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2018 DIGILAW 595 (MP)

Babulal v. State of M. P.

2018-07-05

P.K.JAISWAL, S.K.AWASTHI

body2018
JUDGEMENT Awasthi, J. --1. This appeal under section374 of the Code of Criminal Procedure, 1973 (for short “The Code”) has been preferred by the appellant against judgment of conviction dated 28.5.2010, passed by Second Additional Sessions Judge, Shujalpur, District Shajapur in Sessions Trial No. 285/2009, by which the appellant has been convicted for offence under section 302 of IPC and sentenced to undergo life imprisonment with a fine of Rs.1,000/- and usual default stipulation. 2. The facts necessary to be stated for disposal of the instant appeal are that on 3.9.2009 at about 3.30 p.m., complainant Lakhanlal was doing rectification work of electricity in his house, at that time he heard the voice of his neighbour, appellant- Babulal, who was hurling abuses, when he came outside and saw that Babulal was abusing Kamlabai, the mother of the complainant. When Kamlabai stopped Babulal from hurling abuses, he gave a ‘latti’ blow at her head and as a result she sustained injuries, squatted on the ground and succumbed on the spot. The accused/appellant escaped from the place of occurrence. 3. FIR of the incident was lodged by complainant Lakhanlal at police-station Shujalpur, district Shajapur. Police registered a case for offence under section 302 of IPC. Sub-Inspector Sunita Mandloi went to the spot and she prepared ‘lash panchnama’ of deceased Kamlabai and the dead body was sent to the hospital for postmortem. Dr. Ashish Dubey(PW11) conducted post-mortem and found that the deceased died due to fracture sustained by her on parietal bone. During the investigation, Investigation Officer Upmanyu Saxena(PW12) reached the spot and he prepared spot map (Ex.P-5) and recorded the statements of the witnesses. The appellant was arrested and on the basis of his disclosure statement (Ex.P-8) a ‘latti’ was recovered vide recovery memo (Ex.P-9). On completion of investigation, charge-sheet was filed before the Judicial Magistrate First Class, Shajapur, who committed the case to the Court of Sessions and ultimately, it was transferred to Second Additional Sessions Judge, District Shajapur. 4. The appellant abjured his guilt and took a plea that his land is situated nearby the land of complainant and complainant wanted to take his land therefore, a false case was lodged against him. In defence he examined Ramsingh (DW1). The trial Court, after considering the evidence adduced by the parties, convicted the appellant and sentenced him as mentioned herein-above. 5. In defence he examined Ramsingh (DW1). The trial Court, after considering the evidence adduced by the parties, convicted the appellant and sentenced him as mentioned herein-above. 5. The learned counsel for the appellant has submitted that witnesses of the case did not support the prosecution version. The statement of the witnesses are self-contradictory and there are many variations, contradictions omissions in their statement. Despite of that the trial Court has committed error in believing their testimony. In these circumstances, counsel prayed for setting aside the conviction and sentence. 6. Per contra, learned public prosecutor appearing on behalf of the respondent/State has supported the impugned judgment and order of conviction by submitting that the learned trial Court, on proper evaluation of evidence, has recorded conviction and that the same does not call for any interference. 7. We have heard learned counsel for the parties and perused the record. 8. First of all, it is to be considered as to whether, death of the deceased Kamlabai was homicidal in nature or not? In this regard, evidence provided by Doctor Ashish Dubey (PW11), is important, who conducted autopsy of the dead body of the deceased Kamlabai and gave a report Ex.P-10. He found following injuries on the body of the deceased: 1. Hemotoma approximately 6cm in diameter over the right parietal region. 2. Two abrasions of 0.3 x 0.3 cm size each over contral aspect of right elbow. On opening the body of the deceased, a depressed fracture was found on the right side of parietal bone extending towards occipital region. Clotted blood was found on the skull and at various blood vessels. According to Dr. Dubey, death was caused in coma stage due to injuries sustained in brain and the injuries were sufficient enough to cause her death in the natural course of life. There is nothing on record to show that the injuries sustained by the deceased were caused by herself or sustained due to any accident, therefore, it is concluded that the death of the deceased person was homicidal in nature. 9. In the present case, eye witnesses Lakhanlal (PW1), Puja (PW4), Rabul (PW5) and Badri Prasad (PW6) were examined before the Court. It is also stated that complainant Lakhanlal has lodged FIR (Ex.P-1) at police-station Shujalpur. 9. In the present case, eye witnesses Lakhanlal (PW1), Puja (PW4), Rabul (PW5) and Badri Prasad (PW6) were examined before the Court. It is also stated that complainant Lakhanlal has lodged FIR (Ex.P-1) at police-station Shujalpur. The incident took place at 3.30 p.m. whereas the F.I.R was lodged at 17.10 hrs., and the police-station was 1 km., away from the spot. According to these eye witnesses, the accused Babulal came to the house of Kamlabai and he complained that her nephew was grazing their oxen on his land. After that he hurled abuses on Kamlabai and gave a ‘latti’ blow due to which she sustained injury on her hand and head and fell down on the ground. At that time, Badri Prasad (PW6), the husband of the deceased was also present on the spot. Thereafter, the accused escaped form the place of incident. Kamalabai was brought to the hospital and after examination, she was declared dead. The statement made by these witnesses were duly corroborated by medical evidence as put forth by Dr. Ashish Dubey (PW11). Hence, it is proved that the appellant-Babulal gave a single blow of ‘latti’ on the head of deceased Kamalabai as a result she sustained injuries and succumbed on the spot. 10. Learned counsel for the appellant has drawn our attention to the statement of the aforesaid prosecution witnesses and submitted that the appellant was not having enmity with the deceased and in a sudden quarrel he administered ‘latti’ blow on the head of the deceased Kamlabai causing her death. Thus injuries to the deceased was caused by the appellant without premeditation. Under these circumstance the case of the appellant would fall under section 304 of IPC, culpable homicide not accounting to murder. Hence, he prayed for alteration of conviction. Counsel further submitted that the accused/appellant is in jail since 28.5.2010 and he has completed more than 8 years of jail sentence, therefore he prayed that the appellant be convicted for offence under section 304(II) of IPC and sentence to the period which he has already suffered. 11. Hence, he prayed for alteration of conviction. Counsel further submitted that the accused/appellant is in jail since 28.5.2010 and he has completed more than 8 years of jail sentence, therefore he prayed that the appellant be convicted for offence under section 304(II) of IPC and sentence to the period which he has already suffered. 11. Though the learned counsel for the respondent/State opposed the aforementioned statement and submitted that no case is made out to interfere in the quantum of punishment much less by taking recourse to exception under section 4 of 300 IPC, hence this Court upheld the conviction for offence under section 302 of IPC, however, we find considerable force in the statement put forth by learned counsel for the appellant. 12. In the case of Surinder Kumar v. Union Territory, Chandigarh, reported in [ (1989)2 SCC 217 ], the Hon’ble apex Court has held as follows: “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 unpre- meditated 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. In the present case, the deceased and PW2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they found that the appellant was disinclined to handover possession of the kitchen, PW2 quarrelled and uttered filthy abuses in the presence of the appellant’s sister. In the present case, the deceased and PW2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they found that the appellant was disinclined to handover possession of the kitchen, PW2 quarrelled and uttered filthy abuses in the presence of the appellant’s sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW2 and his deceased brother on the other. In the course of this heated argument it is the appellant’s case that PW2 took out a knife from his pant pocket. This part of the appellant’s case seems to be probable having regard to the antecedents of PW2. It is on record that PW2 was convicted at Narnaul on two occasions under section 411, IPC and his name was registered as a bad character at the local police station. It was presumably because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW4. When the appellant found that PW2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to PW2 it would appear that PW2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant. It further seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the 5th rib about 2" below the nipple, It may incidentally be mentioned that the Trial Court came to the conclusion that the injury found on the neck of PW2 was a self inflicted wound and had therefore acquitted the appellant of the charge under section 307, IPC, against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that PW2 sustained the injury in the course of the incident. We have, however, proceeded to examine this matter on the premise that PW2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter’s sister, tempers ran high and on PW2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW2 and inflicted a simple injury on his neck. It would be reasonable to inter that the deceased must have intervened on the side of his brother PW2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under section304, Part I, IPC and direct him to suffer rigorous imprisonment for 7 years.” 13. In the case of Ghapoo Yadav and others v. State Of M.P., reported as 2003(2) JLJ 166 = (2003)3 SCC 528 . “10. The Fourth Exception of section300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ‘sudden fight’ implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. 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 IPC. 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. 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. In the case at hand, out of the seven injuries, only injury No. 2 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The infliction of the injuries, and their nature proves the intention of the accused appellants, but causing of such injuries cannot be termed to be either in a cruel or unusual manner for not availing the benefit of Exception 4 to section 300 IPC. After the injuries were inflicted the injured has fallen down, but there is no material to show that thereafter any injury was inflicted when he was in helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physicals. It is not the case of the prosecution that the accused appellants had come prepared and armed for attacking the deceased. The previous disputes over land do not appear to have assumed characteristics of physical combat. 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 cruel or unusual manner. That being so, Exception 4 to section 300 IPC is clearly applicable. The fact situation bears great similarity to those in Sukhbir Singh v. State of Haryana [ (2002)3 SCC 327 ]. Appellants are to be convicted under section304 Part I, IPC and custodial sentence of 10 years and fine as was imposed by the trial Court would meet the ends justice. The appeal is allowed to the extent indicated above.” 14. The fact situation bears great similarity to those in Sukhbir Singh v. State of Haryana [ (2002)3 SCC 327 ]. Appellants are to be convicted under section304 Part I, IPC and custodial sentence of 10 years and fine as was imposed by the trial Court would meet the ends justice. The appeal is allowed to the extent indicated above.” 14. In the context of the aforesaid decisions of the Hon’ble apex Court, we find that in the present case also, there was no previous enmity between the deceased and the appellant. The incident has taken place all of a sudden and there was no premeditation in the commission of the offence. Though the doctor has noted fracture on the frontal bone, however, the eye witnesses account which mentioned a single blow having been inflicted on the deceased cannot be given a go by. Hence during the incident, the appellant had not acted in a cruel or unusual manner, therefore, the appellant only be said to be guilty under section 304(II) of IPC. It emerges from record that the appellant was incarcerated on 6.9.2009 and he was granted bail on 17.11.2009, subsequently, he was again arrested and taken into custody on 28.5.2010 and since that day he is in jail as of now. Therefore, calculating the entire period of his jail sentence, it comes to more than 8 years and 3 months. In the considered opinion of this Court, the aforesaid period of sentence already undergone will meet the ends of justice. 15. In view of the aforesaid, the appeal is allowed in part. Conviction of the appellant for the charge under section 302 is altered for offence under section 304(II) of IPC and heis sentenced to the period of imprisonment already undergone by him. The appellant is in jail, therefore, the Registry of this Court is directed to arrange for issuance of his supersession warrant so that the appellant may be rleased if not required to be detained in any other case. 16. A copy of the judgment be sent to the trial Court along with record for information and compliance.