far as the injuries are concerned, Dr. Durga Singh Chouhan
(PW-6) has conducted the postmortem of the deceased and as per
postmortem report (Ex.-P/9) deceased sustained four injuries of
contusion on her head, back of shoulder, on the right side of chest and
left side of shoulder and finds that the death of the deceased was
homicidal in nature.
11. Sole eye-witnesses Suresh (PW-1) categorically stated in his
statement that appellant has beaten his wife Kusum Bai by wooden
stick. She sustained injuries over her rib, abdomen and back and fell
down on floor and died on the spot. Suresh in his cross-examination
admits that after the incident he did not disclose the incident to
neighbors, Chowkidar or any other person of the said village and also
did not lodged any report on the same day. Saudan (PW-2), who
happens to be the father of deceased also admits in his cross-
examination that marriage of his daughter was solemnized with
appellant about 20 years prior to the incident, but before the incident
she did not lodge any report against the appellants. Shyanibai (PW-3),
who is the mother of the deceased also admits that they have good
relationship with the appellant and appellant oftenly visited his in-
law's house.
12. As per the aforesaid evidence available on record, it appears that
there was no premeditation or pre planning before the commission of
the offence. A dispute suddenly popped up between the husband and
wife. On the provocation, appellant has assaulted his wife by means of
wooden stick. He did not use any deadly weapon at the time of
incident. He has no motive to murder his wife, therefore, in our
opinion, there is considerable merit in the contention of learned
counsel for the appellant that it is the case of culpable homicidal and
will fall under exception IV of Section 300 IPC and the appellant is
liable to be convicted under Section 304 Part-II IPC. We find support
from the following judgments passed by the Supreme Court of India in
this criminal jurisprudence.
13. Hon'ble the Supreme Court has held in Gurpal Singh vs. State
of Punjab, AIR 2017 SC 471. Para 10 of the judgment reads thus:
"10. However, in the singular facts of the case
and noticing in particular, the progression of
events culminating in the tragic incident, we are
inclined to reduce the sentence awarded to him.
Incidentally, the occurrence is of the year 2004
and meanwhile twelve years have elapsed.
Further, having regard to the root cause of the
incident and the events that sequentially
unfolded, thereafter, we are of the
comprehension that the appellant was
overpowered by an uncontrollable fit of anger
so much so that he was deprived of his power of
self-control and being drawn in a web of action
reflexes, fired at the deceased and the injured,
who were within his sight. The facts do not
commend to conclude that the appellant had the
intention of eliminating any one of those fired
at, though he had the knowledge of the likely
fatal consequences thereof. Be that as it may, on
an overall consideration of the fact situation
and also the time lag in between, we are of the
view that the conviction of the appellant ought
to be moderated to one under Sections 304 Part
I IPC and 307 IPC. Further, considering the
facts of the case in particular, according to us, it
would meet the ends of justice, if the sentence
for the offences is reduced to the period already
under one. We order accordingly."
14. Hon'ble the Supreme Court has laid down in Prabhakar Vithal
Gholve vs. State of Maharashtra, AIR 2016 SC 2292 that if the
assault on deceased could be said to be on account of the sudden fight
without premeditation, in heat of passion and upon a sudden quarrel,
conviction of the appellant cannot be sustained under Section 302 of
IPC and altered to one under Section 304 Part-I of IPC. In the case of
Sikandar Ali vs. State of Maharashtra, AIR 2017 SC 2614, the
Court altered the conviction under Section 302 IPC to one under
Section 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 scrutinizing
the material available 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
deceasedwas 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 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."
15. In view of the above discussion and verdicts of the Apex Court,
the criminal appeal is partly allowed. We hereby confirm all the
findings given by the learned Additional Session Judge except the
conviction, which is hereby altered to Section 304 Part-II of IPC,
instead of Section 302 of IPC, however, conviction under Section 201
of IPC is hereby maintained and accordingly sentence is reduced from
life imprisonment to the period already undergone by the appellant.
The fine amount as imposed by the trial Court is also affirmed. The
appellant be set free after depositing the fine amount, if not already
deposited and if he is not required to detain in jail in any other case.
16. The order regarding disposal of property as pronounced by the
trial Court is also affirmed.
17. Let the record of trial Court along with copy of this judgment be
sent to the concerned trial Court for information and necessary action.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
J U D G E J U D G E
Tej
