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2022 DIGILAW 1339 (MP)

Shankar Singh v. State of M. P.

2022-11-11

AMAR NATH KESHARWANI, VIVEK RUSIA

body2022
JUDGMENT This criminal appeal is filed against the judgment dated 22.8.2017 passed by learned Addl. Sessions Judge, Mahidpur, District Ujjain in S.T. No.56/2014 whereby the appellant has been convicted u/s. 302 of the IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- with default stipulation. The facts of the case, in brief, are as under : 1. As per prosecution case, on 15.12.2013 at 13.00 hours Bherusingh Patel along with Nagusingh, Tarusingh, Narayan and Govardhansingh went to the Police Station Raghvi and lodged the report that on that day, near about at 12.30 Noon, ceremony of 'Pagdi' was going on and the deceased Devsingh was weeping in intoxication condition. His son, the present appellant, became annoyed and thrown his father on the floor and thereafter pelted stone on his chest and legs. They all asked the appellant as to why he assaulted his father, then the appellant answered that his father is in habit of weeping after consumption of liquor. Accordingly, the FIR was lodged for the offence u/s. 302 of the IPC at Crime No.323/2013. The investigation was carried out and appellant was arrested. After completion of the investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class from where it was committed to the Court of Sessions vide order dated 13.1.2014. The charge u/s. 302 of the IPC was framed against the appellant which he denied and pleaded for trial. The prosecution examined 12 witnesses as P.W.1 to P.W.12 and got exhibited 17 documents as Exh. P/1 to P/17. In defence, appellant did not examine any witness and did not exhibited any document.The prosecution examined Narayansingh as P.W.1 who is neighbour of the appellant and except him, all other witnesses have turned hostile and have deposed that in a drunken condition the deceased fallen in 'Nala' and died. As per autopsy report, the deceased died due to rupture of spleen. After evaluating the evidence came on record, learned Addl. Sessions has convicted and sentenced the appellant, as stated first. Hence, the present appeal before this Court. 2. Learned counsel for the appellant submits that he is not assailing the findings recorded by the learned Sessions Judge on the merits of the case in respect of date of incident, cause of death, complicity of the present appellant, etc. Sessions has convicted and sentenced the appellant, as stated first. Hence, the present appeal before this Court. 2. Learned counsel for the appellant submits that he is not assailing the findings recorded by the learned Sessions Judge on the merits of the case in respect of date of incident, cause of death, complicity of the present appellant, etc. The appellant suddenly out of an anger on the issue of weeping of his father in a drunken condition, he assaulted his father by pelting stone. There was no previous enmity between him and his father. Therefore, the offence comes under Except IV of section 300 of the IPC and the offence will not travel more than section 304 Part I of the IPC and for which the appellant has already completed the jail sentence. The appellant has no criminal past. He, therefore, prayed that this appeal be allowed and the conviction u/s. 302 of the IPC be converted into section 304 Part I of the IPC and the sentenced be reduced accordingly. 3. On the other hand, learned Govt. Advocate opposes the prayer and argued in support of the impugned judgment by submitting that the appellant with an intention to kill, pelted the stone on the chest and legs of the deceased knowing fully well its consequences. He, therefore, prays that no interference is called for and the appeal is liable to be dismissed. After having heard the learned counsel for the parties, we have perused the record of the court below. 4. From the evidence came on record, it is evident that the appellant out of sudden anger on the issue that his father is weeping in drunken condition and which is in his habit, pelted the stone on the chest and legs of his father, due to which he died. The appellant is not a habitual offender. It was not the case of the complainant in the FIR that the appellant pelted the stone on his father with an intention to kill him. All of a sudden, the appellant out of sudden anger, pelted the stone on his father due to which deceased died. Looking to the overall facts and circumstances of the case, we are considered opinion that this appeal deserves to be partly allowed and the conviction u/s. 302 of the IPC deserves to be altered into section 304 Part I of the IPC. 5. Looking to the overall facts and circumstances of the case, we are considered opinion that this appeal deserves to be partly allowed and the conviction u/s. 302 of the IPC deserves to be altered into section 304 Part I of the IPC. 5. We find support from the case of Ongole Ravikanth v. State of A.P. : AIR 2009 SC 2129 where the husband poured the kerosene on the wife and set her on fire, found that the incident took place all of a sudden without any pre-intention then the act of the accused is found to be punishable u/s. 304 Part I of the IPC and affirmed the judgment of conviction and sentence passed by the High Court. The aforesaid judgment has been relieved upon by the co-ordinate Bench of this Court in the case of Bherusingh v. State of M.P. (Cr. Appeal No.539/2005 decided on 13.3.2012). Para 22, 23, 24 and 25 of the said judgment are reproduced below : “22. On bare perusal of the dying declaration, we find that specifically the deceased is saying that the appellant wanted to perform second marriage and, therefore, he caused burn injury to her. As per Ex.D/5 dying declaration of the deceased, which was recorded on 17.6.04, by the Head Constable, she had deposed that in the night there was some quarrel with her husband and, thereafter, at 4.30 in the morning he sprinkled kerosene and lit the fire and then short circuited the electric wire. She also stated that she was at her in-law's place for a period of 1½ months. PW6, Gendkunwar, mother of the deceased, in paragraph 6 of her statement (Ex.D/3), very categorically admitted that during life time her daughter never lodged any complaint against her husband and in-laws. She also admitted that this fact was narrated by her to the police at the time of recording of her 161 statement (Ex.D/3). 23. From the above evidence, we are of the view that there was no enmity between the parties and the incident had occurred all of a sudden in a heat of passion, the act of the appellant would come within the purview of exception 4 to section 300 of the IPC and if that would be the position, according to us the appellant has committed an offence under section 304 Part-I of the IPC. In the case in hand, the incident occurred due to some quarrel between appellant-accused (husband) and deceased (wife). 24. The apex Court in the case of Ongole Ravikanth v. State of A.P. ( AIR 2009 SC 2129 ) in the similar circumstances where the husband poured kerosene on the wife and set her on fire “found that incident taken place all of a sudden without any preintention then the act of the accused is found to be punishable under section 304 Part-I of IPC and affirmed the judgment of conviction and sentence passed by the High Court”. 25. The law laid down by the apex Court in the case of Ongole Ravikanth (supra) will be fully applicable to the factual scenario of the present case also. Thus, the appellant-accused can be convicted for the offence punishable under section 304 Part-I of the IPC and not under section 302 of the IPC.” 6. In view of the foregoing discussion, this appeal is partly allowed. The conviction of the appellant u/s. 302 of the IPC is set aside and he is convicted for an offence punishable u/s. 304 Part I of the IPC and sentenced to undergo the period already undergone. The appellant be released forthwith subject to payment of the fine amount and if not required in any other cause. Record of the court below along with a copy of this order be sent forthwith for information and compliance.