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2022 DIGILAW 1046 (MP)

Harendra Singh v. State of M. P.

2022-08-24

AMAR NATH KESHARWANI, VIVEK RUSIA

body2022
ORDER Rusia, J:- 1. Today, this appeal is listed on I.A. No.8287/2022 application for suspension of sentence filed by the appellant but with the consent of both the parties, this criminal appeal is heard finally on limited grounds. 2. The present criminal appeal has been filed by the appellant being aggrieved by the judgment dated 3.10.2015 passed by dditional Sessions Judge, Sonkatch District-Dewas in Sessions Trial No.341/2014 whereby the appellant has been convicted under section 302 of the IPC and sentenced to undergo life imprisonment with fine of Rs.5,000/-. 3. As per the prosecution story, on 24.9.2014 near about 3 p.m. there was a dispute between appellant and deceased Vishram Singh and they were separated and on the same day when Vishram Singh was managing the cattle in front of his home this appellant came with a stick and started assaulting him on his head. Informant Arvind and Rajendra Bharti intervened and appellant ran away. Vishram Singh was taken to the Sonkatch Hospital where he was reported died. FIR Exhibit-P/1 was lodged at crime No.52/2014 under section 302 of the IPC. Dead body was sent for autopsy and spot map was drawn. The clothes of the deceased were seized containing blood stains. The appellant was arrested on 29.4.2014 and put to trial. He denied the charge and pleaded for trial. The prosecution has examined any many as 9 witnesses and exhibited 22 documents. In defense he did not examined any witnesses but he got exhibited three documents. He came up with a plea of right of defense before the trial Court. Vide judgment dated 3.10.2015 the court has convicted him under section 302 of the IPC. 4. Learned counsel for the appellant submits that he is not assailing the findings recorded by the trial court in respect of incident took place on 24.9.2014, injuries sustained by the deceased, cause of death, place of crime and the involvement of this present appellant. He submits that the appellant and the deceased were close friends and dispute suddenly occurred between them and he gave a single blow by means of lathi & as per the autopsy report and statement of the doctor which turned fatal. No fracture of temporal bone was found therefore, it cannot be said that he gave a blow with intention to kill the deceased. No fracture of temporal bone was found therefore, it cannot be said that he gave a blow with intention to kill the deceased. He has further refereed the statement of P.W.-2 who has stated that he saw the deceased running towards the home followed by the appellant carrying stick in his hand. The deceased entered into his house and came up with a stick and started fight and during fight appellant gave a blow on the head therefore, keeping on the aforesaid evidence came on record the offence will not travel more than 304 (Part-I) of the IPC and for which the appellant who is in jail since last more than 9 years has sufficiently undergone the period therefore, on this limited ground the appeal may be disposed of by altering the sentence of section 302 of the IPC into section 304 (Part-I) of the IPC and reduced the sentence of Life Imprisonment into the sentence already undergone by the appellant. 5. Shri Bhaskar Agrawal, learned Govt. Advocate opposes the prayer by submitting that the plea of self defense has been negated by the trial Court as this appellant was aggressor however, he admits that the deceased sustained only one head injury and that was contusion in nature however, he was died due to that injury as per the doctor’s opinion therefore the appellant has rightly been convicted under section 302 of the IPC. We have heard the learned counsel for the parties and perused the record and examined the evidence. 6. As per the prosecution story the appellant gave two to three blow on head, nose and elbow of the deceased but as per the doctor’s opinion only on contusion was found on the head and there is no temporal fracture. Stick is not a lethal weapon therefore it cannot be said that the appellant caused the injury with the intention to kill the deceased however, the said sole injury has turned fatal. There was no previous enmity reported between them as per the evidence. They were close friend. The deceased was also carrying a stick and there was a fight between them. There was no previous enmity reported between them as per the evidence. They were close friend. The deceased was also carrying a stick and there was a fight between them. Therefore, in view the law laid down by the apex Court in the cases of Gurpal Singh v. The State of Punjab reported in AIR 2017 SC 471 , Arjun & Another v. The State of Chhattisgarh reported in AIR 2017 SC 1150 , Prabhakar Vithal Gholve v. The State of Maharashtra reported in AIR 2016 SC 2292 , Sikandar Ali v. The State of Maharashtra reported in AIR 2017 SC 2614 , Madhavan & Others v. The State of Tamil Nadu reported in AIR 2017 SC 3847 and Ankush Shivaji Gaikwad v. The State of Maharashtra reported in (2013) 6 SCC 770 , the offence will not travel more than section 300 exception IV of the IPC for which the appellant is liable to be convicted for the offence punishable under section 304 Part – I. 7. The Hon’ble Supreme Court has held in Arjun & Another (supra) that: 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. 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: “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 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’.” 8. 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’.” 8. The Hon’ble Supreme Court has laid down in Prabhakar Vithal Gholve v. The State of Maharashtra reported in AIR 2016 SC 2292 that if the assault on the deceased could be said to be on account of the sudden fight without pre-meditation, in heat of passion and upon a sudden quarrel, Conviction of the appellant cannot be sustained under section 302 and altered to under section 304 Part-I of IPC. 9. In view of the foregoing discussion, this appeal is partly allowed. The conviction of the appellant is altered from section 302 of the IPC to section 304 (Part-I) of the IPC. The sentence is reduced from life imprisonment to the period already undergone by the appellant. 10. Record of the court below along with a copy of this order be sent forthwith for information and compliance.