Madhya Pradesh High Court
Rulesingh @ Totiya vs The State Of Madhya Pradesh on 21 February, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:4671
1 CRA-726-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 21st OF FEBRUARY, 2025
CRIMINAL APPEAL No. 726 of 2017
RULESINGH @ TOTIYA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sachin Parmar, learned counsel for the appellant.
Shri Bhuwan Gautam, learned Government Advocate for the
respondent / State.
ORDER
Per: Justice Vivek Rusia
Despite hearing on the application for suspension of jail sentence and
grant of bail (I.A. No.2413/2025) with the consent of parties, this appeal is
heard finally.
02. The present Criminal Appeal has been filed under Section 374 of
the Code of Criminal Procedure, 1973 being aggrieved by the judgment of
conviction and sentence dated 20.12.2016 passed by the Sessions Judge,
District - Barwani in Sessions Trial No.100101/2014, whereby the present
appellant has been convicted for commission of offence punishable under
Section 302 of the Indian Penal Code and sentenced to undergo Life
Imprisonment along with fine of Rs.10,000/-. With default clause to further
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undergo 02 years' rigorous imprisonment.
03. As per prosecution story, on 20.05.2014 near about 6:00 pm. on a
petty issue present appellant started abusing his wife, thereafter, gave blow
by means of stone, which was lying there on the head of Ringu Bai
(deceased), due to which she sustained injuries. Thereafter, the matter was
reported to the police by the father of deceased namely Nanata. The deceased
was taken to the District Hospital, Barwani, where doctor found the injuries
grievous in nature, therefore, Section 307 of the IPC was added. Later on,
she died on 23.05.2014 and charge-sheet was filed under Section 294, 506
and 302 of the IPC after completing the investigation before the Magistrate.
04. The trial was committed to the Sessions Court, by which charge
under Section 302 of the IPC was framed against the present appellant which
he denied and pleaded for trial. After appreciating the evidence that came
on record, learned trial Court convicted the present appellant for the
aforementioned offence. Hence, the present criminal appeal is before this
Court.
05. Learned counsel for the appellant submits that he is not assailing
the finding recorded by the trial Court on various issues, he is only
challenging the conviction of the appellant under Section 302 of the IPC.
According to him, the dispute occurred suddenly between husband and wife
on a petty issue and it was not a pre-planned murder. Learned counsel
submits that even if the entire prosecution story is believed to be as it is, the
offence will not travel more than 304 - II of the IPC, for which he had
already undergone more than 08 years of actual jail sentence, therefore, the
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appeal may be partly allowed by altering the conviction from 302 to 304 Part
- II of the IPC as the appellant has no criminal record.
06. Learned Government Advocate for the respondent / State
opposes the prayer by submitting that after giving blow to the deceased by
means of stone, the appellant ran away. He should have taken her to the
hospital for treatment, therefore, conviction under Section 302 of the IPC is
justified. Hence, criminal appeal is liable to be dismissed.
07. We have heard learned counsel for the parties and perused the
record.
08. We have examined the statement of Banu Bai (PW-2) who was
present on the spot and the same reveals that both appellant and deceased
were going to attend a function and on the way conversation started out of
anger, the appellant assaulted the deceased by means of stone which was
lying there. Hence, it is not a of pre-planned murder and appellant assaulted
the deceased out of anger and ran away from the spot. Medical treatment was
not given to the deceased well within time. Therefore, in our considered
opinion, the offence will not travel more than 304 Part - II of the IPC and the
appellant is entitled to get the benefit of Exception - IV of Section 300 of the
IPC.
09. The Apex Court in the case of Gurpal Singh v/s The State of
Punjab reported in AIR 2017 SC 471 has held as under:-
"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
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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."
10. The Apex Court in the case of Arjun & Another 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:
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"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 n 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'."
11. The Hon'ble Supreme Court in the case of Prabhakar Vithal
Gholve v/s State of Maharashtra reported in AIR 2016 SC 2292 has laid
down that if the assault on the 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 S. 302 and
altered to one under Section 304 Part-I of IPC. In Sikandar Ali v/s State of
Maharashtra reported in AIR 2017 SC 2614 , the Court altered the conviction
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6 CRA-726-2017
u/s 302 IPC to one u/s 304 part-2 IPC in the following circumstances:
"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."
12. The Apex Court in the case Madhavan & Others State of Tamil
Nadu reported in AIR 2017 SC 3847 has held as under:-
"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,
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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/s 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:-
"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/s 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
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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
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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 aforesaid judicial pronouncement by the Apex
Court as well as this Court, the present Criminal Appeal is partly allowed. So
far as the culpability of the appellant is concerned, the same is maintained
but the conviction is altered to Section 304 Part II of the IPC instead of
Section 302 of the IPC and accordingly, the sentence is reduced from Life
Imprisonment to the period already undergone and the fine amount is hereby
maintained. The appellant be released from jail after depositing the fine
amount, if he is not required to keep in jail in any other case.
Record of the trial Court be sent back along with a copy of this
judgment.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
Ravi
