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Madhya Pradesh High Court · body

2015 DIGILAW 929 (MP)

Shankarlal v. State of M. P.

2015-09-03

D.K.PALIWAL, P.K.JAISWAL

body2015
JUDGMENT Paliwal, J. -- 1. This criminal appeal has been preferred under section 374 of CrPC. Being aggrieved with the conviction recorded in S.T. No.182/2001 by III Additional Sessions Judge, Ratlam whereby the appellants Shankerlal, Vinod, Sanjay, Kishore, Ravi have been convicted under section 302 of IPC and sentenced to undergo life imprisonment and to pay fine of Rs.500/-, in default of payment of fine aforesaid appellants has to undergo six months RI. Appellant Munnibai has been convicted under section 302 read with section 149 of IPC and sentenced to undergo life imprisonment and to pay fine of Rs.500/-, in default of payment of fine appellant Munnibai has to undergo six months RI. Appellants have also been convicted under section 148 of IPC and sentenced to undergo one year RI and to pay fine of Rs.100/-. In default of payment of fine appellants has to undergo one month RI. 2. Brief facts of prosecution case are that on 30.3.2001 at about 11:30 a.m. to 12:00 noon son of Ishwarlal and nephew of Vinod quarreled with each other. Ishwarlal intervened and separated them. After some time Shankar armed with iron pipe, Vinod armed with wooden stick, Sanjay armed with Farsa, Ravi and Kishore armed with iron pipe, Munnibai having a piece of stone came. Shankarlal asked Ishwarlal why he shouted on his grandson, he will not let him alive. Then they started beating Ishwarlal causing injuries on his jaw, face, head, back, chest and nose. Jitendra, Satyanarayan, Sohanlal saved them. Sohanlal also received injury during the incident. Ishwarlal was taken to Hospital in a injured condition. Report was lodged upon which Crime No.150/2001 has been registered at P.S. Manak Chowk, Ratlam. Ishwarlal and Sohanlal were sent for treatment to Hospital, Ishwarlal died. On receipt of confirmation of death of Ishwarlal, merg intimation was recorded and Panchanama of dead-body Ex.P-25 was prepared and dead-body was sent for postmortem examination. During investigation B.P. Chouhan (PW12) recorded the statement of witnesses. Prepared the site map and collected the simple and blood stained earth. Appellants were arrested and weapon of offence has been seized from their possession. Seized articles were sent for examination by FSL. Human blood were found on the seized weapon and on clothes of the deceased. After completion of investigation charge-sheet has been filed. Prepared the site map and collected the simple and blood stained earth. Appellants were arrested and weapon of offence has been seized from their possession. Seized articles were sent for examination by FSL. Human blood were found on the seized weapon and on clothes of the deceased. After completion of investigation charge-sheet has been filed. After committal learned trial Court framed the charges and explained to appellants who have abjured their guilt and claimed trial. Their defence was that they have been falsely implicated. The prosecution has examined as many as 10 witnesses to prove its case and in defence none has been examined. After having scanned the evidence and material learned trial Court convicted the appellants and sentenced them as indicated in para 1 of this Judgment. Being aggrieved this appeal has been preferred. 3. Learned counsel for the appellants submit that learned trial Court has not properly appreciated the evidence and material available on record and wrongly convicted the appellants. The trial Court has over looked the material omissions and contradictions in the statement of Jitendra (PW/3), Satyanarayan (PW5), Sohanlal (PW9), Shuganabai (PW10). It is contended that medical evidence also does not support the prosecution case. No independent witness have been examined though available. It is further submitted that the appellant Ravi was juvenile at the time of alleged incident, hence appellant Ravi ought to have been tried by the Juvenile Justice Board. It is further submitted that the learned trial Court failed to consider that the incident took place all of sudden without premeditation on account of quarrel taken place between the children while playing therefore the intention of the appellants was not to cause death of the deceased. 4. Per contra, on behalf of the respondent/State Deputy Government Advocate supported the judgment of learned trial Court and submitted that Jitendra (PW3), Satyanarayan (PW5), Sohanlal (PW9), Shugnabai (PW10) have categorically stated that appellants came armed with weapons and gave beating to Ishwarlal. Testimony of aforesaid witness is consistent and cogent and also corroborated by the medical evidence, hence the trial Court rightly convicted the appellants. 5. In the light of the submissions advanced on behalf of the learned counsel for the parties, we have carefully scrutinized the evidence and material available in record. Jitendra (PW3) says that at about 12:15 noon he was sitting in his Mohallah. 5. In the light of the submissions advanced on behalf of the learned counsel for the parties, we have carefully scrutinized the evidence and material available in record. Jitendra (PW3) says that at about 12:15 noon he was sitting in his Mohallah. Son of Ishwar and nephew of Vinod quarreled with each other. Ishwar separated them, thereafter Shankar, Ravi and Kishore armed with wooden stick, Sanju armed with iron pipe, Vinod armed with Dhariya and Munnibai armed having a piece of stone came and started beating Ishwar. Ishwar received injuries on his jaw, both legs, head, back and chest. Ishwar was taken to Hospital, thereafter he lodged the report Ex.P-3. Satyanarayan (PW5), Sohanlal (PW9), Shugunabai (PW10) in one voice deposed that son of Ishwar and nephew of Vinod were quarreling. Ishwar separated them. Thereafter Shankar, Vinod, Kishore, Ravi and Munnibai armed with iron pipe, piece of wood, piece of stone gave beating to Ishwar on his jaw, head, chest and back. Shugna Bai received injuries. Sohanlal sustained injury on his finger. Ishwar was taken to Hospital. 6. Shugnabai is the sister-in-law of deceased, her presence at the time of incident appears to be natural. Shuganbai remained firm on the material point in her cross-examination. Though she has stated that she also received injury but prosecution has not proved that Shugnabai sustained injury. The testimony of Shugnabai is fully corroborated by medical evidence and also by the independent witness Jitendra (PW3), Satyanarayan (PW5), Sohanlal (PW9) and Shugunabai (PW10). 7. Satyanarayan (PW5) denied the suggestion that at the time of incident Shankarlal was on duty in Nagar Nigam. He further denied the suggestion that Ravi and Kishore were present in shop at the time of incident. Presence of this witness has been challenged but he denied that he was not present at the spot and giving false statement. No suggestion has been given in cross-examination to this witness that he has any grudge against the appellants or he is interested with the family members of the deceased. This witness seems to be an independent witness. Testimony of this witness is corroborated on material point with the testimony of Shugnabai (PW10) and also by the medical evidence. 8. Jitendra(PW3) lodged the report. Testimony of this witness is corroborated by Satyanarayan (PW5), Sohanlal (PW9) and Shugunabai (PW10) as well as by medical evidence. This witness seems to be an independent witness. Testimony of this witness is corroborated on material point with the testimony of Shugnabai (PW10) and also by the medical evidence. 8. Jitendra(PW3) lodged the report. Testimony of this witness is corroborated by Satyanarayan (PW5), Sohanlal (PW9) and Shugunabai (PW10) as well as by medical evidence. No suggestion has been given to this witness in cross-examination that he was not present at the spot. Jitendra (PW3) in para 8 has admitted that Ravi and Kishore runs a cycle shop at Amrath Sagar Bagicha and Munnibai and Shankarlal are the employees of Nagar Nigam but denied that on the date of incident Munnibai and Shankarlal were on duty. He denied that accused Kishore and Ravi were present in their shop. This witness has been cross-examined at length. On the material points the credibility of this witness has not been shaken in his cross-examination. 9. Sohanlal (PW9) belongs to Village Pir Jhalar, P.S. Barnagar, District Ujjain. His presence on the date of incident in the house of Ishwar has not been challenged in his cross-examination. The testimony of this witness is fully corroborated by Satyanarayan (PW5) Jitendra (PW3) and Shugunabai (PW10) as well as by medical evidence.He remained firm in his cross examination and nothing adverse has come which makes his testimony doubtful. 10. Considering that the testimony of Jitendra (PW3), Satyanarayan (PW5), Sohanlal (PW9) and Sugnabai (PW10) is corroborated by each other on material particulars their statement also finds corroboration from the postmortem report, the presence of these witness is fully established, they stood firm in their cross-examination, nothing has been come out in their cross-examination to make a dent in their reliability, their evidence is consistent and cogent in our opinion there is no reason to doubt the testimony of the aforesaid witness. 11. In view of the aforesaid discussion, in our opinion prosecution has succeeded in proving that the appellants are responsible for causing the death of Ishwar. 12. The learned counsel appearing on behalf of appellants contended that case of the appellants squarely falls within the Exeption 4 to section 300 of IPC. It is submitted that Jitendra (PW3), Satyanarayan (PW5), Sohanlal (PW9) and Sugnabai (PW10) have categorically stated that son of Ishwar and grandson of Shankarlal quarreled with each other. The deceased pacified them and separated them, thereafter appellants came and gave beating to Ishwar. It is submitted that Jitendra (PW3), Satyanarayan (PW5), Sohanlal (PW9) and Sugnabai (PW10) have categorically stated that son of Ishwar and grandson of Shankarlal quarreled with each other. The deceased pacified them and separated them, thereafter appellants came and gave beating to Ishwar. Thus, it shows that the incident took place all of a sudden and it was not pre planned. However learned counsel for the respondent/ State opposed the aforesaid submission and contended that the injuries has been caused with an intention to cause death hence the learned trial Court has rightly held appellants guilty under section 302 of IPC. 13. Apex Court in the case of Surinder Kumar v. Union Territory [ (1989)2 SCC 217 ], has observed that 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. In the case of Ghappo Yadav and others v. State of M.P., reported as (2003)3 SCC 528 , the apex Court held that in a heat of passion there must be no time for the passion to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to section 300 IPC. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite: “10. .... Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite: “10. .... 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 Indian Penal Code. 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 have 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 a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”. “11. .... After the injuries were inflicted the injured had fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused-appellants had come prepared and armed for attacking the deceased. .... This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner. That being so, Exception 4 to section 300 IPC is clearly applicable. (Emphasis supplied) 14. .... This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner. That being so, Exception 4 to section 300 IPC is clearly applicable. (Emphasis supplied) 14. In the case of Sukbhir Singh v. State of Haryana, reported as (2002)3 SCC 327 , the appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court this Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 to section 300, IPC. In cases where after the injured had fallen down, the appellant-accused did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. Hon’ble the Supreme Court observed : “19. .... All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of section 300 IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with bhala caused injuries at random and thus did not act in a cruel or unusual manner.” (Emphasis supplied) 15. In Kalu Ram v. State of Rajasthan [ (2000)10 SCC 324 ], apex Court in paragraph 7 has held as under : “But, then, what is the nature of the offence proved against him ? It is an admitted case that the appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige, he poured kerosene on her and wanted her to light the matchstick. It is an admitted case that the appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige, he poured kerosene on her and wanted her to light the matchstick. When she failed to do so he collected the matchbox and ignited one matchstick but when the flames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have altered his senses to bring water in an effort to rescue her. We are inclined to think that all that the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore, we are persuaded to bring down the offence from first degree murder to culpable homicide not amount to murder.” 16. Taking into consideration that incident took place on account of quarrel took place between the minor son of deceased and minor grandson of Shankar Lal/deceased and the statement of Dr. Ashok Harare who examined the injured/Ishwar finds 3 contusions and 4 lacerated wounds only. However, Dr. D.C. Boriwal (PW2) who conducted postmortem has found 15 injuries caused collectively by six persons, the injuries has not been caused in cruel or unusual manner, assault was made without premeditation hence we hold that appellants are entitled benefit of Exception 4 to section 300 of IPC. 17. It is submitted on behalf of appellant Ravi that he was aged about 17 years at the time of commission of incident and as per the provisions of Juvenile Justice (Care and Protection) Act, 2000, he was juvenile, hence he would have been tried before the Juvenile Justice Board. Hence, conviction and sentence of Ravi is vitiated. 17. It is submitted on behalf of appellant Ravi that he was aged about 17 years at the time of commission of incident and as per the provisions of Juvenile Justice (Care and Protection) Act, 2000, he was juvenile, hence he would have been tried before the Juvenile Justice Board. Hence, conviction and sentence of Ravi is vitiated. The learned counsel on behalf of respondent/State submits that such issue can not be raised for the first time in appeal it had been raised before the trial Court and it was not raised hence it can not be considered at this stage. 18. So far the question of juvenility of appellant Ravi is concerned the Apex Court in the case of Vijai Singh v. State of Delhi [ (2012)8 SCC 763 ], has held that claim of juvenility may be raised at any stage, even after final disposal of the case. The delay in raising the juvenility cannot be a ground for rejection and claim can be raised in appeal, even if not pressed before trial Court. In Abuzar Hossain v. State of West Bengal [(2013)1 SCC (Cr.) 83], Hon’ble apex Court also held that the Court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in 2000 Act are not defeated by hyper-technical approach and the persons who are entitled to get benefits of 2000 Act get such benefits. The Courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability. 19. The arrest memo of Ravi s/o Shankarlal reveals that his age has been mentioned as 17 years. Thus according to prosecution version Ravi was aged 17 years on the date of alleged incident. The Juvenile Justice (Care and Protection) Act, 2000 came into force from 1.4.2001 The appellant Vijai according to prosecution was 17 years old on the date of his arrest on 18.9.2001 and the offence has been committed on 30.3.2001 hence he could not be tried along with the other appellants in criminal Court. 20. The Juvenile Justice (Care and Protection) Act, 2000 came into force from 1.4.2001 The appellant Vijai according to prosecution was 17 years old on the date of his arrest on 18.9.2001 and the offence has been committed on 30.3.2001 hence he could not be tried along with the other appellants in criminal Court. 20. Appellant/Ravi remained under custody for more than one and half year, we do not think it proper to remand the case for trying by the Juvenile Justice Board. Vijai Singh v. State of Delhi [ (2012)8 SCC 763 (Relied on)]. 21. In view of aforesaid discussion, this appeal is partly allowed. The conviction and sentence passed against the appellants/Shankarlal, Vinod, Sanjay, Kishore and Ravi under sections 148 and 302 of IPC and conviction and sentence passed against the appellant/Munnibai under sections 148, 302/149 of IPC is hereby set aside and instead of that appellants are convicted under sections 304 Part II read with 149 and 148 of IPC. Appellants/Shankarlal, Vinod, Sanjay, Kishore are sentenced to undergo 10 years of RI with fine of Rs.500/- under section 304 Part II of IPC and in default of payment of fine amount appellants/Shankarlal, Vinod, Sanjay, Kishore shall further undergo one month RI and under section 148 of IPC, they are sentenced to undergo one year RI and fine of Rs.100/- and in default of payment of fine amount, they shall undergo 15 days RI. 22. Considering that appellant/Munnibai is a woman and no injury has been attributed to Munnibai, hence she is sentenced to undergo 7 years RI with fine of Rs.500/-, in default of payment of fine amount appellant/Munnibai shall further undergo one month RI. 23. Appellant/Ravi was juvenile at the time of alleged incident and he remained in custody for about one and half year, hence we hold that it would not be proper to remand his case to the Juvenile Justice Board, thus, he is sentenced to the period already undergone by him. 24. Appellants/Kishore, Vinod, Sanjay and Shankarlal have served the sentence of more than 10 years, hence they shall be released forthwith, if not required in any other case. Appellant/Munnibai is on bail. She is directed to surrender and serve out the remaining jail sentence. 25. Accordingly, this Criminal Appeal No.1290/2002 stands disposed.