Madhya Pradesh High Court
Jaimal vs The State Of Madhya Pradesh on 15 May, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 15 th OF MAY, 2024
CRIMINAL APPEAL No. 10996 of 2019
BETWEEN:-
JAIMAL S/O DHUDIYA BHEEL, AGE 35 YEARS,
DHDIKHEDA AT PRESENT R/O BAGCHA POLICE
STATION OCHAPURA DISTRICT SHEOPUR (MADHYA
PRADESH)
.....APPELLANT
( BY SHRI VIKRAM SINGH - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH INCHARGE
POLICE STATION VIJAYPUR, DISTRICT-SHEOPUR
(MADHYA PRADESH)
.....RESPONDENT
( BY SHRI RAJESH SHUKLA - ADDITIONAL ADVOCATE GENERAL)
This appeal coming on for orders this day, Justice Vivek Rusia passed
the following:
JUDGMENT
1. The present criminal appeal has been filed under Section 374 of the
Code of Criminal Procedure, 1973 by the appellant against the judgment of
conviction and sentence dated 14th February, 2018 passed by the Additional
Sessions Judge, Vijaypur, District-Sheopur, whereby appellant has been
convicted for the offence punishable under Sections 302 of IPC and sentenced
to undergo Life Imprisonment with fine of Rs.20,000/- with default stipulation.
2. As per prosecution story, the deceased Dhani Bai was brought to the
Primary Health Center, Sheopur in burning condition on 13-09-2016. She was
found 60% burn. Her dying declaration was recorded on 14-09-2016 between
3:30 pm to 3:41 pm in which she disclosed her name as Dhani Bai and the
manner in which she sustained burn injury. According to the deceased, her son
and son of present appellant aged between 8-9 years were fighting and
therefore, present appellant started abusing her and poured kerosene on her
body and set her ablaze. At the time of incident, her husband was not present
in the house. On the basis of aforesaid incident, F.I.R. was lodged against the
present appellant on 13-09-2016 at about 7:30 pm at Police Station Gram
Bagcha, Police Station Oochapura. The deceased succumbed to injuries. Her
Post-mortem was carried out. Appellant was arrested and tried under Section
302 of IPC.
3. The Police completed the investigation and filed the charge-sheet
under Section 302 of the I.P.C. before the JMFC from where the case was
committed to the Sessions Court for trial. The appellant denied the charges and
prayed for trial. In order to establish the charges, the prosecution was called
upon to examine the witnesses. The prosecution examined as many as 10
witnesses and exhibited 18 documentary evidence to support its case. In
defence, appellant did not examine any witness. After analyzing the entire
material available on record, the appellant has been convicted and sentenced as
referred above. Hence, this appeal is before this Court.
4. Learned counsel for the appellant submits that prosecution witnesses
especially daughter and husband of the deceased are not supporting the case of
the prosecution as according to them, deceased herself has committed suicide
by pouring kerosene on her because of the fight occurred between her son and
son of present appellant. Therefore, the case at the most will fall under Section
306 of IPC for which appellant has already suffered 08 years actual
incarceration.
5. Per contra, learned Additional Advocate General for the respondent-
State opposes the prayer and submits that Dying Declaration of the deceased
cannot be dis-belived because she was only 60% burn and was in fit condition
to give statement. Rest of the prosecution witnesses who are not supporting
the case of the prosecution are the close relatives of the appellant therefore, they
are bound to give statements in support of the appellant. Hence, prays for
dismissal of the appeal.
6 . We have heard the learned counsel for the parties and perused the
record.
7. In this case, if dying declaration of the deceased is treated as it is then
it reveals that there was sudden fight occurred between the son of the deceased
and son of present appellant aged between 8-9 years because of which appellant
started abusing the deceased and poured kerosene on her body and set her
ablaze. Due to which, she sustained 60% of burn injuries and thereafter she was
taken to the hospital. Therefore, the dispute suddenly occurred and out of
anger, appellant took this drastic step. There was no evidence to the effect that
there was any previous animosity between appellant and deceased and also that
it was a pre-planned murder. Appellant and deceased were close relatives and
because of the fight suddenly occurred between their children, the incident took
place. Neither appellant is a habitual offender nor having any criminal record.
However, he did not make any effort to save the deceased or to take her to the
hospital instead he ran away from the spot, therefore, this case falls under
Section 304 Part-I otherwise, it would have been fallen under Section 304 Part-
II.
8 . Keeping the overall facts and circumstances of the case, we hereby
affirmed the judgment of the trial Court in respect of cause of death of the
deceased, complicity of the appellant, post-mortem report medical evidence
etc. The only issue which requires our consideration is whether the conviction
of the appellant for the offence under Section 302 of the IPC is liable to be
altered into Section 304 Part-I or not. The Hon'ble Supreme Court of India in
the cases of Gurpal Singh v/s The State of Punjab reported in AIR 2017
SC 471, Arjun & Another v/s The State of Chhattisgarh reported in AIR
2017 SC 1150, Prabhakar Vithal Gholve v/s The State of Maharashtra
reported in AIR 2016 SC 2292, Sikandar Ali v/s The State of
Maharashtra reported in AIR 2017 SC 2614, Madhavan & Others v/s
The State of Tamil Nadu reported in AIR 2017 SC 3847 and Ankush
Shivaji Gaikwad v/s The State of Maharashtra reported in (2013) 6 SCC
770, the offence will not travel more than Section 300 exception IV of the IPC
for which the appellant is liable to be convicted for the offence punishable
under Section 304 Part I.
15. The Hon'ble Supreme Court has held in Arjun & Another (supra)
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.............."
11. 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'."
9. The Apex Court in the case of Ram Asrey v/s The State of U.P.
reported in 1993 Supp (4) SCC 2018 in paragraphs - 10 & 11 has held as
under:-
10. The next question which has to be examined is as to
whether so far the appellant is concerned who, according to the
prosecution case itself, has not given any Banka blow to the
victim, but is said to have pressed down the deceased, before
the other two accused persons Radhey Shyam and Munni Lal
had given the blows, should have been held guilty for an
offence under Section 302 read with Section 34 of the Penal
Code. It was pointed out that the appellant was a school
student and there was no reason on his part to share the
common intention of committing the murder of the victim. In
this connection, reference was made to the injuries found on
the person of the victim during the post mortem examination. It
was pointed out that the injuries were not consistent with the
prosecution case that the other two accused persons caused
those injuries with Bankas. About injuries Nos. 2, 3 and 4 the
Doctor, who held the post mortem examination, has clearly
stated that they must have been caused by some blunt weapon.
In respect of injury No. 4, he has said that it might have been
caused by the blunt side of the Banka. This itself shows that
amongst the two participants in tile occurrence.
They had different intentions. One out of the two assailants i.e.
Radhey Shyam and Munni Lal had used the back side of the
Banka. If one of the two assailants had used the back side of
the Banka, then from this conduct it can be reasonably inferred
that such assailant had not the intention to cause the death of the
victim, otherwise there was no reason to use the back side of
the Banka, instead of sharp side which in normal course could
have caused the death of the victim. However, so far the
present appeal is concerned, we are not concerned with either
of the two other accused persons. But this circumstance can be
taken into consideration for judging the role played by the
appellant. According, to us, by merely pressing down the
victim before the other two accused persons assaulted him, it
cannot be held that appellant had shared the common intention
of causing the death of the victim. In the facts and
circumstances of the case, of course, it has to be held that he
shared only the common intention of culpable homicide not
amounting to murder. He can be attributed with the intention
that the injuries, which were being caused by the other two
accused persons, were likely to cause the death of the victim.
11. Accordingly, we set aside the conviction of the appellant
under Section 302 read with Section 34, as well as his
sentence to imprisonment for life. He is convicted under
Section 304, Part 1, read with Section 34 of the Penal Code
and sentenced to undergo rigorous imprisonment for ten years.
The appeal is accordingly allowed in part to the extent
indicated above."
10. The Hon'ble Supreme Court has laid down in Prabhakar Vithal
Gholve v/s The State of Maharashtra reported in AIR 2016 SC 2292 that
if the assault on the deceased could be said to be on account of the sudden
fight without pre-meditation, in heat of passion and upon a sudden quarrel,
Conviction of the appellant cannot be sustained under Section 302 and altered
to under Section 304 Part-I of IPC.
11. In view of the aforesaid, appeal is partly allowed. The conviction of
the appellant - Jaimal S/o Dhudiya Bheel under Section 302 of the IPC is
converted to 304 Part-I of the IPC and his jail sentenced is reduced from Life
Imprisonment to Rigorous Imprisonment for ten years. The fine amount as
imposed by the trial Court is enhanced from Rs.20,000/- Rs.50,000/- out of
which Rs.30,000/- shall be payable to the family members of the deceased. The
appellant be set free if he has completed R.I. for ten years with remission
period, subject to depositing the fine amount and if he is not required to be kept
in jail in any other case.
12. Record of the trial Court be sent back alongwith the copy of this
judgment. The copy of this order be sent to the jail authorities by faster mode.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
vc
VARSHA
CHATURVEDI
2024.05.16
14:36:33
+05'30'
