Madhya Pradesh High Court
Madan Lal(Deleted) vs The State Of Madhya Pradesh on 30 May, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR-IV
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
CRIMINAL APPEAL No. 853 of 2014
BETWEEN:-
1. MADAN LAL (DELETED) S/O SHRI MOHAN LAL
GADRI, AGED-65 YEARS, R/O VILLAGE
DADONIA THANA, JAMNER GUNA (MADHYA
PRADESH)
2. SHESHNARAYAN S/O MADAN LAL, AGED-28
YEARS, R/O VILLAGE DADONIA THANA
JAMNER, GUNA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ASHOK JAIN - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH INCHARGE
POLICE STATION AARAKSHI KENDRA JAMNER
GUNA (MADHYA PRADESH)
.....RESPONDENT
( BY SHRI A.K.NIRANKARI - GOVERNMENT ADVOCATE)
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Reserved on 03/05/2024
Delivered on 30/05/2024
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This petition coming on for hearing this day, Hon'ble Justice
Milind Ramesh Phadke passed the following:
ORDER
1. The present Criminal Appeal u/S 374 of CrPC has been
preferred by aforesaid appellant, challenging the judgment and
order dated 18.07.2014 passed by learned Second Additional
Sessions Judge, District Guna (MP) in Sessions Trial No.341 of
2012, whereby appellant has been convicted under Section 302/34
of IPC and sentenced to undergo Life Imprisonment with fine of
Rs.500/- each with default stipulations.
2. The case of prosecution in nutshell is that one Hemraj
(deceased) and complainant Kamlesh when were returning to their
village Dadoniya after selling milk at about 8 AM, near Jamner
Pulia that the present appellant Sheshnarayan along with one
Madanlal (deceased), Sarjan and Brahma armed with farsi,
lohangi etc in continuation of some previous enmity in relation a
dispute regarding certain land, stopped them and started hurling
filthy abuses and when the deceased and complainant tried to stop
them that the present appellant Sheshnarayan gave a farsi blow on
the head of deceased Hemraj and Madanlal (since deceased)
inflicted lohangi blow to the deceased and all the four after
threatening them for life went away. Deceased Hemraj was taken
to Primary Health Center, Maqsoodangarh, but as his condition
was serious, he was referred to Guna hospital, but after reaching
the hospital at Guna he succumbed to his injuries and died.
3. On the basis of the information given by complainant
Kamlesh, Dehati Nalisi exhibit P/15 was recorded and on the
basis of Dehati Nalisi offence under Sections 307, 294, 323, 506B
and 341 of IPC was registered against the present appellant and
other co-accused persons.
4. From the spot blood stained soil as well as normal soil were
siezed and the statements of the witnesses were recorded. On
01.09.2012 appellant Sheshnarayan and Madanlal (deceased)
were arrested vide exhibit P/2 and P/3 respectively and on the
basis of their memo exhibit P/4 and P/5 respectively one lohangi
from the custody of Madanlal (deceased) and one farsi from the
custody of Sheshnarayan were seized. Along with the blood
stained soil the farsi, lohangi and one stick(lathi) recovered from
the appellant and other co-accused were seized and were sent for
examination to FSL, Gwalior vide exhibit P/34 and from the FSL
report Exhibit C/1 human blood was found on farsi and lathi
(stick). After completion of the investigation challan was filed
against the present appellant Sheshnarayan and Madanlal
(deceased) in the Court of Raghogarh and so far as other co-
accused Sarjan and Brahma were concerned since they were
minor challan was submitted before the Juvinile Court. After
committal, the matter was sent to the Sessions Court and,
thereafter, the appellant and the other co-accused were put to trial.
5. The offences were denied by the present appellant and the
co-accused and in their 313 Cr.P.C statements they submitted that
the complainant/party wanted to take illegal possession of their
land and in pursuance thereof they have wrongly implicated the
appellant with the incident and in defence they got examined one
Gopaldas and Ramnath Singh.
6. Learned Trial Court framed four issues and recorded
statements of 17 prosecution witnesses. After analysing the
statements as well as material available on record, learned Trial
Court found both the appellant guilty under Section 302/34 of
IPC, but exonarated them from the offence under Section 294 and
506 part 2 and convicted them accordingly as mentioned above.
7. Learned counsel for the appellant while assailing the
statements of complainant Kamlesh had argued that Dehati Nalisi
recorded at his behest doesn't reflect the exact time when it was
recorded as the time mentioned is 08/10 Hrs whereas his 161
statement was recorded at 09:30 AM and in both Dehati Nalisi as
well as 161 statements, he had stated that at the time of incident
he was driving the bicycle and Hemraj was sitting on the back
seat, but no where it has come that when deceased was pulled
down from the bicycle, he also fell down and sustained injuries,
which would had been natural, but not a single injury had been
caused to his person, which creates doubt of his presence on the
spot. It was further submitted that in Dehati Nalisi Exhibit P/15
and in the 161 statement Exhibit D/2 the complainant Kamlesh
has specifically stated that he and deceased after selling the milk
at Jamner were returning back to their village Dadoniya, but he in
his Court statement has not stated that he was going on the same
bicycle rather he had only stated that when they were returning
after selling the milk that the present appellant and other co-
accused persons had assaulted him.
8. It was further argued that though it could be said that there
was motive for the appellant and other co-accused persons to
assault the deceased, but the intention of causing homicidal death
cannot be presumed from the very act as the injuries which were
caused by the present appellant Sheshnarayan was on the head
which was not the cause of death of the deceased rather the cause
of death was rupture of left lung which ruptured due to the
fracture of two ribs and none of the injuries were on the chest
which could be attributed to the appellant, as in all total 8 injuries
were found by PW-8 Dr.Vinod Chaurasia which were on head,
legs and hands.
9. It was further argued that the Dr. Vinod Chaurasia in his
cross-examination had submitted that the fracture of the ribs could
be due to fall of the deceased on stones and rest of the injuries
which were on the body of the deceased were simple in nature,
thus, at the most the case of the appellant would fall under the
exception of 304 part II.
10. It was further submitted that the version of the eye
witnesses and the contradictions in their testimony since are
manifestly clear and are not trustworthy, thus, could not have been
relied to convict the present appellant, only due to a fact
mentioned by the witnesses that there was some previous enmity
with regard to certain land between the deceased and the accused
persons and in absence of any cojent material it cannot be
presumed that there was some previous enmity between them.
11. It was further submitted that complainant Kamlesh PW-9 in
his cross-examination in para 6 had specifically stated that with
regard to previous enmity between the deceased and accused in
relation to certain piece of land is not within his knowledge which
itself belies the story of the prosecution that due to enmity
between the deceased and accused persons they have assaulted the
deceased and has committed his homicidal death.
12. It was further argued that the weapons which has been
alleged to be used in the incident are normal articles which the
villagers carry along with them in their fields and it cannot be said
that there was some pre-mediation of minds between them to have
assaulted the deceased and causing his death which makes the
present case fall under Section 304 part II of the IPC and it cannot
be said to be a murder in terms of Section 300 of IPC attracting
conviction therein. It was further submitted that looking to the
nature of the injuries caused to the deceased and the number of
injuries caused, it could be seen that the appellant and the other
co-accused never intended to kill the deceased otherwise the
injuries would have been much more in number and also as none
of the injuries caused by the appellant had proved to be fatal and
had caused death of the deceased, the case of the appellant can
very well be covered under the definition of 304 part II of IPC.
13. It was further argued that the case of the appellant can be
said to fall under the sub-Section 4 of Section 300 of IPC, as the
act of the appellant and the other co-accused persons were not
pre-mediated and can be said to have occurred in the heat of
passion upon a sudden quarrel as from the very statements of the
eye witnesses it is not clear whether the said assault was done
immediately when the deceased reached the spot or it was after
some altercation between them.
14. It was also argued that the appellant have already under
gone actual jail sentence for more than 9 years (to be precise 9
years, 9 months and 16 days) and if the present case is converted
to Section 304 part 2 of IPC then the sentence can be reduced to
one already under taken by the appellant.
15. On the other hand, learned counsel for the
respondents/State has opposed the prayer and had argued that
looking to the factual backdrop as has been brought by the
prosecution the guilt of the appellant and the other co-accused
persons is very well established. It was argued that looking to the
deposition of PW-1 Pappu s/o Mathuralal, PW-2 Kamlesh s/o
Dhanlal, PW-9 Kamlesh s/o Santosh the act of the appellant
causing injury over the head of the deceased by means of farsi
which is a vital part of the body, is duly established.
16. It was further argued that the blow given by the appellant
was fatal, therefore, the alternative prayer made by the learned
counsel for the appellant for conversion of the offence under
Section 304 part II cannot be accepted as there were in all three
cut wounds which could be attributed to the present appellant and
which proves the intention of the appellant.
17. It was further submitted that none of the eye witnesses had
turned hostile or can be said that had not supported the case of the
prosecution, and only on the basis that there are some
contradictions and ommissions in their 161 statements and the
Court statements, it cannot be said that the present appellant along
with other co-accused persons had not committed homicidal
death, thus, it was prayed that no fault can be found in the
judgment and the same requires no interference.
18. Heard the counsels for the parties and perused the record.
19. From the MLC total 7 injuries were found on the body of
the deceased. Injury no.1, 2, 5 and 6 were inseized wounds caused
by means of sharp edged object. Injury no.1 was on left parital
reason, no.2 was on left elbow, no.5 was on right forearm below
elbow and no.6 was on shin of left leg/left knee and other three
injuries were bruises. Except for the injury on the head none of
the injuries were on the vital part of the body. The said injuries
were coraborated by the injuries as mentioned in the postmortem
and proved by PW-8 Dr. Vinod Chaurasia, who had conducted
postmortem.
20. From the postmortem report Exhibit P/14 in all 8 injuries
have been found on the person of the deceased. The injuries are as
follows:
1- ,d flyk gqvk ?kko Fkk tks rhu lseh yack gS tks
fd flj ds ck;sa iSjkbVy Hkkx ij fLFkr FkkA
2- ,d flyk gqvk ?kko tks nkfguh vxz Hkqtk ij Fkk
ftldh yackbZ nks lseh FkhA
3- ,d flyk gqvk ?kko tks ck;ha Hkqtk ij fLFkr Fkk
ftldh yackbZ ,d lseh FkhA
4- cgqr lkjs uhyxw fu'kku Fks ftudk vkdkj dze'k%
3x1 lseh] 2.5 x 1 lseh , 1x 1 lseh FksA
5- nks flys gq, ?kko tks ck;ha Vkax ij fLFkr Fks
ftudk vkdkj nks lseh ,oa ,d lseh yacs FksA
6 ,d uhyxw ftldk vkdkj 6 x 1 lseh Fkk tks
ck;aha tka?k ij Fkk ykfyek fy;s FkkA
7 ,d uhyxw ftldk vkdkj 3 x 1 lseh tks
nk;ha tka?k ij Fkk ykfyek fy;s FkkA
8 rhu fNyu ds fu'kku tks ck;ha Vkax ij fLFkr Fks
ftudk vkdkj dze'k% 2.5 x 0.5 lseh] 1.5x 0.5
lseh] 1 x 0.5 lseh FksA jDr tek gqvk FkkA
21. Both the Drs PW-5 Dr. Mukesh Sharma and PW-8 Dr.
Vinod Chaurasia who had conducted the MLC and postmortem
respectively had in their cross-examination stated that though the
injuries caused to the deceased were grievous in nature, but were
not fatal which could had caused the death.
22. So far as the statements of PW-5 Dr. Mukesh Sharma is
concerned, in para 5 he had stated that injury no.1 i.e. on the head
could have been caused if the deceased would have fallen on a
pointed stone and the other injuries could be caused, if the
deceased would had rolled on the floor for number of times. He
has further stated that if the deceased would have got the better
treatment, he would have survived. Further from the statements of
PW-8 Dr. Vinod Chaurasia who had conducted the postmortem,
the cause of death shown is due to rupture of left lung, that may
had been caused to the deceased when he was brought down from
the cycle. None of the injuries which have been caused by the
appellant and the other co-accused persons were the cause for
rupture of the left lung. Further PW-8 Dr. Vinod Chaurasia had
submitted that except for the injuries in the lungs, none of the
injuries caused to the deceased, would had resulted in death.
23. Since the report made to the police was immediate after the
incident and even the eye witnesses have supported the case of the
prosecution, it could not be said that the appellant and other co-
accused persons have not caused injuries to the deceased. Thus,
involvement of the accused/appellant in the incident is duly
proved and finding of the Court below to that extent cannot be
interfered with and is hereby affirmed.
24. With regard to the alternative plea of the counsel for the
appellant for conversion of the offence under Section 304 part 2
of IPC as there was no intention of the accused and other co-
accused persons to have caused homicidal death of the deceased
though they may have knowledge that the injuries caused by them
may be fatal is concerned, this Court after perusing the entire
statements of the witnesses, the nature of injuries caused to the
deceased and the other material available on record finds that as
per the prosecution story the appellant and other co-accused
persons had stopped the deceased and had thrown him on the
ground, but had not immediately started assaulting him. It was
after some heated altercations between the appellant and the
deceased and when the deceased tried to stop the accused persons
from uttering filthy abuses that the appellant and other co-accused
persons inflicted farsi, lohangi and stick blows on the deceased.
Thus, it can be said that there was no pre-mediation of minds to
have committed homicidal death, at the most the act of the present
appellant and other co-accused persons can be said to have caused
injuries to the person of the deceased and it can also be said that
the unfortunate incident took place in heat of passion on spurr of a
moment.
25. It is also to be seen that the assault made by the appellant
and other co-accused persons by means of farsi, lohangi, sticks,
the so called weapons, are readily available with the villagers and
they usually carry with them whenever they are in on going to the
fields, which also does not reflects that there was any pre-
mediation.
26. Even otherwise the medical evidence which has come up on
record goes to show that the injuries caused by the appellant and
the persons were not sufficient in the ordinary course of nature to
have caused death rather injury on the chest which had broken the
ribs due to which left lung got ruptured was the cause of the death
of the deceased. Apart from the aforesaid medical evidence, the
injury which has been caused by the appellant by means of farsi
on head, was also not fatal and the cause of death and it is also
noteworthy that except for that injury no other injury has been
caued by the appellant on any vital part of the body, thus, at the
most it can be said that by inflicting such injuries he only had
knowledge that it is likely to cause death and in such an event the
offence committed by him would come under the purview of
culpable homicide not amounting to murder.
27. The Apex Court has laid down the litmus test for
determination of the provisions which could be said to have been
attracted in such type of cases in the matter of Pulicherla
Nagaraju @ Nagaraja Reddy vs State Of A.P reported in 2006
(11) SCC 444 as per the dictum of the Hon'ble Apex Court the
following factors need to be examined (i) nature of the weapon
used; (ii) whether the weapon was carried by the accused or was
picked up from the spot; (iii) whether the blow is aimed at a vital
part of the body; (iv) the amount of force employed in causing
injury; (v) whether the act was in the course of sudden quarrel or
sudden fight or free for all fight; (vi) whether the incident occurs
by chance or whether there was any pre- meditation; (vii) whether
there was any prior enmity or whether the deceased was a
stranger; (viii) whether there was any grave and sudden
provocation, and if so, the cause for such provocation; (ix)
whether it was in the heat of passion; (x) whether the person
inflicting the injury has taken undue advantage or has acted in a
cruel and unusual manner; (xi) whether the accused dealt a single
blow or several blows.
28. The Hon'ble Apex Court in the recent judgment in the case
of Anbazhagan vs The State represented by the Inspector of
Police in Criminal Appeal No.2043 of 2023 disposed of on
20.07.2023 has defined the context of the true test to be adopted
to find the intention or knowledge of the accused in doing the act
as under:
60. Few important principles of law discernible from
the aforesaid discussion may be summed up thus:-
(1) When the court is confronted with
the question, what offence the
accused could be said to have
committed, the true test is to find out
the intention or knowledge of the
accused in doing the act. If the
intention or knowledge was such as is
described in Clauses (1) to (4) of
Section 300 of the IPC, the act will be
murder even though only a single
injury was caused. To illustrate : 'A' is
bound hand and foot. 'B' comes and
placing his revolver against the head
of 'A', shoots 'A' in his head killing
him instantaneously. Here, there will
be no difficulty in holding that the
intention of 'B' in shooting 'A' was to
kill him, though only single injury
was caused. The case would,
therefore, be of murder falling within
Clause (1) of Section 300 of the IPC.
Taking another instance, 'B' sneaks
into the bed room of his enemy 'A'
while the latter is asleep on his bed.
Taking aim at the left chest of 'A', 'B'
forcibly plunges a sword in the left
chest of 'A' and runs away. 'A' dies
shortly thereafter. The injury to 'A'
was found to be sufficient in ordinary
course of nature to cause death. There
may be no difficulty in holding that
'B' intentionally inflicted the
particular injury found to be caused
and that the said injury was
objectively sufficient in the ordinary
course of nature to cause death. This
would bring the act of 'B' within
Clause (3) of Section 300 of the IPC
and render him guilty of the offence
of murder although only single injury
was caused. (2) Even when the
intention or knowledge of the accused
may fall within Clauses (1) to (4) of
Section 300 of the IPC, the act of the
accused which would otherwise be
murder, will be taken out of the
purview of murder, if the accused's
case attracts any one of the five
exceptions enumerated in that section.
In the event of the case falling within
any of those exceptions, the offence
would be culpable homicide not
amounting to murder, falling within
Part 1 of Section 304 of the IPC, if
the case of the accused is such as to
fall within Clauses (1) to (3) of
Section 300 of the IPC. It would be
offence under Part II of Section 304 if
the case is such as to fall within
Clause (4) of Section 300 of the IPC.
Again, the intention or knowledge of
the accused may be such that only
2nd or 3rd part of Section 299 of the
IPC, may be attracted but not any of
the clauses of Section 300 of the IPC.
In that situation also, the offence
would be culpable homicide not
amounting to murder under Section
304 of the IPC. It would be an
offence under Part I of that section, if
the case fall within 2nd part of
Section 299, while it would be an
offence under Part II of Section 304 if
the case fall within 3rd part of Section
299 of the IPC. (3) To put it in other
words, if the act of an accused person
falls within the first two clauses of
cases of culpable homicide as
described in Section 299 of the IPC it
is punishable under the first part of
Section 304. If, however, it falls
within the third clause, it is
punishable under the second part of
Section 304. In effect, therefore, the
first part of this section would apply
when there is 'guilty intention,'
whereas the second part would apply
when there is no such intention, but
there is 'guilty knowledge'. (4) Even
if single injury is inflicted, if that
particular injury was intended, and
objectively that injury was sufficient
in the ordinary course of nature to
cause death, the requirements of
Clause 3rdly to Section 300 of the
IPC, are fulfilled and the offence
would be murder. (5) Section 304 of
the IPC will apply to the following
classes of cases: (i) when the case
falls under one or the other of the
clauses of Section 300, but it is
covered by one of the exceptions to
that Section, (ii) when the injury
caused is not of the higher degree of
likelihood which is covered by the
expression 'sufficient in the ordinary
course of nature to cause death' but is
of a lower degree of likelihood which
is generally spoken of as an injury
'likely to cause death' and the case
does not fall under Clause (2) of
Section 300 of the IPC, (iii) when the
act is done with the knowledge that
death is likely to ensue but without
intention to cause death or an injury
likely to cause death. To put it more
succinctly, the difference between the
two parts of Section 304 of the IPC is
that under the first part, the crime of
murder is first established and the
accused is then given the benefit of
one of the exceptions to Section 300
of the IPC, while under the second
part, the crime of murder is never
established at all. Therefore, for the
purpose of holding an accused guilty
of the offence punishable under the
second part of Section 304 of the IPC,
the accused need not bring his case
within one of the exceptions to
Section 300 of the IPC. (6) The word
'likely' means probably and it is
distinguished from more 'possibly'.
When chances of happening are even
or greater than its not happening, we
may say that the thing will 'probably
happen'. In reaching the conclusion,
the court has to place itself in the
situation of the accused and then
judge whether the accused had the
knowledge that by the act he was
likely to cause death. (7) The
distinction between culpable
homicide (Section 299 of the IPC)
and murder (Section 300 of the IPC)
has always to be carefully borne in
mind while dealing with a charge
under Section 302 of the IPC. Under
the category of unlawful homicides,
both, the cases of culpable homicide
amounting to murder and those not
amounting to murder would fall.
Culpable homicide is not murder
when the case is brought within the
five exceptions to Section 300 of the
IPC. But, even though none of the
said five exceptions are pleaded or
prima facie established on the
evidence on record, the prosecution
must still be required under the law to
bring the case under any of the four
clauses of Section 300 of the IPC to
sustain the charge of murder. If the
prosecution fails to discharge this
onus in establishing any one of the
four clauses of Section 300 of the
IPC, namely, 1stly to 4thly, the charge
of murder would not be made out and
the case may be one of culpable
homicide not amounting to murder as
described under Section 299 of the
IPC.(8) The court must address itself
to the question of mens rea. If Clause
thirdly of Section 300 is to be
applied, the assailant must intend the
particular injury inflicted on the
deceased. This ingredient could rarely
be proved by direct evidence.
Inevitably, it is a matter of inference
to be drawn from the proved
circumstances of the case. The court
must necessarily have regard to the
nature of the weapon used, part of the
body injured, extent of the injury,
degree of force used in causing the
injury, the manner of attack, the
circumstances preceding and
attendant on the attack. (9) Intention
to kill is not the only intention that
makes a culpable homicide a murder.
The intention to cause injury or
injuries sufficient in the ordinary
cause of nature to cause death also
makes a culpable homicide a murder
if death has actually been caused and
intention to cause such injury or
injuries is to be inferred from the act
or acts resulting in the injury or
injuries. (10) When single injury
inflicted by the accused results in the
death of the victim, no inference, as a
general principle, can be drawn that
the accused did not have the intention
to cause the death or that particular
injury which resulted in the death of
the victim. Whether an accused had
the required guilty intention or not, is
a question of fact which has to be
determined on the facts of each case.
(11) Where the prosecution proves
that the accused had the intention to
cause death of any person or to cause
bodily injury to him and the intended
injury is sufficient in the ordinary
course of nature to cause death, then,
even if he inflicts a single injury
which results in the death of the
victim, the offence squarely falls
under Clause thirdly of Section 300
of the IPC unless one of the
exceptions applies. (12) In
determining the question, whether an
accused had guilty intention or guilty
knowledge in a case where only a
single injury is inflicted by him and
that injury is sufficient in the ordinary
course of nature to cause death, the
fact that the act is done without
premeditation in a sudden fight or
quarrel, or that the circumstances
justify that the injury was accidental
or unintentional, or that he only
intended a simple injury, would lead
to the inference of guilty knowledge,
and the offence would be one under
Section 304 Part II of the IPC.
29. In the instant case the weapons which has been used in the
incident are usually carried by villagers so it cannot be said that
they had brought the said weapons from home to have caused the
incident. From bare reading of the prosecution story it could also
be said that it was after the quarrel between the deceased, the
appellant and other co-accused persons that the injuries were
inflicted and that too were not fatal except the injury on chest,
which broke the ribs, which could be attributed to fall from
bicycle, thus, in this backdrop, we are of the considered opinion
that the appellant at the best had knowledge that such blows may
cause death, but had no intention to cause death.
30. There is another aspect which is to be considered to depict
the intention of the appellant as has been raised by the State and
in that regard the reference be had of the judgment of the Hon'ble
Apex Court in the matter of Atul Thakur vs State Of Himachal
Pradesh reported in 2018 (2) SCC 496 in para 8, 9, 12, 13 of the
said judgment has been held as under:
8. Notably, the evidence on record plainly
establishes that a sudden fight took place
between the appellant and Hitesh Thakur
and in the heat of passion, the appellant
assaulted Hitesh Thakur causing serious
bodily injuries. There is no shred of
evidence, much less even a remote
suggestion that the appellant had assaulted
Hitesh Thakur with an intention to cause
his death. Though the High Court found the
appellant guilty, it has not held that the
bodily injuries caused by the appellant were
with an intention to cause the death of
Hitesh Thakur. The High Court overturned
the finding recorded by the Trial Court
regarding the nature of offence, principally
on the ground that the appellant gave
repeated knife blows to Hitesh Thakur and
Hitesh Thakur could not defend himself as
he was unarmed. Thus, the appellant was
found guilty of offence punishable under
Section 302 of IPC.
9. In other words, the controversy in these
appeals boils down to the nature of offence
and the sentence to be awarded in that
behalf. As aforesaid, the evidence on
record, as held by two Courts below and
with which finding we are in full
agreement, is that the appellant gave six
knife blows to Hitesh Thakur on the fateful
night to which he succumbed. Thus, it is a
case of homicidal death. However, there is
no evidence that the injuries inflicted by the
appellant were with an intention to cause
the murder of Hitesh Thakur. On the other
hand, the evidence clearly establishes that
the appellant assaulted Hitesh Thakur
without any premeditation. The whole
incident took place suddenly and, in the
heat of passion a sudden quarrel started as
Hitesh Thakur, while smoking, blew smoke
on the face of the appellant. Resultantly, the
appellant got enraged. He told him that he
was senior in age and thus should not
smoke in his presence much less blow the
smoke towards him. Then a sudden
physical fight started between them, in
which the appellant, in heat of passion,
gave six knife blows to Hitesh Thakur on
different parts of his body.
10. XXX
11. XXX
12. Taking overall view of the matter, the
facts of the present case warrant invocation
of Exception 4 to Section 300 of IPC. For,
it is a case of culpable homicide not
amounting to murder inasmuch as the
incident happened on account of sudden
fight between the friends who had gathered
for a drink party arranged at the behest of
Hitesh Thakur. There was no pre-mediation
and the act done by the appellant was in the
heat of passion without the appellant taking
any undue advantage or acted in a cruel
manner. The number of wounds caused by
the appellant, it is a well established
position, by itself cannot be a decisive
factor. The High Court committed manifest
error in being influenced by the said fact.
What is relevant is that the occurrence was
sudden and not premeditated and the
offender acted in the heat of passion. The
evidence supports the case of the appellant
in this behalf. The fact that the appellant
used weapon such as knife, is also not a
decisive factor to attract Section 302 of
IPC. Neither the use of a knife in the
commission of offence nor the factum of
multiple injuries given by the appellant
would deny the appellant of the benefit of
Exception 4.
13. Dealing with a somewhat similar
situation, in the case of Surain Singh Vs.
State of Punjab 1, this Court has restated
the settled legal position about the purport
of Exception 4 to Section (2017) 5 SCC
796 300 of IPC. Even in that case, the
accused had repeatedly assaulted the
deceased with a Kirpan and caused injuries
resulting into death. After restating the
legal position, the Court converted the
offence to one under Section 304 Part-II
instead of Section 302 IPC. Following the
same legal principle and keeping in mind
the factual position as unfolded, the view
taken by the Trial Court of convicting the
appellant for offence punishable under
Section 304 Part-II, is unexceptionable. The
Trial Court had observed thus:
"60. The evidence placed on record
by the prosecution, reveals that
deceased Hitesh and the accused
were having cordial relations since
long, knowing to each other and
were good friends. A party was
organized by the deceased in the
room of accused Mukesh and
deceased himself invited all the
accused to attend the party. In this
party, large quantity of alcohol was
consumed by them and suddenly an
altercation took place between
deceased Hitesh and accused Atul
Thakur as a result of which accused
Atul stabbed Hitesh, which resulted
into his death......
61. There is no doubt that Hitesh met
a homicidal death on the night
intervening 27/28.07/2011 at IGMC,
Shimla consequent to stab injury
inflicted by accused Atul Thakur.
The queston which arises for
consideration is whether this action
of the accused which caused the
death of Hitesh would amount to
murder or culpable homicide not
amounting to murder. It is an
admitted fact that there was no
enmity between the deceased and
this accused rather they were having
cordial relations. The fact that there
was a physical fight between the
deceased and the accused Atul,
cannot be denied because it has come
in the evidence of PW-11 Himanshu,
PW-12 Manoj Bansal and PW-1
Ashutosh that a physical fight has
taken place between them. In these
circumstances, this Court will have
to examine the prosecution evidence
whether the accused Atul had taken
an undue advantage or acted in a
cruel or inimical manner so as to
deprive him of the benefit of
exception 4 of Section 300. In fact,
the prosecution could not prove any
motive for killing the deceased by
the accused. The drinking session in
the room of the accused Mukesh
Thakur was by mutual consent. From
these circumstances, it can be held
that the incident in question took
place in a sudden fight in the heat of
possession. The next question which
arises for consideration is whether
the accused Atul did take an undue
advantage of the said fight or acted
in a cruel or inimical manner.
Keeping in view the fact that both
the deceased and accused had
consumed considerable amount of
alcohol which is established from the
evidence of the prosecution
witnesses, it cannot be altogether
ruled out that the stab injuries
inflicted were not with an intention
of taking undue advantage by the
accused Atul. It is probable that in an
inebriated condition the accused
inflicted the injuries because of the
physical fight between them.
Moreover, keeping in view the
nature of the injuries noticed by Dr.
Sandeep Kaushik in the MLC Ext.
PW-18/A, it is difficult to accept the
accused Atul Thakur intended to
cause the death of Hitesh or that the
injuries were so dangerous that they
would in all probability, cause death.
Nevertheless, the injuries were quite
serious, the accused can surely by
credited with the knowledge that if
an injury is caused with a knife on
the chest or abdomen of a person
then this act is likely to cause the
death of the victim.
62. Having considered the material
on record this Court is of the opinion
that the accused Atul Thakur can
only be found guilty of an offence
punishable under Section 304 Part II,
Indian Penal Code."
31. Thus, after considering the over all facts of the case we do
not find any shred of evidence, much less even a remote
suggestion that the appellant had assaulted the deceased with an
intention to cause his death, rather as per the medical evidence the
injuries caused to the deceased by the appellant were not fatal in
the ordinary course to had caused death, except for the chest
injury, which had broken the ribs, which may be due to fall from
the bicycle, which goes to show there was intention of the
appellant to kill the deceased, the case of culpable homicide
amounting to murder is made out against the appellant so as to
attract the punishment in terms of Section 302 of IPC.
32. Accordingly, we find substance in the arguments of the
learned counsel for the appellant that the conviction deserves to
be converted to Section 304 part II of IPC. As the appellant has
already undergone the actual jail incarceration of 9 years, 9
months and 16 days and the incident is of the year, 2012, this
Court deems it fit to convert to the period of sentence to Ten years
R.I. Appellant shall be entitled to benefit of Section 428 Cr.P.C.
33. Resultantly, the impugned judgment dated 18.07.2014
passed by learned Second Additional Sessions Judge, District
Guna (MP) in Sessions Trial No.341 of 2012 is altered to the
extent where appellant has been held guilty under Section 302 of
the IPC, instead the appellant shall be treated to be convicted
under Section 304 part II and the jail sentence shall be treated to
be one already undergone. If presence of appellant in custody is
not required in any other matter, he be released forthwith.
34. The appeal is partly allowed to the extended period above.
35. CC as per rules
(Rajendra Kumar IV) (Milind Ramesh Phadke)
Judge Judge
chandni/- 30/05/2024 30/05/2024
CHANDNI
NARWARIYA
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
2.5.4.20=4a0af498d89b2d94b5abcc1b4614d98feabd8b78228e0ec6e
ab9a0bd4e622c09, postalCode=474001, st=Madhya Pradesh,
serialNumber=8C306C586AAA43D19976F07886865F6FAC4A246EEE6
BCCD256ACDFCE3DCF944F, cn=CHANDNI NARWARIYA
Date: 2024.06.01 14:15:37 +05'30'
