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2019 DIGILAW 376 (MP)

Hardas Khamsingh Tadvi v. State of Madhya Pradesh

2019-05-10

SHAILENDRA SHUKLA, VANDANA KASREKAR

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JUDGMENT : VANDANA KASREKAR, J. 1. The appellant has preferred the present appeal under Section 374 of Cr.P.C. being aggrieved by judgment dated 25.02.2011 passed by the Vth Additional Sessions Judge Khargone, District-Khargone in S.T. No. 207/2010, whereby he has been convicted for offence punishable under Sections 302 and 323 of the IPC and sentenced to undergo life imprisonment and three months: R.I. respectively with fine of Rs. 10,000/- and in default of payment of fine two years additional rigorous imprisonment. The sentences were directed to run concurrently. 2. Brief facts of the case in nutshell are that, on 27.8.2010 at around 8.00 p.m. when appellant-Hardas was hurling abuses to his second wife-Epubai in front of his house at that time, Mangibai, sister of Epubai with her husband-Sardar as well as their son-Vikram and son-in-law Govind came there to pacify the matter and they asked him to stop hurling abuses and being annoyed with this, accused-Hardas pulled out a knife from his pocket. Mangubai tried to catch the knife, due to which, she received injury on her left hand thumb. Thereafter, the accused pushing her aside with an intention to kill Sardar inflicted knife blow on the lower side of his neck and above the chest, as a result of which, Sardar fell down and blood started oozing from the wound and he died on the spot. Vikram and Govind tried to catch Hardas, but he ran away. Thereafter, Mangibai, wife of the deceased, narrated the story to Sarpanch-Ramsingh and the Sarpanch informed the incident to the Police on mobile phone. The Police reached on the spot and on the basis of the nehatinalishi (Ex.P/9) merge report (Ex.P/10) was recorded. On the next day morning i.e. on 25.8.2010 panchnama of the dead-body (Ex.P/2) was prepared and blood stained soil was collected from the incident spot. Spot map (Ex.P/12) was prepared and thereafter the dead-body was sent for postmortem Ex.P/21) and also recorded the statements of the witnesses. The accused was arrested on 27.8.2010. The investigation was launched and the offence was registered against the accused for offence under Sections 302 and 323 of the IPC and he was duly committed to his trial. The accused abjured his guilt and he has stated that he has been Jalsely implicated in the matter. On considering the evidence, the Trial Court has convicted and sentence the accused for the offence as hereinabove stated. The accused abjured his guilt and he has stated that he has been Jalsely implicated in the matter. On considering the evidence, the Trial Court has convicted and sentence the accused for the offence as hereinabove stated. Being aggrieved, the appellant has filed the present appeal. 3. Though the appellant has filed this appeal on various grounds, but during arguments learned counsel for the appellant submitted that, he does not want to press merits of the case and prayed that, the case of the appellant falls under Section 304, Part-II of the IPC, therefore, his conviction be converted to one under Section 304-II of the IPC. It is further submitted that, as the appellant is in custody since 27.8.2010 and has completed eight years nine months of jail sentence, therefore, he may be awarded imprisonment for the period already undergone. 4. Learned Government Advocate fairly admitted that, looking to the facts and circumstances of the case, the conviction of the appellant may be converted into one under Section 304, Part-II of the IPC. 5. We have considered the contentions of both the learned counsel for the parties. 6. In the case of Annamalai vs. State of Tamil Nadu, 2016 Cri. L.J. 2727, whereby the Division Bench of Madras High Court has considered the mitigating circumstances and has held in para-13 of the judgment as under:- “Now turning to the punishment, the accused is the sole bread winner of the family. He has got three brothers. He has got a big family to take care. He has no bad antecedents. After the occurrence also, it is not reported that he was involved in any other crime. Further, there are lots of chances for reformation. So far as the aggravating circumstances are concerned, there was no premeditation for the accused to commit the murder of the deceased. Having regard to these mitigating as well as aggravating circumstances, we are of the view that sentencing the accused to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- would meet the ends of justice.” 7. In Chand Khan vs. State of M.P. 2006 (3) MPLJ 549 , the Division Bench of this Court has also converted the conviction of the appellant in attaining facts and circumstances of the case. The relevant paras-10 and 11 of the judgment are relevant which reads thus: “10. 1,000/- would meet the ends of justice.” 7. In Chand Khan vs. State of M.P. 2006 (3) MPLJ 549 , the Division Bench of this Court has also converted the conviction of the appellant in attaining facts and circumstances of the case. The relevant paras-10 and 11 of the judgment are relevant which reads thus: “10. 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 Chand Khan and appellant Naseem inflicted only lathi blow on the non-vital 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 circumstance 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.” 8. In the case of Gurpal Singh vs. State of Punjab, AIR 2017 SC 471 , whereby the Apex Court has held in para-10 of the judgment that: “10. 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 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-I, 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.” 9. In the case of Arjun and Another vs. State of Chhatisgarh, AIR 2017 SC 1150 , whereby the Apex Court has held that:- “19. The point falling for consideration is whether the conviction of the appellants under Section 302, IPC is sustainable. As discussed earlier, the evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred due to a sudden fight which, in our view, falls under exception (4) of Section 300, IPC. 20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. Union Territory of Chandigarh, (1989) 2 SCC 217 : AIR 1989 SC 1094 , 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. 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 vs. State, Rep. by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590 , 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:- “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 offenders 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 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 cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means unfair advantage.” 10. 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.” 10. In the case of Prabhakar Vithal Gholve vs. State of Maharashtra, AIR 2016 SC 2292 , whereby the Hon'ble Supreme Court has held that, if assault on the deceased could be said to be on account of sudden fight without pre-mediation, in heat of passion and upon a sudden quarrel, conviction of the appellant cannot be sustained under Section 302 and altered to one under Section 304, Part-I of the IPC. Relevant para-7 of the judgment reads under:- “7. In the facts and circumstances noted above, there appears merit in the submission advanced by learned counsel for the appellant that in view of Exception 1 or Exception 4 in Section 300 of the IPC the case made out against the appellant is that of culpable homicide not amounting to murder. It would be natural for the family members, of juvenile offender Balu on hearing his cries, to rush for his help and when injury on the appellant has also been proved there is sufficient material to infer the reasonable possibility a grave and sudden provocation. The assault on the deceased, in absence of intention to cause death could be on account of sudden fight without pre-meditation, in the heat of passion and upon a sudden quarrel. We therefore feel persuaded to and do set aside the conviction of the appellant under Section 302, IPC and substitute the same with conviction under, Section 304, Part I of the IPC. The certificate of imprisonment available on record discloses that the appellant has by now undergone more than 12 years of actual imprisonment. The aforesaid period, in our estimate is sufficient to meet the ends of justice. Hence, the sentence of imprisonment for life is reduced to imprisonment for the period already undergone by the appellant. In view of such modification in the sentence, the appellant is directed to be released from custody forthwith if not required to be kept in custody in connection with any other criminal case. The appeal stands allowed to the aforesaid extent.” 11. In view of such modification in the sentence, the appellant is directed to be released from custody forthwith if not required to be kept in custody in connection with any other criminal case. The appeal stands allowed to the aforesaid extent.” 11. In case of Sikandar Ali vs. State of Maharashtra, AIR 2017 SC 2614 , the Apex Court has altered the conviction under Section 302 of the IPC to one under Section 304, Part-II of the IPC in the following circumstances:- “7. 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 out consideration is whether the accused are liable to be punished for an offence under Section 302 of IPC. After considering the submissions made by the counsel for the Appellants and scrutinizing the material on record, we are of the opinion that the accused, are not liable to be convicted under Section 302 of 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 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 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 me 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. In the case of Madhavan and Others vs. State of Tamil Nadu, AIR 2017 SC 3847 , reads as under:- “8. We modify me 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. In the case of Madhavan and Others vs. State of Tamil Nadu, AIR 2017 SC 3847 , reads 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 PW-1 questioned the appellants about their behavior. It was a free fight between the two family members. Both sides suffered injuries during the altercation. The fatal injury caused to Penyasamy was by the use of thadi (wooden log) which was easily available on the spot. The appellants, on their own, 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. 9. We may usefully refer to the decision of this Court (one of us, Justice Dipak Misra speaking for the Court) in the case of Gopal Singh vs. State of Uttarakhand enunciated the necessity to adhere to the principle of proportionality in sentencing policy. In paragraphs 18 and 19 of the said decision, the Court observed thus: “18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a strait-jacket (2013) 7 SCC 545 : AIR 2013 SC 3048 , formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment. 19. A Court, while imposing sentence, has to keep in view the various complex matters in mind. To structure a methodology relating to sentencing is difficult to conceive of. The legislature in its wisdom has conferred discretion on the Judge who is guided by certain rational parameters, regard been had to the factual scenario of the case. In certain spheres the legislature has not conferred that discretion and in such circumstances, the discretion is conditional. To structure a methodology relating to sentencing is difficult to conceive of. The legislature in its wisdom has conferred discretion on the Judge who is guided by certain rational parameters, regard been had to the factual scenario of the case. In certain spheres the legislature has not conferred that discretion and in such circumstances, the discretion is conditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. The special reasons have to rest on real special circumstances. Hence, the duty of Court in such situations becomes a complex one. The same has to be performed with due reverence for Rule of the collective conscience on one hand and the doctrine of proportionality, principle of reformation and other concomitant factors on the other. The task may be onerous but the same has to be done with total empirical rationality sans any kind of personal philosophy or individual experience or any a-priori notion.” 10. Considering the above and keeping in mind the facts of the present case, the nature of the crime, subsequent conduct of the appellants, the nature of weapon used and all other attending circumstances and the relevant facts including that no subsequent untoward incident has been reported against the appellants and the mitigating circumstances, we are inclined to modify the sentence period in the following terms: ...........” 13. In the case in hand, the accused/appellant and the deceased are close relatives. The accused was hurling abuses to his second wife Epubai at that time Mangibai, sister of Epubai with her husband-Sardar as well as their son-Vikram and son in-law Govind came there to pacify the matter and they asked him to stop hurling abuses and being annoyed with this, accused-Hardas pulled out a knife from his pocket and inflicted blow on the lower side of neck and above chest of Sardar, as a result of which, he fell down and died on the spot. From the said incident, it reveals that the injury caused by the appellant due to sudden provocation and there was no intention; preparation or premeditation for the crime. The incident occurred suddenly only on the ground that the deceased has tried to pacify the matter. The injury has been caused in the heated spur of moment. The appellant suddenly assaulted Sardar (deceased) with the help of knife on his neck and above chest. The incident occurred suddenly only on the ground that the deceased has tried to pacify the matter. The injury has been caused in the heated spur of moment. The appellant suddenly assaulted Sardar (deceased) with the help of knife on his neck and above chest. He did not repeat nor even tried to repeat the blow, though he was having full opportunity. He did not take any undue advantage of the situation. It does not appear from the evidence that his intention was to kill the deceased. On the contrary, it appears mat only in a fit of rage, he suddenly gave a knife blow, which caused injury on the neck of the deceased and unfortunately, proved fatal for his life. Therefore, we are also in consensus that the case of the appellant qualifies all parameters i.e. it was a sudden fight; there was no premeditation; the act was done in a heat of passion and, the assailant had not taken any undue advantage or acted in a cruel manner and, therefore, does not fall under the purview of the offence punishable under Section 302 of the IPC, but falls under the purview of offence punishable under Section 304, Part-II of IPC. 14. Ex-consequenti, the appeal is partly allowed. The conviction of the appellant is converted into one offence under Section 304, Part-II of the IPC and the jail sentence is reduced to the period already undergone. In this view of the matter, as a corollary, the appellant is directed to be released from custody forthwith, if he is not required to be kept in custody in connection with any other criminal case. 15. A copy of this judgment be sent to the concerned trial Court for compliance.