Madhya Pradesh High Court
Raghuvar Dayal @ Raghuvar vs State Of M.P. on 20 April, 2023
Author: Satyendra Kumar Singh
Bench: Rohit Arya, Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 20th OF APRIL, 2023
CRIMINAL APPEAL NO.468 OF 2013
BETWEEN:-
RAGHUVAR DAYAL ALIAS RAGHUVAR, S/O SHRI
GHANSHYAM VISHWAKARMA, AGED 66 YEARS,
OCCUPATION - AGRICULTURIST, R/O -
VILLAGE KARERA, POLICE STATION JIGNA,
DISTRICT DATIA, MADHYA PRADESH.
........APPELLANT
(BY SHRI ANAND PUROHIT - ADVOCATE)
AND
STATE OF MADHYA PRADESH, THROUGH
POLICE STATION JIGNA, DISTRICT DATIA.
........RESPONDENT
(BY MS. ANJALI GYANANI - PUBLIC PROSECUTOR)
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Reserved on : 11th of April, 2023
Pronounced on : 20th of April, 2023
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This Criminal Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Hon'ble Shri Justice
Satyendra Kumar Singh pronounced the following:
JUDGMENT
2 The appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (2 of 1974) (for brevity "Cr.P.C.") being aggrieved by the judgment dated 6/5/2013, passed by the Court of Sessions Judge, Datia, District Datia (Madhya Pradesh) in Sessions Trial No.159/2012, whereby the appellant has been convicted for the offence punishable under Section 302 of Indian Penal Code (for brevity "IPC") and sentenced him as under:-
Conviction Sentence
Section Act Imprisonment Fine Imprisonment
in lieu of fine
302 IPC Life Rs. SI for 3 years
Imprisonment 10,000/-
2. The prosecution case in brief is as follows:-
(i) Complainant- Phoolkunwar and appellant Raghuvar both are residents of village Garera, District Datia and their agricultural lands are adjacent to each other. On 9/8/2012 at about 14:30 hours, when complainant and her husband Brikhbhan were constructing hut at their agricultural land and their cattle were grazing at the boundary of their agricultural land, appellant and his brothers co-accused Rameshwar and Chatur Singh by raising an objection told them to keep their cattle away.
Complainant's husband Brikhbhan by saying that the cattle are grazing at the boundary of his agricultural land, denied to keep them away. On this issue, the appellant and co-accused persons came there armed with an axe and wooden sticks. Appellant assaulted on the head of Brikhbhan with an axe, while co-accused persons assaulted on his head with wooden sticks. Brikhbhan tried to run away from the spot, then appellant again assaulted on his head with an axe, due to which he fell down on the ground. After hearing screams of the complainant, her 3 brother-in-law Bhagwat Singh came there, then appellant alongwith co- accused persons fled away from the spot. Complainant with the help of his brother-in-law Bhagwat Singh took her husband Brikhbhan to District Hospital, Datia where he was declared dead.
(ii) SI, A.K. Solanki went to District Hospital, Datia and recorded Dehati Nalishi, Ex.P/4, on the basis of the statements made by the complainant and sent the same immediately through Constable Balram Singh to Police Station Jigna, District Datia, where on the basis of the aforesaid Dehati Nalishi, an FIR bearing Crime No.92/2012, Ex.P/5, was registered against the appellant and co-accused persons. SI, A.K. Solanki called the witnesses issuing Safina form, Ex.P/16, prepared Naksha Panchayatnama, Ex.P/17, of the body of the deceased- Brikhbhan and sent the same for postmortem examination.
(iii) On the same day, at about 16:50 hours, Dr. B.K. Verma conducted the postmortem of the body of the deceased and found four incised wound measuring about 4-5 cm on his head. One incised wound was found on the occipital region, one behind left ear, one over right parietal region and one over occipito region alongwith other injury. He prepared the postmortem report, Ex.P/2, and opined that the above injuries were caused by hard & sharp object and hard & blunt object, and the death of the deceased was caused due to cardiogenic and haemorrhagic shock, as a result of trauma within 24 hours from the time of postmortem examination.
(iv) On 10/8/2012 at about 9:50 hours, SI A.K. Solanki went to the place of occurrence, prepared the spot map, Ex.P/19, and seized blood soaked soil alongwith plain soil from the place of occurrence as per seizure memo, Ex.P/18. On the same day, he arrested the co-accused 4 persons Rameshwar and Chatur Singh as well as appellant as per arrest memo Ex.P/7 to P/9 respectively. He recorded the disclosure statement, Ex.P/12, of the appellant, on the basis of which at his instance, he seized an axe as per seizure memo, Ex.P/15. He vide letter Ex.P/20 sent all the seized articles to FSL, Gwalior for forensic examination, obtained FSL report, Ex.P/2, and after completion of investigation, filed the charge- sheet against the appellant and co-accused persons before the Court of Chief Judicial Magistrate, Datia, who committed the case to the Court of Sessions Judge, Datia, District Datia.
3. Learned Trial Court considering the material prima facie available on record framed the charges under Sections 302 or 302 r/w 34 of IPC against the appellant and co-accused persons, namely, Rameshwar Vishwakarma and Chatur Singh, who abjured their guilt and prayed for trial.
4. Learned Trial Court after appreciating the oral as well as documentary evidence available on record, acquitted the co-accused persons, namely, Rameshwar Vishwakarma and Chatur Singh from all the charges, while convicted the appellant for the offence punishable u/S 302 of IPC and sentenced him as stated in para 1 of this judgment.
5. Being aggrieved by the said judgment of conviction and order of sentence, the appellant has preferred this appeal for setting aside the impugned judgment and discharging him from the aforesaid charge framed against him.
6. Learned counsel for the appellant submits that since complainant- Phoolkunwar has herself, in her statement recorded during trial, deposed that on the date of incident quarrel took place all of sudden between the complainant's husband Brikhbhan and appellant on the issue of grazing 5 cattle at the boundary of their agricultural land, wherein deceased- Brikhbhan sustained injuries on his head, therefore, it is apparent that the deceased- Brikhbhan was assaulted in a heat of passion, and the alleged act of the appellant clearly comes under the purview of exception 4 to Section 300 of IPC. Appellant is an old aged person, aged about 75 years and has already suffered about 10 years, 5 months and 23 days incarceration, out of the sentence of life imprisonment awarded to him by the Trial Court. Thus, in view of the aforesaid, the benefit of exception 4 to Section 300 of IPC may be given to the appellant and while upholding his conviction, the sentence awarded to him may be reduced to the period already undergone by him.
7. Per contra, learned counsel for the respondent/State has opposed the prayer and submits that during cross-examination of the complainant- Phoolkunwar it has been suggested on behalf of the appellant himself that there were several property disputes between the appellant and deceased and they were having animosity with each other, therefore, the act of the appellant cannot be said to be falling under the purview of exception 4 to Section 300 of IPC. Prosecution has proved its case beyond reasonable doubt. Appeal is devoid of merits. Therefore, confirming the judgment of conviction and order of sentence, the appeal filed by the appellant deserves to be dismissed.
8. Heard learned counsel for both the parties and perused the record.
9. Prosecution in its support has examined in all 10 prossecution witnesses including deceased's brother Bhagwat (PW-8) and deceased's wife complainant- Phoolkunwar (PW-9) as eyewitnesses. Other material witnesses are Dr. B.K. Verma (PW-1), who conducted the postmortem examination of the body of the deceased and SI, A.K. Solanki (PW-10), 6 who investigated the case.
10. From the statements of deceased's brother Bhagwat (PW-8) and deceased's wife complainant- Phoolkunwar (PW-9), this fact is established that on the date of incident, i.e. 9/8/2012, at about 14-14:30 hours, complainant-Phoolkunwar and her husband deceased-Brikhbhan were constructing a hut at their agricultural land, which is adjacent to the land of the appellant. Complainant-Phoolkunwar (PW-9) deposed that at that time her cattle were tied at the boundary of her agricultural land, on which appellant objected and told her husband-Brikhbhan to keep the cattle away from the boundary of the agricultural land and when deceased-Brikhbhan refused to keep the cattle away saying that the same were already tied, appellant and co-accused persons armed with an axe and wooden sticks, came there and assaulted on his head with an axe. She further deposed that when her husband tried to run away from the spot, appellant again assaulted on his head with an axe, due to which he fell down. Bhagwat (PW-8) has turned hostile, but deposed that when he reached the spot, he found his brother-Brikhbhan in an injured condition.
11. SI, A.K. Solanki (PW-10) deposed that on the same day at about 15:45 hours, he recorded Dehati Nalishi Ex.P/4, on the basis of the statement made by the complainant, wherein she stated that appellant assaulted her husband deceased-Brikhbhan on his head with an axe. Dr. B.K. Verma (PW-1) deposed that on the same day at about 16:50 hours, he conducted the postmortem examination of the body of the deceased and found following injuries on his body :-
Four incised wound mark of around 4-5 cm long bone deep present over skull. One 7 incised wound was found on the occipital region, one behind left ear, one over right parietal region and one over occipito pareital region. No other injury seen all over the body.
12. Dr. B.K. Verma (PW-1) deposed that he prepared the postmortem report, Ex.P/2, and opined that all the above injuries found on the body of the deceased-Brikhbhan were antemortem and were caused by hard & blunt and hard & sharp object and the cause of his death was cardiogenic & haemorrhagic shock due to trauma to skull as a result of above injuries, within 24 hours of the medical examination and the nature of his death was homicidal.
13. Since during course of arguments, appellant has not challenged the occurrence of the incident, and aforesaid medical evidence, therefore, there is no reason to disbelieve the statements of the complainant- Phoolkunwar (PW-9), which find support from Dehati Nalishi, Ex.P/4, and FIR, Ex.P/5, lodged just after the incident and also from the statements of Dr. B.K. Verma (PW-1) and his postmortem report, Ex.P/2, that on the date of incident, i.e. 9/8/2012 at about 14- 14:30 hours, a quarrel took place between the appellant and complainant's husband deceased- Brikhbhan, wherein appellant assaulted him with an axe on his head and caused injuries, as mentioned above, as a result of which, he succumbed to the injuries sustained by him.
14. So far as the issue whether appellant assaulted deceased
-Brikhbhan with an intention to commit his murder is concerned, as per the deposition of complainant-Phoolkunwar (PW-9) hreself, her cattle were tied at the boundary of her agricultural land and when the 8 appellant objected to the same and said to keep them away from the agricultural field, then on refusal by complainant's husband to do so, a quarrel started between the appellant and complainant's husband, during which appellant inflicted axe blows on the head of the deceased- Brikhbhan, as a result of which, he succumbed to the injuries sustained by him. Thus, it appears that the incident took place all of a sudden and there was no premeditation to commit the crime that too murder of complainant's husband- Brikhbhan.
15. In this regard judgment passed by Honble the Supreme Court in the case of K. Ravi Kumar vs. State of Karnataka reported in (2015) 2 SCC 638 can be relied upon. Relevant paras are as under:
9. Before we turn to the facts of this case, it is apposite to take note of the principle of law laid down by this Court as to in which circumstances, the accused is held entitled to claim the benefit of Exception 4 to Section 300 IPC thereby is entitled to seek conversion of the offence committed by him from murder to culpable homicide not amounting to murder. Indeed, the principle of law on this issue remains no longer res integra and settled by a series of decisions of this Court. What has varied is its application to every case.
10. Exception 4 to Section 300 reads as under:
"300. Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
................................................ 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 having taken undue advantage or acted in a cruel or unusual manner.9
Explanation - It is immaterial in such cases which partly offers the provocation or commits the first assault."
11. In Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217, this Court on the same issue held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception provided he has not acted cruelly. This Court held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300, this Court observed:
"7. To invoke this exception four requirements must be satisfied, namely,
(i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly......."
(Emphasis supplied)
12. In Ghapoo Yadav and Ors. v. State of M.P., (2003) 3 SCC 528, this Court held that in a heat of passion there must be no time for the passion to cool down 10 and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 IPC. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite:
"10. .......... The help of Exception 4 can be invoked if death is caused:
(a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in the Indian Penal Code. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".(Emphasis supplied) xxx xxx xxx "11......... After the injuries were inflicted the injured had fallen down, but there is no material to 11 show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused-appellants had come prepared and armed for attacking the deceased. ............. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner. That being so, Exception 4 to Section 300 IPC is clearly applicable......."
(Emphasis supplied)
13. In Sukbhir Singh v. State of Haryana, (2002) 3 SCC 327, the appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court this Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 to Section 300 IPC. In cases where after the injured had fallen down, the appellant-accused did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. This Court observed:
"19..........All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with bhala caused injuries at random and thus did not act in a cruel or unusual manner."
(Emphasis supplied)
14. In Mahesh v. State of M.P., (1996) 10 SCC 668,where the appellant had assaulted the deceased in 12 a sudden fight and after giving him one blow he had not caused any further injury to the deceased which fact situation was held by this Court to be sufficient to bring the case under Exception 4 to Section 300 of IPC. This Court held:
"4. ..............Thus, placed as the appellant and the deceased were at the time of the occurrence, it appears to us that the appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heels. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault PW 2 or PW 6 who were also present along with the deceased and who had also requested the appellant not to allow his cattle to graze in the field of PW 1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception 4 to Section 300 IPC is clearly attracted to the case of the appellant and the offence of which the appellant can be said to be guilty would squarely fall under Section 304 (Part I) IPC."
(Emphasis supplied)
15. The law laid down in the aforesaid cases was considered and applied recently by this Court in the case reported in Ankush Shivaji Gaikwad vs. State of Maharashtra, (2013) 6 SCC 770. In this case also, the appellant-accused while passing on the field of the deceased on a spur of moment indulged in heated talk with the deceased which resulted in hitting a blow by the appellantaccused to the deceased with the rod causing death of the deceased. Justice T. S. Thakur, speaking for the Bench, accepted the plea raised by the appellant-accused and accordingly altered the sentence falling under Section 304 Part II IPC by giving him the benefit of Exception 4 of Section 300 IPC. It was held by this Court as under:
"27......... we are of the opinion that the nature of the simple injury inflicted by the accused, the part of the body on which it was inflicted, the weapon 13 used to inflict the same and the circumstances in which the injury was inflicted do not suggest that the appellant had the intention to kill the deceased. All that can be said is that the appellant had the knowledge that the injury inflicted by him was likely to cause the death of the deceased. The case would, therefore, more appropriately fall under Section 304 Part II IPC."
16. Keeping in view the approach of this Court for giving benefit of Exception 4 to Section 300 IPC in cases mentioned above and applying the same to the facts of this case, we are inclined to give benefit of Exception 4 to Section 300 IPC to the appellant by altering his sentence awarded to the appellant punishable under Section 304 Part II IPC. This we say so in the facts of this case for more than one reason. Firstly, even according to the prosecution, there was no premeditation in the commission of crime.
Secondly, there is not even a suggestion or we may say conclusive evidence that the appellant had any pre-determined motive or enmity to commit the offence against the deceased leave alone a serious offence like murder. Thirdly, incident that occurred was due to sudden quarrel which ensued between the appellant-accused and the deceased-Padma on the issue of going to village Mandya to see the ailing appellant's father. The appellant, on receiving this news, had become upset and, therefore, his insistence to see his ailing father immediately was natural and at the same time, Padma's refusal to leave could lead to heated exchange of words between them. True, it is that it reached to its extreme inasmuch as the appellant in heated exchange of words lost his mental balance and poured kerosene on Padma setting her to burn. However, the fact remains that it was an outcome of sudden outburst and heated exchange with no predetermined motive per se to kill her. Fourthly, no conclusive evidence was adduced by the prosecution to prove any kind of constant quarrel ever ensued in the last 9 long years between the couple and 14 that too for a cause known to others which could lead to killing Padma or whether any unsuccessful attempt was ever made by the appellant to kill her in past and lastly, we have not been able to see from the postmortem report that any stab injury on Padma's body was caused nor prosecution was able to prove that any blood stained knife from the place of occurrence was recovered at the instance of the appellant or of any witness.
17. In the light of the aforementioned reasons, which, in our opinion, emerge from the evidence on record, we are of the considered view that these reasons are sufficient to give benefit of Exception 4 to Section 300 IPC to the appellant and enables the Court to hold that the offence in question was not murder but it was an offence of culpable homicide not amounting to murder as specified in Exception 4 to Section 300 and hence punishable under Section 304 part II IPC
18. In the result, we allow the appeal but only to the extent that instead of Section 302 IPC, the appellant shall stand convicted for the offence of culpable homicide not amounting to murder punishable under Section 304 Part II IPC and accordingly sentenced to undergo rigorous imprisonment for a period of 10 years. The conviction and sentence imposed under Section 498-A as also the fine imposed upon the appellant and the default sentence awarded to him shall remain unaltered which shall run concurrently.
16. In view of the aforesaid, alleged act of the appellant in allegedly assaulting the deceased can very well be said to fall within exception 4 to Section 300 of IPC, and learned Trial Court has committed an error in holding the appellant guilty for the offence punishable under Section 302 of IPC. Hence, in our considered view the act of the appellant would fall under Section 304 Part-II of IPC and not under Section 302 of IPC. Accordingly, the conviction of the appellant for the offence 15 under Section 302 of IPC is set aside and he is convicted for the offence under Section 304 Part-II of I.P.C.
17. So far as the issue with regard to the quantum of sentence awarded to him for the aforesaid offence is concerned, as already pointed out, the dispute arose on a very petty issue of grazing cattle at the boundary of the agricultural land of the complainant and the alleged incident took place in the heat of passion without any premeditation upon a sudden quarrel, the incident took place in the year 2012 and appellant has suffered till now about 10 years, 5 months and 23 days incarceration. Under these circumstances, this Court is of the considered opinion, that the jail sentence already undergone by the appellant would serve the justice.
18. In this regard, the judgment passed by Hon'ble the Apex Court in the case of Raj Singh Vs. State of Haryana reported in (2000) 10 SCC 151 can be relied upon, wherein the accused was awarded the sentence already undergone by him.
19. Accordingly, for the offence punishable 304 Part-II of IPC, the appellant is awarded jail sentence which has already been undergone by him. The fine amount as well as corresponding default stipulation, as awarded by the Trial Court, shall remain the same.
20. With aforesaid modifications, this criminal appeal filed against the judgment dated 6/5/2013 passed by the Court of Sessions Judge, Datia, District Datia (Madhya Pradesh) in Sessions Trial No.159/2012 is disposed of accordingly.
21. The appellant is in jail. Subject to deposit of fine amount, if not already deposited, he be released forthwith, if not required in any other offence.
1622. The Registry is directed to immediately supply a copy of this judgment to the Appellant, free of cost.
23. Let the record of the Trial Court be sent back immediately, along with copy of this judgment, for necessary information and compliance.
24. Appeal succeeds and is Allowed in part.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Arun*
ARUN KUMAR MISHRA
2023.04.20 16:25:02 +05'30'