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2022 DIGILAW 596 (MP)

Kadliya v. State of M. P.

2022-04-12

AMAR NATH (KESHARWANI), VIVEK RUSIA

body2022
JUDGMENT Looking to the long pendency of this criminal appeal instead of hearing the application for suspension of sentence, with the consent of the parties same is heard finally. ***** 1. Appellant has preferred this appeal under section 374 of the Code of Criminal Procedure, 1973 (in short “Cr.P.C.”) against the judgment of conviction dated 30.12.2011, passed by Additional Sessions Judge to the Court of Second Additional Sessions Judge (Fast Track Court) Jobat in Sessions Trial No.114/2011, whereby he has been convicted 302 and 323 of I.P.C. and sentenced to undergo life imprisonment and six months R.I. with fine of Rs.500 for the offence punishable under section 302 of I.P.C. with default stipulation. 2. The case of the prosecution, in brief, is as follows: - (a) As per the prosecution story on 24.4.2011 at about 19:30, the complainant Walsingh (PW-1) gave information to the Police Station Chandpur that he along with his wife Dhanibai (hereinafter referred to as '' Deceased'') and son Ramsingh were in the home. The deceased was grinding spices, at that time appellant came there, who is the son of his wife from her first husband and told to her that what are you doing and you cooks the food slowly. Thereafter, he gave a blow on the head of the deceased by means of Darata, she tried to save herself by raising her hand and sustained incised wound on the thumb. Thereafter, she fell to the floor and when the complainant tried to save her, the appellant caught hold of his neck and gave a blow on his shoulder from the blunt side of Darata and fled away from the spot. The complainant noticed that his wife has already died. He called neighbour Hasli and narrated the entire story to him. The incident was witnessed by Ramsingh. These information were recorded at Merg No.11/11 under section 174 of Cr.P.C by police station followed by FIR at crime No.34/2011 for the offence punishable under sections 302,323 of I.P.C. Police reached at spot, and drawn the Panchanama. The dead body was sent for autopsy. Dr. B.K. Sahu conducted a postmortem and submitted report Ex. -13(A). The Appellant was arrested, thereafter investigation was completed and a charge-sheet was filed. The dead body was sent for autopsy. Dr. B.K. Sahu conducted a postmortem and submitted report Ex. -13(A). The Appellant was arrested, thereafter investigation was completed and a charge-sheet was filed. The Trial committed to the Sessions Court where charges under section 302 and 324 of I.P.C.were framed against the appellant, he denied all the charges and took a plea of alibi. 3. After evaluating the evidence came on record, the trial Court has convicted the appellant as stated above. Hence, this appeal before this Court. 4. At the very outset, learned senior counsel for the appellant submits that the appellant is in jail since the date of arrest i.e. more than 10-11 years. The crime was committed without premeditation as the appellant assaulted his mother out of anger. He was not intending to kill the complainant as he used the blunt side of the Darata, therefore the offence will not travel more than 304 Part -II of I.P.C. Accordingly, conviction is liable to be converted under section 302 of I.P.C. to 304 Part -II of I.P.C. and the jail sentence may kindly be reduced from life imprisonment to the period already undergone. 5. Government Advocate opposes the prayer made by the appellant and supported the finding of the trial Court. We have heard the learned counsel for the parties at length and perused the record of the case. Looking to the limited prayer now the only issue which requires consideration is whether it is a case of culpable homicide not murder and falls in exception IV of the 300 of I.P.C. ? 6. To prove the charges, the prosecution examined Walsingh (PW-1) and according to him, the appellant came to house from the outside and assaulted his mother by means of Darata. She sustained an injury on her thumb and he has also assaulted step father/complainant by means of Darata (from blunt side), thereafter, he fled away from the spot. His son Ramsingh (PW-2) has also witnessed the incident, has not supported the case of the prosecution and declared hostile. Dhekliya (PW-3), Vestiya (PW4) and Hasli Bai (PW-5) have also not supported the case of the prosecution and they were declared hostile. Therefore, the entire conviction is based on the sole testimony of Walsingh (PW-1). 7. So far as the injury is concerned, the deceased was examined by Dr. Dhekliya (PW-3), Vestiya (PW4) and Hasli Bai (PW-5) have also not supported the case of the prosecution and they were declared hostile. Therefore, the entire conviction is based on the sole testimony of Walsingh (PW-1). 7. So far as the injury is concerned, the deceased was examined by Dr. N.S. Dawar (PW-7) and he noticed only three injuries, said to have been caused by a hard and blunt object which is as under: - (i) Swelling plus contusion present left lateral aspect of upper size 2/5 x 1.5 inch caused by a hard and blunt object. (ii) Swelling plus tenderness half of front side and both sides neck caused by a hard and blunt object. (iii) Multiple abrasions on the whole back and chest. 8. Dr. B.K. Sahu (PW-9) conducted the autopsy and after internal examination, he found a fracture on the occipital base caused by a hard and blunt object. Therefore, it is clear from the aforesaid evidence, that the appellant was not intending to kill the deceased thus he used the blunt side of Darata. Therefore, in our opinion, considerable merit in the contention of learned senior counsel, is the case of culpable homicidal will fall under section 304 part II I.P.C. is not murder. We find support from the following judgments passed by the Supreme Court of India in this criminal jurisprudence. 9. The Hon'ble Supreme Court has held in Gurpal Singh v. State of Punjab, AIR 2017 SC 471 . Para 10 of the judgment reads thus: “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. 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 1 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.” 10. The Hon'ble Supreme Court has laid down in Prabhakar Vithal Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if the assault on deceased could be said to be on account of the sudden fight without premeditation, 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 IPC. In Sikandar Ali v. State of Maharashtra, AIR 2017 SC 2614 , the Court altered the conviction u/s 302 IPC to one u/s 304 part-2 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 our consideration is whether the accused are liable to be punished for an offence under section 302 IPC. After considering the submissions made by the counsel for the appellants and scrutinising the material on record, we are of the opinion that the accused are not liable to be convicted under section 302 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 a knife. Exception 4 to section 300 is applicable to the facts of this case. 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 a 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 304 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 the 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.” 11. In Chand Khan v. State of M.P. reported in 2006(3) M.P.L.J. 549 , the Division Bench of this Court has also converted the conviction of the appellant in attaining facts and circumstances of the case. Para -10 & 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 Chandkhan and appellant Naseem inflicted only lathi blow on the nonvital 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 circumstances 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. 11. consequently, appeal is partly allowed. Conviction of appellants under section 302/34 Indian Penal Code, is set aside and instead they are convicted under section 304 part II, Indian Penal Code, ..........” 12. In the case of Ankush Shivaji Gaikwad v. State of Maharashtra, reported in (2013) 6 SCC 770 the Supreme Court of India has held as under:- 10. On behalf of the appellant it was contended that the appellant's case fell within Exception 4 to section 300 IPC which reads as under: “Exception 4.— Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.” 11. It was argued that the incident in question took place on a sudden fight without any premeditation and the act of the appellant hitting the deceased was committed in the heat of passion upon a sudden quarrel without the appellant having taken undue advantage or acting in a cruel or unusual manner. There is, in our opinion, considerable merit in that contention. We say so for three distinct reasons: 11.1. Firstly, because even according to the prosecution version, there was no premeditation in the commission of the crime. There is not even a suggestion that the appellant had any enmity or motive to commit any offence against the deceased, leave alone a serious offence like murder. We say so for three distinct reasons: 11.1. Firstly, because even according to the prosecution version, there was no premeditation in the commission of the crime. There is not even a suggestion that the appellant had any enmity or motive to commit any offence against the deceased, leave alone a serious offence like murder. The prosecution case, as seen earlier, is that the deceased and his wife were guarding their jaggery crop in their field at around 10 p.m. when their dog started barking at the appellant and his two companions who were walking along a mud path by the side of the field nearby. It was the barking of the dog that provoked the appellant to beat the dog with the rod that he was carrying apparently to protect himself against being harmed by any stray dog or animal. The deceased took objection to the beating of the dog without in the least anticipating that the same would escalate into a serious incident in the heat of the moment. The exchange of hot words in the quarrel over the barking of the dog led to a sudden fight which in turn culminated in the deceased being hit with the rod unfortunately on a vital part like the head. 11.2. Secondly, because the weapon used was not lethal nor was the deceased given a second blow once he had collapsed to the ground. The prosecution case is that no sooner the deceased fell to the ground on account of the blow on the head, the appellant and his companions took to their heels—a circumstance that shows that the appellant had not acted in an unusual or cruel manner in the prevailing situation so as to deprive him of the benefit of Exception 4. 11.3. Thirdly, because during the exchange of hot words between the deceased and the appellant all that was said by the appellant was that if the deceased did not keep quiet even he would be beaten like a dog. The use of these words also clearly shows that the intention of the appellant and his companions was at best to belabour him and not to kill him as such. The cumulative effect of all these circumstances, in our opinion, should entitle the appellant to the benefit of Exception 4 to Section 300 IPC. 13. The use of these words also clearly shows that the intention of the appellant and his companions was at best to belabour him and not to kill him as such. The cumulative effect of all these circumstances, in our opinion, should entitle the appellant to the benefit of Exception 4 to Section 300 IPC. 13. In view of the above discussion and verdicts of the apex Court, the criminal appeal is partly allowed. We hereby confirm all the findings given by the learned Additional Session Judge except the conviction which is hereby altered to section 304 Part II of IPC, instead of section 302 of IPC and accordingly sentence is reduced from life imprisonment to the period already undergone. The fine amount is maintained imposed by the trial Court. The appellant be set free after depositing the fine amount if he is not required to keep in jail in any other case. Record of the trial Court be sent back along with a copy of this judgment.