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2023 DIGILAW 627 (MP)

Ramdeen Parte v. State of M. P.

2023-06-23

ACHAL KUMAR PALIWAL, SUJOY PAUL

body2023
JUDGMENT 1. This criminal appeal filed under section 374(2) of the Code of Criminal Procedure, 1973 takes exception to the judgment dated 6.5.2017 passed in Session Case No. 26/2016 decided by learned Sessions Judge, Mandla whereby appellant was held guilty for committing offence under section 302 of IPC and directed him to undergo sentence of Life imprisonment with fine of Rs. 2,000/-, with default stipulation. 2. The facts are within narrow compass. As per the prosecution case, on 12.11.2015, the deceased Devlal came to the house of appellant Ramdeen at around 8-9 PM. Both of them consumed liquor. Devlal told appellant that he is doing “Jhad foonk” and presenting himself in the village like that I drank water from 12 Ghats and can eat you here itself. Because of this kind of conversation started at the instance of deceased, appellant got annoyed and both of them exchanged heat during altercation. Out of anger, the appellant allegedly threw the deceased on the floor and thereafter assaulted him by means of fists and kicks. On the next day i.e. on 13.11.2015, the appellant informed the wife of deceased Bisrobai (PW-7) that Akku (deceased) who was grandfather of appellant is sleeping. Bisrobai (PW-7) found that her husband Devlal is lying on a cot and his body is full of injuries. 3. Mangal Singh lodged ‘Marg’ Intimation (Ex.P/17) which was followed by ‘marg’ inquiry. Thereafter, FIR No. 169/15 was registered against the appellant. 4. After completion of investigation, chalan was filed. The matter travelled to Sessions Court where appellant abjured the guilt. 5. During the course of trial, the Court below framed four questions for its determination. The prosecution introduced 12 witnesses whereas no defence witness entered the witness box. 6. After recording the evidence and hearing the parties, the impugned judgment dated 6.5.2017 was passed convicting and sentencing the appellant as mentioned above. Contention of appellant :- 7. Shri V. P. Singh, learned counsel for the appellant submits that admittedly there is no eye witness to the incident. The case of prosecution is based on circumstantial evidence and so called extra judicial confession of appellant before Ramcharan Patta (PW-4), Bisrobai (PW-7), Tulsiram Markam (PW-8) and Jhumaklal (PW-10). It is categorically argued that appellant is not assailing the impugned judgment on merits. The appellant is confining his argument on the question of conviction and sentence. The case of prosecution is based on circumstantial evidence and so called extra judicial confession of appellant before Ramcharan Patta (PW-4), Bisrobai (PW-7), Tulsiram Markam (PW-8) and Jhumaklal (PW-10). It is categorically argued that appellant is not assailing the impugned judgment on merits. The appellant is confining his argument on the question of conviction and sentence. In the backdrop the incident had taken place, offence under section 304 Part-II can be made out and it cannot be an offence under section 302 of IPC. Even otherwise, Bisrobai (PW-7)’s statement does not bring it within the ambit of extra judicial confession. It is submitted that as per Exception 4 of section 300 of IPC, the incident which had taken place without any premeditation in which no deadly weapon was used cannot fall within the ambit of culpable homicide amounting to murder. Thus, appellant who is in custody since 16.11.2015 may be treated as undergone the sentence under section 304 Part-II of IPC. Contention of State :- 8. Shri Arvind Singh, learned Government Advocate opposed the same and supported the judgment. He placed reliance on the extra judicial confessions mentioned hereinabove as well as number and nature of injuries and urged that the Court below has rightly appreciated the evidence and came to hold that offence under section 302 of IPC is made out. 9. Parties confined their argument to the extend indicated herein above. 10. We have heard the parties at length and perused the record. Finding :- 11. The interesting conundrum in this case is whether offence committed by the appellant attracts section 302 of IPC or it can be converted into section 304 Part-II of IPC. 12. The apex Court in the case of Pulicherla Nagaraju @ Nagaraja v. State of A.P. [ (2006)11 SCC 444 laid down the litmus test. Finding :- 11. The interesting conundrum in this case is whether offence committed by the appellant attracts section 302 of IPC or it can be converted into section 304 Part-II of IPC. 12. The apex Court in the case of Pulicherla Nagaraju @ Nagaraja v. State of A.P. [ (2006)11 SCC 444 laid down the litmus test. For considering the same, The relevant portion reads as under :- “….The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.” (Emphasis supplied) 13. The similar view is taken by the apex Court in its previous judgment in Mahesh Balmiki v. State of M.P. (2000) 1 SCC 319 . 14. If the factual backdrop of this case is examined on the anvil of principles laid down in the case of Pulicherla Nagaraju @ Nagaraja (supra), it will be clear that :- (i) No weapon was used in the instant case by appellant. (ii) Appellant did not carry any weapon and has not assaulted the deceased by means of any weapon. (iii) The blows were mainly aimed on ribs. (ii) Appellant did not carry any weapon and has not assaulted the deceased by means of any weapon. (iii) The blows were mainly aimed on ribs. (iv) The amount of force employed by appellant appears to be on a higher side but it cannot be doubted that incident had taken place in a spur of moment because of certain heated altercation which were initiated by deceased. (v) There was no premeditation in the instant case. (vi) There was no previous enmity between the parties indeed appellant is grandson of the deceased. (vii) There was grave and sudden provocation on the part of the deceased. (viii) In a head of moment, the incident had taken place. (x) The several blows were made by the appellant but by only using the body parts. 15. Considering the aforesaid backdrop, in our opinion, the argument of Shri V. P. Singh, learned counsel for the appellant has substance that Exception 4 of section 300 of IPC is attracted in the instant case and the incident cannot be said to be culpable homicide amounting to murder. 16. Considering the aforesaid, we deem it proper to alter the conviction of appellant from section 302 to 304 Part-II of IPC and decide the period of sentence as 8 years. The impugned judgment stands modified to the extent indicated above. The appellant shall be released after completion of above sentence (if not already completed). 17. The Criminal Appeal is partly allowed.