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2009 DIGILAW 533 (MP)

VYANKAT @ BANKAT s/o MANGILAL v. STATE OF M. P.

2009-04-22

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2009
JUDGMENT : S. L. KOCHAR, J. 1. The appellants Vyankat and Balu have filed this appeal against their conviction under section 302/34 of the Indian Penal Code, sentenced to R.I for life with fine of Rs. 3,000/-, each and, in default of payment of fine, both shall suffer additional R.I. for one-one year respectively, passed by IV Additional Sessions Judge, Ratlam (M.P.) in S.T. No. 123/2004 vide judgment dated 30-11-2005. 2. According to the prosecution case, Raju @ Radheshyam (P.W.1) had gone along with his brother Jagdish to see a 'Barat Procession' near the house of Dhannaji Bajaj on 22-4-2004 in the night at 3.30 a.m. Deceased Jagdish was dancing in the Barat Procession and when procession reached at Rogi Devi square, appellants objected dancing of complainant Raju (P.W.1) and his brother deceased Jagdish, on which there was exchange of abuse between them and appellant Balu caused a fist blow on the face of Raju. Balu also caught hold of the neck of Raju whereupon Jagdish tried to save Raju, at that juncture, appellant Balu left Raju and caught hold of Jagdish, thereafter, appellant Venkat took out a knife and dealt a blow causing injury on the chest. The incident was witnessed by Sattu and other villagers. F.I.R. (Ex-P/7) was lodged on the same day i.e. on 22-4-2004 by P.W. 1 Raju. Police prepared the inquest report (Ex-P/3) and spot map (Ex-P/4). Dead body of the deceased was sent for post-mortem examination, which was conducted by Dr. Chandraprakash Sharma (P.W.5), who issued post-mortem report (Ex-P/11). On completion of investigation, appellants were charge-sheeted for commission of offence under section 302/34 of the Indian Penal Code. 3. Appellants denied the charges and pleaded innocence, therefore, put to trial. The learned trial Court after examining the prosecution witnesses and hearing both the parties, convicted and sentenced the appellants as indicated hereinabove. 4. Learned counsel for the appellants has submitted that conviction of appellant Balu for murder with the aid of section 34 of the Indian Penal Code is not proper and against appellant Vyankat @ Bankat offence at the most would fall under section 304 (Part-1) of the Indian Penal Code because incident occurred all of a sudden and in a sudden quarrel, only one blow was struck by appellant Vyankat to deceased, which proved fatal. 5. 5. On the other hand, learned counsel for the State has supported the impugned judgment and finding arrived at by the learned trial Court. 6. Having heard the learned counsel for the parties and after perusing the entire record of the trial Court, we find substance in the argument of learned counsel for the appellants. 5. Admittedly, complainant party and appellants were not having any previous enmity and incident occurred all of a sudden in a Barat Procession where complainant Raju and his brother Jagdish were dancing. During the course of dance, appellants objected the participation of Raju and Jagdish on which sudden quarrel ensued and in the said quarrel, there was a sudden fight between both the parties in which Raju also sustained injuries. His medical report is Ex-P/13, proved by Dr. Chandraprakash Sharma (P.W.5). It is also clear that there was no premeditation or preplan for commission of murder of Jagdish. Appellant Vyankat caused only one injury by knife in a heat of passion during the course of sudden quarrel, which converted into sudden fight and he did not take any undue advantage, therefore, in these circumstances, offence would fall under section 300 (Exception-4) of the Indian Penal Code punishable under section 304(Part-I) of the Indian Penal Code, culpable homicide not amounting to murder. 6. It is trite that in a sudden quarrel the accused cannot be punished with the aid of section 34 of the Indian Penal Code, therefore, appellant Balu would be liable only for commission of offence under section 323 of the Indian Penal Code. 7. In the result, this appeal is allowed in part. Conviction and sentence of both the appellants as passed by the learned trial Court are hereby set aside, instead thereof appellant No. 1 Vyankat @ Bankat is convicted under section 304 (Part-I) of the Indian Penal Code, sentenced to R.I. for seven years with fine of Rs. 4,000/-, in default of payment of fine, he shall suffer additional R.I. for one year and appellant No. 2 Balu is convicted under section 323 of the Indian Penal Code sentenced to the period already undergone (about 8 months) with fine of Rs. 1,000/-, in default of payment of fine, he shall suffer additional R.I. for one month. 8. Learned counsel for the appellants has submitted that appellant Balu has already deposited fine amount of Rs. 3,000/-. 1,000/-, in default of payment of fine, he shall suffer additional R.I. for one month. 8. Learned counsel for the appellants has submitted that appellant Balu has already deposited fine amount of Rs. 3,000/-. If this is so, the learned trial Court is directed to refund excess amount of fine of Rs. 2,000/- to appellant No. 2 Balu. Appellant Balu is on bail. His Bail bond and surety bond shall stand discharged.