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2024 DIGILAW 309 (MP)

Mangilal v. State of M. P.

2024-03-21

ANIL VERMA, VIVEK RUSIA

body2024
ORDER With the consent of parties, heard finally. 1. The appellant has filed the present appeal being aggrieved by the judgment of conviction dated 5.12.2016 passed by Additional Sessions Sarangpur, District Rajgarh (M.P.) in Session Trial No.206/2012 whereby the appellant has been convicted under section 302 of IPC and sentenced to undergo Life Imprisonment with fine of Rs.2,000/- with default stipulation. The case of the prosecution, in brief, is as follows: - 2. On 24.10.2011 at near about 10.00, Banesingh was having a hot conversation with the wife of this appellant Suganbai. All of a sudden, this appellant came and told Banesingh that how he is abusing his wife and thereafter this appellant went inside the house and came back with a Lathi in his hand, he gave one blow on the head of Banesingh and he started bleeding and appellant ran away from the spot. Banesingh became unconscious, he was taken to the hospital by Veeramsingh Sondhya. The matter was reported to the police, an FIR at crime No.201/2011 was registered under section 294, 323 & 506 of IPC against this appellant. The MLC was conducted by doctor and according to which a lacerated wound of size 6cm X 5 cm was found on the head and one abrasion thereafter, after two days Banesingh died. The postmortem was carried out by Vinay Kumar Jha (PW/10) and as per his opinion, the cause of death was injury on the vital part of the brain leading to coma and death. Hence, Section 302 of IPC was added in the FIR, this appellant was arrested, remaining investigation was carried out and after completion of investigation charge-sheet was filed and the appellant denied the charge, therefore, the prosecution was called upon to prove the charges. 3. The prosecution examined 11 witnesses and exhibited 16 documents. In defence, appellant did not examine any witness. After appreciating the evidence that came on record the appellant was convicted as stated above. 4. Learned counsel for the appellant submits that he is not assailing the findings recorded by the trial Court in respect of date on incident, time, cause of death and complicity of this appellant. In defence, appellant did not examine any witness. After appreciating the evidence that came on record the appellant was convicted as stated above. 4. Learned counsel for the appellant submits that he is not assailing the findings recorded by the trial Court in respect of date on incident, time, cause of death and complicity of this appellant. However, he submits that the appellant has wrongly been convicted under section 302 of IPC as it is a case of sudden provocation and out of anger this appellant gave a blow on the head of Banesingh which is evident from the statement of Mangilal (PW/2) and Kamlabai (PW/3), therefore, at the most he is liable to be convicted under section 302 Part-II of IPC for which he has also undergone 11 years in the jail. Learned counsel further submits that this appellant is not a habitual criminal. All of a sudden, he brought the stick from his house and gave a single blow on the head of Banesingh. The FIR was initially registered under section 294, 323 & 506 of IPC and not even under section 307 of IPC. Hence, the appellant has wrongly been convicted under section 302 of IPC, therefore, the conviction may kindly be altered by acquitting him under section 302 of IPC. 5. Learned Government Advocate for the respondent / State opposes the aforesaid prayer by submitting that the appellant gave a blow with a stick on the head of deceased Banesingh intentionally which is a vital part of the body, therefore, this is a case of murder hence, the appellant has rightly been convicted under Section 302 of IPC. We have heard the learned counsel for the parties at length and perused the record of the case. 6. It is correct that as per the statement of Mangilal (PW/2) and Kamlabai (PW/3) the deceased was having conversation with the wife of present appellant-Mangilal to which this appellant objected and out of anger he brought the stick and gave a blow on the head of Banesingh due to which he died. The FIR was lodged by Mangilal (PW/2) in which he has not stated that this appellant gave a blow by means of stick with an intention to kill. He remained under treatment for two days and thereafter, he expired. The FIR was lodged by Mangilal (PW/2) in which he has not stated that this appellant gave a blow by means of stick with an intention to kill. He remained under treatment for two days and thereafter, he expired. It is not a pre-planned murder but a case where in a single blow by means of Lathi which is not a lethal weapon deceased died. 7. After undergoing incarceration for number of years in the jail, the only ground on which this appellant is assailing his conviction and sentence is that proven offence will not travel more than section 304 Part-II of IPC. 8. 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. 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.” 9. 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.” 9. The Hon'ble Supreme Court has laid down the law in the case of 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 S.302 and altered to one under section 304 part-I of IPC. Relevant para 7 of the judgment reads thus: “7. In the facts and circumstances noted above, there appears merit in the submission advanced by learned counsel for the appellant that in view of Exception 1 or Exception 4 in section 300 of the IPC the case made out against the appellant is that of culpable homicide not amounting to murder. It would be natural for the family members of juvenile offender Balu on hearing his cries, to rush for his help and when injury on the appellant has also been proved there is sufficient material to infer the reasonable possibility of a grave and sudden provocation. The assault on the deceased, in absence of intention to cause death could be on account of sudden fight without premeditation, in the heat of passion and upon a sudden quarrel. We therefore feel persuaded to and do set aside the conviction of the appellant under section 302 IPC and substitute the same with conviction under section 304 Part I of the IPC. The certificate of imprisonment available on record discloses that the appellant has by now undergone more than 12 years of actual imprisonment. The aforesaid period, in our estimate is sufficient to meet the ends of justice. Hence the sentence of imprisonment for life is reduced to imprisonment for the period already undergone by the appellant. In view of such modification in the sentence, the appellant is directed to be released from custody forthwith if not required to be kept in custody in connection with any other criminal case. The appeal stands allowed to the aforesaid extent.” 10. In case of Hardev Bhanji Joshi v. State Of Gujarat reported in AIR 1993 SC 297 the apex Court has held as under- “5. The appeal stands allowed to the aforesaid extent.” 10. In case of Hardev Bhanji Joshi v. State Of Gujarat reported in AIR 1993 SC 297 the apex Court has held as under- “5. Even, according to P.W. 2, A-2 dealt only one blow. The nature of the injury shows that the sharp edge of the axe was not used, he whole thing happened in a sudden manner. Under these circumstances Clause I of section 300 I.P.C. is not attracted. If A2 had the intention to cause death, one would expect him to use the sharp edge of the axe. The very fact that he used the blunt side of the axe shows that he had no intention to. cause the death. Further it is not a premeditated act. Now coming to clause III of section 300 I.P.C., admittedly he caused only one injury with the blunt side of the axe which unfortunately resulted in fracture of skull bone. Further this happened during the quarrel. Under these circumstances, it is difficult to hold that he intended to cause that particular injury which the Doctor found to be sufficient in the ordinary course of nature to cause death. Under similar circumstances, the courts have held that the offence punishable would be one of culpable homicide as the knowledge that he was likely to cause death by such an act can be attributed to the accused. Accordingly, we set aside the conviction of the appellant under section 302 I.P.C. and the sentence ofimprisonment for life thereunder. Instead, we convict him under section 304 Part II and sentence him to five years R.I. He shall surrender and serve out the sentence. The appeal is partly allowed.” 11. In view of the above discussion and taking support from the above verdicts of the apex Court, we hereby confirm all the findings recorded by the learned Additional Session Judge except the conviction under section 302 I.P.C. which is hereby altered to section 304 Part-II of IPC, and accordingly sentence is reduced from Life Imprisonment to the period already undergone. The appellant-Mangilal is hereby ordered to be set at liberty forthwith, if he is not required to stay in jail in connection with any other case. 12. With the aforesaid, this Criminal Appeal is partly allowed to the extent indicated above. The appellant-Mangilal is hereby ordered to be set at liberty forthwith, if he is not required to stay in jail in connection with any other case. 12. With the aforesaid, this Criminal Appeal is partly allowed to the extent indicated above. Let the record of the trial Court be sent back along with a copy of this judgment.