JUDGMENT 1. This appeal has been filed by appellant/accused through Jail Authorities, Central Jail, Gwalior against the judgment dated 14.2.2014 passed in Sessions Trial No.228/2013 (State of M.P. v. Mukesh Baretha) by 1st Additional Session Judge, Bhind (M.P.) by which the learned 1st Additional Session Judge has held the appellant/accused guilty for causing death of his brother-in-law/Bantu @ Suresh and injuries to his mother-in-law - Gaura Bai and brother-inlaw -Ramsiya for attempt to murder and convicted and sentenced the appellant as under:- Section Acr Sentence Fine Default stipulation 302 IPC Life Imprisonment 500/- 3 Months RI 302 (two counts) IPC 7 Year 500/- 3 Months RI 2. In short, the prosecution story is that on 29.7.2013, complainant – Nema (PW-1) was at her home situated at Bheemnagar alongwith her mother-in-law- Gaura Bai (PW-2) wife of the deceased- Bantu @ Suresh, Sister-in-law (Devrani)- Reeta and Sister-in-law (Nanad)- Rekha (PW-3). In the afternoon of the said day, accused- Mukesh came and started abusing and asked as to why they were not sending her wife- Rekha to his home (matrimonial home) and when Bantu @ Suresh objected to the abuses, appellant took out a knife from the pocket of his pant and with an intention to kill, stabbed Bantu @ Suresh on the left side of chest and on the left thigh of Bantu @ Suresh. When relative of complainant, Ramsiya (PW-4) tried to intervene in the matter, then accused stabbed him on the left side of his chest and also stabbed near the left armpit of his mother-in-law- Gaura Bai. At the time of incident, Ramkaran (PW-7) and Banshi arrived at the spot. Thereafter, appellant ran away from the spot. Meanwhile, neighbors reached the house of the complainant and they took the injured persons to the hospital where Bantu @ Suresh was declared dead. 3. Complainant- Nema (PW-1) lodged the Dehati Nalisi Crime No.0/13 (Ex.P/1) at the hospital and FIR (Ex.P/11) bearing Crime No.359/2013 was registered at Police Station- Kotwali, District- Bhind (M.P.) by Devendra Singh – (PW-8) ASI of Police Station- Kotwali, District- Bhind (M.P.) on receiving Ex.P/1 Dehati Nalisi. Accused was apprehended and on the basis of memorandum recorded under section 27 of Evidence Act (Ex.P/8), recovery of knife was made from the possession of the appellant/accused alongwith blood stained cloths of accused, seizure memo is Ex.P/10 and seizure memo of blood stained & normal soil is Ex.P/9. Accused was apprehended and on the basis of memorandum recorded under section 27 of Evidence Act (Ex.P/8), recovery of knife was made from the possession of the appellant/accused alongwith blood stained cloths of accused, seizure memo is Ex.P/10 and seizure memo of blood stained & normal soil is Ex.P/9. After recording the statement of witnesses under section 161 of Cr.P.C. and investigating the matter, charge-sheet was filed. On being charged under sections 302 and 307 (two counts) of IPC by the learned Court, accused denied the charges and pleaded innocence and demanded trial. 4. Prosecution produced Nema (PW-1), injured mother-in-lawGaura Devi (PW-2), wife of the appellant- Rekha (PW-3), injured Ramsiya (PW-4) and Ramkaran (PW-7) as eye-witnesses, Dr. Saurabh Jain (PW-5), ASI- Shivraj Singh Chauhan (PW-6), ASI- Devendra Singh (PW-8) and Inspector- Raghvendra Singh Tomar (PW-9) who is Investigating Officer produced Dehati Nalisi (Ex.P/1), Spot map (Ex.P/2), MLC of Ramsiya (Ex.P/3), MLC of Gaura Devi (Ex.P/4), Postmortem report of Bantu @ Suresh (Ex.P/5), seizure memo of blood stained clothes of deceased & injured persons (Ex. P/6), arrest memo of the appellant (Ex.P/7), memorandum of the appellant recorded under section 27 of Evidence Act (Ex.P/8), seizure memo of blood stained & normal soil from the spot (Ex.P/9), seizure memo of Iron knife and blood stained cloths of accused (Ex.P/10), FIR (Ex.P/11), information under section 174 of Cr.P.C. (Ex.P/12), documents relating to Panchnama of dead body (Ex.P/13 & 14) and FSL report (Ex.P/15). 5. Appellant/accused in his statement under section 313 of Cr.P.C. accepted the relationship with the complainant- Nema (PW-1) but regarding criminal offence denied the charges and has stated that due to enmity, he has been falsely implicated. 6. During arguments, learned counsel for the appellant in this jail appeal, pleaded that there is no reliable evidence, hence, conviction by the trial Court is without any basis, therefore, appellant may be acquitted. He further submits that appellant remained in judicial custody from 01/08/2013 to 14/02/2014 and is in further judicial custody from the date of judgment of trial Court till now. 7. Learned counsel for the State pleaded that learned Court has carefully and correctly marshalled the evidence produced by the prosecution and has rightly convicted and sentenced the appellant/accused and hence, prays for dismissal of this criminal appeal. 8. We have heard both the parties and perused the record. 9. 7. Learned counsel for the State pleaded that learned Court has carefully and correctly marshalled the evidence produced by the prosecution and has rightly convicted and sentenced the appellant/accused and hence, prays for dismissal of this criminal appeal. 8. We have heard both the parties and perused the record. 9. The question before this Court is whether in the facts and circumstances of the case, appeal of the appellant deserves to be allowed ? 10. PW-1- Nema, PW-2- Gaura Devi, PW-3- Rekha, PW-4- Ramsiya, PW-7- Ramkaran, have all deposed against the accused regarding the charges under sections 302 & 307 (two counts) of IPC and in short have stated that on 29.7.2013 in the afternoon, appellant/accused came and started abusing and when Bantu @ Suresh objected to the same, he took out the knife and stabbed on the chest of complainant's husband- Bantu @ Suresh, due to which, blood started oozing out, when mother-in-law- Gaura Devi tried to save him, he stabbed on her shoulder (near the armpit) and when Ramsiya son of her aunt came to intervene in the matter, appellant also stabbed him by knife. Thereafter, injured were taken to the hospital and they lodged the Dehati Nalisi (Ex.P/1). In cross-examination, nothing of substance has come out on the basis of which it can be said that accused did not stab the deceased and injured persons. PW-7- Ramkaran although states in his examination that when he reached the house of the deceased, he saw that appellant/accused- Mukesh stabbed the deceased on his chest and stabbed Gaura Devi & Ramsiya by knife and ran away from the spot. In para 7 of his cross-examination, he stated that Rekha did not want to live with the appellant. He also admitted that when he reached on the spot, many people had gathered there. In para 7 of his crossexamination, he clearly stated that on reaching the spot, he saw that appellant had stabbed the deceased and also stabbed Gaura Devi & Ramsiya. 11. Dr. Saurabh Jain (PW-5) has described the injuries of Ramsiya i.e. deep cut wound by sharp cutting object on chest. MLC report of Ramsiya is Ex.P/3. Medical report of Gaura Devi is Ex.P/4 who also received deep cut by sharp cutting object near the armpit. DeceasedBantu @ Suresh had received two deep cut wounds. 11. Dr. Saurabh Jain (PW-5) has described the injuries of Ramsiya i.e. deep cut wound by sharp cutting object on chest. MLC report of Ramsiya is Ex.P/3. Medical report of Gaura Devi is Ex.P/4 who also received deep cut by sharp cutting object near the armpit. DeceasedBantu @ Suresh had received two deep cut wounds. One on left side of chest over 7 rib and other on left thigh and deceased died due to excessive bleeding, postmortem report is Ex.P/5. There is nothing on record by way of cross-examination to disbelieve the medical documents and statement of Dr. Saurabh Jain (PW-5). 12. PW-8- Devendra Singh (ASI) has deposed regarding recording of Dehati Nalisi (Ex.P/1) and information of death and injuries as per prosecution case (Ex.P/12) and submitted that police constable from district hospital had brought Dehati Nalisi of complainant- Nema who is the wife of the deceased- Bantu @ Suresh on the basis of which FIR (Ex.P/11) was registered. 13. Investigation Officer (PW-9) has elaborately deposed about investigation and nothing on record has come by way of crossexamination on the basis of which it can be said that investigation was either delayed or biased or wrongly/illegally conducted, therefore, in the considered view of this Court and as also recorded by the trial Court, it is proved beyond reasonable doubt that accused quarreled with his mother-in-law- Gaura Devi who is injured as to why she was not sending her daughter- Rekha (PW-3) with him and on this quarrel, when deceased tried to intervene in the matter, he was stabbed twice by means of knife on his chest and on his left thigh and in this process also, stabbed Gaura Devi (PW-2) and Ramsiya (PW-4). Therefore, conviction under section 307 (two counts) of IPC has been correctly recorded against the appellant/accused for stabbing Gaura Devi & Ramsiya with an intention to kill them. Hence, appeal against conviction and sentence under section 307 (two counts) of IPC fails. 14. Regarding conviction under section 302 of IPC, the three Judges Bench of Hon'ble Apex Court in the case of Mathew alias Mathachan v. State of Kerala [ (1992) 1 SCC 74 ] has held as under:- “1. The appellant has been convicted for murdering his father-in-law, Thomas alias Pappachan. The facts reveal that the appellant and his wife, PW 3 were not carrying on well. The appellant has been convicted for murdering his father-in-law, Thomas alias Pappachan. The facts reveal that the appellant and his wife, PW 3 were not carrying on well. PW 3 had, therefore, left the appellant and was residing with her father. On October 7, 1978, at about 1 p.m. PW 3 took away her youngest child, Jiji, from the house of CW 4 where she was at the relevant point of time. On the appellant coming to know about the same, he went to the house of his father-in-law and a quarrel ensued. On the same day at about 6 p.m. while PW 1 and the deceased were passing by the shop of PW 2, the appellant met them and once again there was an exchange of abuses, grappling and ultimately the a appellant stabbed his father-in-law. There is no doubt that a scuffle had ensued between the two, both had fallen down and in the process the stab wounds were inflicted. The trial Court, therefore, thought that the accused was provoked by the removal of his child, Jiji, from the residence of CW 4 where she was kept and on account of that provocation a quar- brel had ensued between him and his father-in-law in the afternoon and later when they accidently met at the shop of PW 2. In the course of the quarrel there was an heated argument followed by a scuffle and there- after the knife wounds. In the backdrop of these facts, the trial court thought that the case fell within Exception 4 to section 300, IPC. The tri- cal Court, therefore, convicted the appellant under section 304 Part II and awarded a sentence of rigorous imprisonment for six years. The High Court on a re-appreciation of the evidence concluded as under: "There was no sudden fight in the heat of passion upon a sudden quarrel. The attack was all one-sided. Considering the manner of attack, the nature of the injuries caused, the parts of the body chosen for the attack and the type of weapon used, there need not be any hesitation to hold that the offence committed by the appellant is nothing short of murder." We are afraid, we cannot agree with this line of reasoning of the High Court. The facts clearly show that there was an estrangement between the appellant and his wife, PW 3. This had led to their separation. The facts clearly show that there was an estrangement between the appellant and his wife, PW 3. This had led to their separation. The youngest child, Jiji, was with the appellant and had been kept at the house of CW 4. When the appellant learnt that the said child was removed from the house of CW 4, he was agitated. He went to the house of his father-in-law where there was a quarrel. Later, they again met at the shop of PW 2 and a heated argument took place. In the course there- of there was a sudden fight which led to grappling. Both of them fell on the ground and it was in that heat of the moment that the appellant whipped out a knife which he was carrying and caused the injuries in question. We are, therefore, of the opinion that the view taken by the Sessions Court was not one which demanded interference by the High Court. The High Court is not right when it says that there was no sudden quarrel and that the injuries were not caused in the heat of passion. In fact, the High Court has not appreciated the mental state of the appellant when he learnt that his youngest child was removed from his custody. In the backdrop of the facts, we are of the opinion that the view taken by the learned Sessions Judge did not call for interference by the High Court. 2. In the result, we allow this appeal and set aside the order of the High Court and restore the order of the learned Sessions Judge.” 15. In the backdrop of the facts, we are of the opinion that the view taken by the learned Sessions Judge did not call for interference by the High Court. 2. In the result, we allow this appeal and set aside the order of the High Court and restore the order of the learned Sessions Judge.” 15. The facts of above citation are somewhat similar to the present case, therefore, as regards conviction under section 302 of IPC, act of culpable homicidal death was committed on sudden provocation as there was some dispute as to why Rekha was not being sent to her matrimonial home with accused/husband, therefore, culpable homicide was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner as it is immaterial in such cases which party offers the provocation or commits the first assault, therefore, the crime was committed which does not fall under section 302 of IPC but comes under section 300 exception 4 of IPC and therefore, comes under section 304 Part-I of IPC. Accordingly, appeal against conviction under section 302 of IPC is partly allowed and conviction under section 302 of IPC is altered to section 304 PartI of IPC. Regarding conviction under section 304 Part-I of IPC, looking to the facts and circumstances of the case that appellant has remained in actual judicial custody for more than 10 years, appellant is sentenced to rigorous imprisonment of 10 years with fine of Rs.500/- with default stipulation of 3 months. Regarding sentence under section 307 (two counts) of IPC which are seven years RI with fine of Rs. 500/- with default stipulation of 3 months, the same are maintained. 16. As per report received from the office of Jail Superintendent, Central Jail Gwalior dated 17.10.2023 vide letter No.5945/warrant/2023, the appellant/accused has remained in actual custody for 10 years, 2 months and 13 days and with remission 14 years, 8 months and 9 days. 17. Let a copy of this judgment be sent to the concerned jail authorities informing that if appellant is not wanted in any other offence subject to deposition of fine amount, he may be released forthwith. Let a copy of this judgment be also sent to the trial Court alongwith record for information and compliance. 18. 17. Let a copy of this judgment be sent to the concerned jail authorities informing that if appellant is not wanted in any other offence subject to deposition of fine amount, he may be released forthwith. Let a copy of this judgment be also sent to the trial Court alongwith record for information and compliance. 18. Accordingly, appeal is partly allowed to the extent as indicated above.