Madhya Pradesh High Court
Pushpendra Giri 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. 1051 of 2019
BETWEEN:-
PUSHPENDRA GIRI S/O KAMAL GIRI, AGED ABOUT 23
YEARS, R/O GRAM AMROL POLICE STATION CHINOR,
DISTRICT GWALIOR (MADHYA PRADESH)
.....APPELLANT
(SHRI NAVAL KISHOR GUPTA-ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION BILLAU (MADHYA PRADESH)
.....RESPONDENTS
( SHRI RAJESH SHUKLA - ADDITIONAL ADVOCATE GENERAL)
This appeal coming on for Judgement this day, Justice Vivek Rusia
passed the following:
ORDER
With the consent of parties, this appeal is heard finally instead of hearing
o n I.A. No.9349/2024, an application for suspension of sentence which
accordingly, stands disposed of.
Present appeal under Section 374 of IPC has been filed against the
Judgment dated 22/01/2019 passed by Second Additional Sessions Judge,
Dabra, District Shivpuri in Sessions Trial No.313/2015, whereby the present
appellant - Pushpendra Giri has been convicted under Section 304 Part I of
IPC and sentenced to undergo life imprisonment with fine of Rs.5000/- with
default stipulation and also convicted under Section 25(1-B)(A) & 27 of Arms
Act and sentenced to undergo 3 Years' R.I. & 3 years R.I. with fine of
Rs.1,000/- & Rs.1,000/- respectively with usual default stipulations and co-
accused Kamal Giri has been convicted under Section 30 of Arms Act and
sentenced to already undergone by him during trial i.e. from 27/06/2015 to
10/09/2015 with fine of Rs.2,000/-.
2. As per prosecution story, on 31/05/2015, faldan ceremony of one
Mamta was going on at village Jorasi, District Gwalior. There was a gathering of
100-125 persons. During that ceremony, the dispute arose between Pawan
(deceased) and Pushpendra (present appellant) in respect of water. When
Pawan demanded water from Pushpendra, he fired a gunshot from a 12 bore
gun belonging to his father Kamal Giri, which hit Pawan. He was immediately
taken to JAH Hospital, Gwalior where he was declared dead. The Doctor H.L.
Manjhi & CMO sent an information (Ex.P14) to the Police Station. Thereafter,
the morgue was registered and the post mortem was carried out. Investigation
was handed to Sub Inspector Sanjeev Dubey. On the basis of statement
recorded during Morgue No.23/2015, FIR was registered against Pushpendra
Giri (present appellant) and his father Kamal Giri and they were arrested. After
completion of investigation, charge-sheet was filed. The trial was committed to
the Sessions Court, where the present appellant denied the charges and pleaded
for trial. The prosecution has examined as many as 11 witnesses and exhibited
19 documents. In defence, the appellant has examined 4 witnesses and pleaded
false implication. After evaluating the evidence that came on record by the
impugned judgment, present appellant has been convicted under Section 304
Part I of IPC and under Section 25(1-B)(A) & 27 of Arms Act and sentenced
as stated above.
3. Learned counsel for the appellant, at the very outset, submits that he
is not assailing the findings recorded by the trial Court on various issues like
cause of death, place of incident and complicity of this present appellant.
Learned counsel for appellant further submits that dispute suddenly occurred
on a petty issue. The present appellant had no intention to kill the deceased. At
that time, he was aged about 19 years. Out of anger, he fired a gunshot which
hit on a non-vital part of the body. The deceased died to excessive bleeding.
There was no previous enmity between them. It was not a pre-planned murder.
He had no criminal history. Even if the entire evidence is believed as it is, even
than the offence would not travel beyond Section 304 Part II of IPC.
4. Learned State counsel opposes the prayer by submitting that present
appellant had fired a gun-shot with an intention to kill; therefore, present
appellant has rightly been convicted and no interference is called for and the
conviction is liable to be maintained.
5. We have heard learned counsel for the parties and perused the
record.
6. So far as statement of Nareshpuri (PW-1), the father of deceased is
concerned, he deposed that his son Pawan (deceased) demanded water from
Pushpendra. Thereafter, Pushpendra came up with a gun belonging to his father
Kamal Giri and fired a gunshot which hit his son Pawan. He took him to the
Hospital where he was declared dead. However, in his statement, he has
nowhere stated that present appellant has fired a gunshot due to previous enmity
to kill his son. Surendra (PW-3) also stated that because of demand of water,
Pushendra fired the gunshot. Bhagwan Puri (DW-1) also deposed that persons
came from Indrapuri were carrying 10-12 guns and after the faldan ceremony,
they started firing on air (harshfire) and thereafter, he was declared hostile.
Likewise, Rajendra Singh (DW-2) also stated 150 persons came from Indrapuri
and 12-13 were carrying guns. They fired on air by way of celebration. The
similar evidence was given by Hari Singh (DW-3) & Rakesh Puri (DW-4).
Thus, none of the witnesses have deposed against the present appellant. The
present appellant, at that time, was aged about 19 years and had no criminal
past. In gathering of this faldan ceremony, number of persons were carrying
gun. His father also came up with a gun. In a heat of moment, present appellant
Pushpendra fired a gunshot without intention to kill and it is not a pre-planned
murder as per the evidence came on record.
7 . The Hon'ble Supreme Court has held in Gurpal Singh v. 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 1 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
undergone. We order accordingly."
8. The Hon'ble Supreme Court in the case of Arjun & Another v. The
State of Chhattisgarh reported in AIR 2017 SC 1150 held as under: -
"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'."
9. The Hon'ble Supreme Court has laid down in Prabhakar Vithal
Gholve v. 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.
10. In Sikandar Ali v. State of Maharashtra, AIR 2017 SC 2614,
the Court altered the conviction under Section 302 IPC to one under Section
304 part-2 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."
11. In the case of Premchand v. The State of Maharashtra
(Criminal Appeal No. 211 of 2023 ) reported in 2023 (2) S.C.R. 119, the
apex court has recently held, as under :-
"24. Exception 4 to section 300, IPC ordains that 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. The
explanation thereto clarifies that it is immaterial in such cases which party
offers the provocation or commits the first assault. Four requirements
must be satisfied to invoke this exception, viz. (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 or unusual manner.
25. Taking an overall view of the matter, we are inclined to the opinion
that the appellant was entitled to the benefit of Exception 4 to section
300, IPC."
12. The Hon'ble Apex Court laid down in Madhavan & Others v.
State of Tamil Nadu reported in AIR 2017 SC 3847 that: -
"8 . Notably, the High Court has not considered the issue of quantum of
sentence at all, but mechanically proceeded to affirm the sentence awarded
by the Trial Court. From the factual position, which has emerged from the
record, it is noticed that there was a preexisting property dispute between
the two families. The incident in question happened all of a sudden without
any premeditation after PW1 questioned the appellants about their
behaviour. It was a free fight between the two family members. Both sides
suffered injuries during the altercation. The fatal injury caused to Periyasamy
was by the use of thadi (wooden log) which was easily available on the spot.
The appellants, on their own, immediately reported the matter to the local
police alleging that the complainant party was the aggressor. No antecedent
or involvement in any other criminal case has been reported against the
appellants. Taking oral view of the matter, therefore, we find force in the
argument of the appellants that the quantum of sentence is excessive."
13. In Chand Khan v. The State of Madhya Pradesh reported in
2006 (3) M.P.L.J. 549 , the Division Bench of this Court has also converted
the conviction of the appellant in attaining facts and circumstances of the case.
Para - 10 & 11 of the judgment are relevant which read thus: -
"1 0 . If the present case is considered in the light of the aforesaid
decisions of the Supreme Court, it would show that the appellants caused
single injury on the head of the deceased by farsa, which is a sharp edged
weapon, but unfortunately Aziz Khan (PW-11) and Ishaq Khan (PW-13)
have stated that he gave lathi blow on the head of the deceased. Even
after considering this contradictory evidence it has to be taken into
consideration that it is a case of single farsa blow inflicted by only
appellant Chandkhan and appellant Naseem inflicted only lathi blow on
the nonvital part of the body and in the absence of this evidence that the
injury no.(i) was sufficient to cause death in the ordinary course of nature
and also looking to the various other circumstances like that the accused
as well as the deceased are close relatives and the deceased was a
person of criminal background and the incident started because of the
abuses made first by the deceased himself, we find that the case will not
fall within the purview of section 300, Indian Penal Code but it will fall
under section 304 Part II, culpable homicide not amounting to murder.
11 . Consequently, appeal is partly allowed. Conviction of appellants
under section 302/34 Indian Penal Code, is set aside and instead they are
convicted under section 304 part II, Indian Penal Code, .........."
14. In the case of Ankush Shivaji Gaikwad v. State of Maharashtra
reported in (2013) 6 SCC 770, the Supreme Court of India has held as under:-
"10. On behalf of the appellant it was contended that the appellant's case fell
within Exception 4 to Section 300 IPC which reads as under:
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's having taken
undue advantage or acted in a cruel or unusual manner.
11. It was argued that the incident in question took place on a sudden fight
without any premeditation and the act of the appellant hitting the deceased
was committed in the heat of passion upon a sudden quarrel without the
appellant having taken undue advantage or acting in a cruel or unusual
manner. There is, in our opinion, considerable merit in that contention. We
say so for three distinct reasons:
11.1. Firstly, because even according to the prosecution version, there was
no premeditation in the commission of the crime. There is not even a
suggestion that the appellant had any enmity or motive to commit any offence
against the deceased, leave alone a serious offence like murder. The
prosecution case, as seen earlier, is that the deceased and his wife were
guarding their jaggery crop in their field at around 10 p.m. when their dog
started barking at the appellant and his two companions who were walking
along a mud path by the side of the field nearby. It was the barking of the
dog that provoked the appellant to beat the dog with the rod that he was
carrying apparently to protect himself against being harmed by any stray dog
or animal. The deceased took objection to the beating of the dog without in
the least anticipating that the same would escalate into a serious incident in
the heat of the moment. The exchange of hot words in the quarrel over the
barking of the dog led to a sudden fight which in turn culminated in the
deceased being hit with the rod unfortunately on a vital part like the head.
11 . 2 . Secondly, because the weapon used was not lethal nor was the
deceased given a second blow once he had collapsed to the ground. The
prosecution case is that no sooner the deceased fell to the ground on
account of the blow on the head, the appellant and his companions took to
their heels a circumstance that shows that the appellant had not acted in an
unusual or cruel manner in the prevailing situation so as to deprive him of the
benefit of Exception 4.
11.3. Thirdly, because during the exchange of hot words between the
deceased and the appellant all that was said by the appellant was that if the
deceased did not keep quiet even he would be beaten like a dog. The use of
these words also clearly shows that the intention of the appellant and his
companions was at best to belabour him and not to kill him as such. The
cumulative effect of all these circumstances, in our opinion, should entitle the
appellant to the benefit of Exception 4 to Section 300 IPC."
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 Sessions Judge except the conviction which is hereby altered to
Section 304 Part II of IPC, instead of Section 304 Part I of IPC and
accordingly, sentence is reduced from Life Imprisonment to 10 Years'
Rigorous Imprisonment. The fine amount is maintained as imposed by the trial
Co urt. After undergoing the aforesaid sentence i.e. 10 years' R.I. with
remission, the present appellant - Pushpendra Giri be set free, after depositing
the fine amount, if not already deposited, if he is not required to be kept in jail in
any other case.
16. Record of the trial Court be sent back along with a copy of this
judgment. The copy of this order be sent to jail authorities by faster mode.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
(Dubey)
