Madhya Pradesh High Court
Munna @ Rashid Mohd. vs The State Of M.P. on 30 November, 2017
Author: Anurag Shrivastava
Bench: Anurag Shrivastava
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Criminal Appeal No. 109 of 1995
Parties Name Munna @ Rashid Mohammad
vs
The State of Madhya Pradesh
Bench Constituted Hon'ble Shri Justice S.K. Gangele &
Hon'ble Shri Justice Anurag Shrivastava
Judgment delivered by Hon'ble Shri Justice S.K. Gangele
Whether approved for Yes/No
reporting
Name of counsels for parties For appellant: Shri D.D. Bhargav,
Amicus Curiae.
For respondent/State: Shri S.D. Khan,
Government Advocate.
Law laid down Significant paragraph numbers (J U D G M E N T) Pronounced on : 30.11.2017
1. Appellant has filed this appeal against the judgment dated 31.12.1994 passed in Sessions Trial No.108/1994. The trial Court held the appellant guilty for commission of offence punishable under Section 302 of Indian Penal Code and awarded sentence of life imprisonment.
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Cr.A. No.109 of 19952. Prosecution case in brief is that deceased, who was working as Constable at Balaghat, had gone on 03.02.1994 to purchase a cooking gas cylinder from the gas dealer. Anurag Mishra was issuing slips for delivery of gas cylinders. There was a queue and the deceased Neerulal was also standing in the queue. When his number came, Anurag Mishra stopped issuing slips and told him that gas cylinders had come to an end and after receipt of load of gas cylinders, he would issue the slips. Thereafter, there was a quarrel between Anurag Mishra, appellant Munna @ Rashid and the deceased. There was a scuffle (dhakka mukki) between them.
Appellant and Anurag Mishra had abused the deceased. In that event, appellant Rashid had taken out a lathi from the place and he had inflicted blows of lathi on the person of the deceased. The deceased was died.
3. Report of the incident was lodged at the police station.
Police conducted investigation and filed charge-sheet against the appellant and two others. The appellant abjured the guilt and pleaded innocent. The trial Court, after trial, held the appellant guilty for commission of offence and awarded sentence as mentioned above in the judgment. Other accused persons were acquitted by the trial Court.
4. Learned Amicus Curiae for the appellant has out rightly submitted that he is not pressing the appeal for acquittal,
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Cr.A. No.109 of 1995however, he has submitted that even the evidence of the prosecution be accepted as it is, the offence alleged to be committed by the appellant would fall under Section 304 part II of IPC. The appellant has already suffered jail sentence of near about seven years including remission, hence, the sentence of the appellant be awarded as already undergone.
5. Learned Government Advocate has submitted that the prosecution has established the guilt of the appellant and the trial Court has rightly convicted the appellant and awarded proper sentence.
6. PW-1 Kishor, is the brother of the deceased. He deposed that the deceased had gone to purchase gas cylinder. He was in the queue. Anurag Mishra had been issuing slips. When the number of the deceased came, Anurag Mishra told him that there was no gas sylinder available. In that event, there was some hot talk between Anurag Mishra and the deceased. Anurag Mishra abused the deceased. The appellant, who was standing there, had started scuffle (dhakka mukki) with the deceased. There was a scuffle between the appellant, Anurag Mishra and the deceased.
In that event, the appellant had taken out a wooden stick (ubhari) and inflicted a blow on the deceased. We had tried to save the deceased. Thereafter, the report was lodged at the police station
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Cr.A. No.109 of 1995which is Ex.P1 and I signed the same. When I was taking the deceased to Bhilai Hospital, he was died.
7. PW-2 Vijay Krishna Gupta deposed that there was a big queue and there was scuffle between some persons. Same facts have been deposed by PW-3 Vinod Chile that there was some scuffle (guttham gutthi). PW-8 Smt. Gendabai, is the mother of the deceased. She deposed that the deceased had gone to bring a gas cylinder.
8. PW-12 Dr. C.K. Paradhi performed autopsy of the deceased. He deposed that I noticed two injuries on the person of the deceased i.e. one abrasion on forehead above left eye 1/2X1/3 inch and one abrasion 1/3X1/3 inch on the forehead above left eye. On inspection, I noticed that there was fracture of left frontal bone which had gone upto left temporal bone from frontal bone.
There was blood clotting in extradural region, which had pressed the brain. There was subdural hematoma and left frontal lobe of the brain was cut. Other organs were normal. The deceased died due to the injuries suffered by him on the head. The injuries could be caused by lathi.
9. PW-14 D. R. Sharma is the Investigating Officer, who conducted the investigation. He deposed that he arrested the appellant and on his memorandum Ex.P16, a stick was seized vide seizure memo Ex.P17. Some cloths were also seized.
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Cr.A. No.109 of 199510. From the evidence of PW1 and other witnesses, this fact has been proved that the deceased was in queue for purchasing gas cylinder and when his turn came, there was no cylinder. The person, who was issuing the slips stopped issuing the same. In that event, there were some hot talks and scuffle between Anurag Mishra and the deceased. The appellant was also present on the place. He had taken out a stick and inflicted blows at the deceased. It is proved that there was no intention of the appellant to kill the deceased, neither he was armed with any weapon. He had taken out the stick from the place and inflicted two blows on the person of the deceased, as deposed by the doctor who conducted postmortem of the deceased, due to which deceased died.
11. The Hon'ble Apex Court in the case of Chenda alias Chanda Ram vs State of Chhattisgarh, AIR 2013 (Supp) 156 :
(2013) 12 SCC 110 has held as under about murder or culpable homicide:
"11. The landmark judgment in Virsa Singh vs. State of Punjab AIR 1958 SC 465, draws a distinction between "Thirdly" of Section 300 and Exception 4 thereunder. The following are the four steps of inquiry involved:
i. first, whether bodily injury is present; ii. second, what is the nature of the injury;
iii. third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or
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unintentional or that some other kind of injury was intended; and iv. fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.
12. In State of Andhra Pradesh vs. Rayavarapu Punnayya and Another (1976) 4 SCC 382, it was held that culpable homicide without the special characteristics of murder is culpable homicide not amounting to murder, falling under Section 304 of the Code. It was further held that there are three degrees of culpable homicide. The first is murder under Section 300; second, culpable homicide not amounting to murder falling under the first part of Section 304; and third is culpable homicide not amounting to murder falling under the second part of Section 304. To quote: -
"12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice- versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section
304."
13. In Pappu vs. State of Madhya Pradesh (2006) 7 SCC 391, the Court almost exhaustively dealt with the parameters of Exception 4 to Section 300 of the Code. It was held that the said Exception
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Cr.A. No.109 of 1995can be invoked if death is caused (i) without premeditation; (ii) in a sudden fight; (iii) without the offender's having taken undue advantage or acting in a cruel or unusual manner; and (iv) the fight must have been with the person killed. It was further held that all the four ingredients must be found in order to apply Exception 4. To quote:
"13. ... 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 IPC. 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 cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
14. It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 IPC is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body on which it was given and several such relevant factors."
14. In Jagriti Devi vs. State of Himachal Pradesh (2009) 4 SCC 771, it was held that the
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Cr.A. No.109 of 1995expressions "intention" and "knowledge" postulate the existence of a positive mental attitude. It was further held that when and if there is intent and knowledge, then the same would be a case under first part of Section 304 and if it is only a case of knowledge and not intention to cause murder by bodily injury, then the same would be a case of second part of Section 304. To quote:
"26. Section 299 and Section 300 IPC deal with the definition of "culpable homicide"
and "murder" respectively. Section 299 defines "culpable homicide" as the act of causing death:
(i) with the intention of causing death, or
(ii) with the intention of causing such bodily injury as is likely to cause death, or
(iii) with the knowledge that such act is likely to cause death.
A bare reading of the section makes it crystal clear that the first and the second clauses of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. Both the expressions "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed.
27. Section 300 IPC, however, deals with murder although there is no clear definition of murder provided in Section 300 IPC. It has been repeatedly held by this Court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa.
28. Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge, then the same
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Cr.A. No.109 of 1995would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II. The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of this Court."
15. In Gurmukh Singh vs. State of Haryana (2009) 15 SCC 635, after scanning all the previous decisions where the death was caused by a single blow, this Court indicated, though not exhaustively, a few factors to be taken into consideration while awarding the sentence. To quote:
"23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur of the moment;
(c) The intention/knowledge of the accused while inflicting the blow or injury;
(d) Whether the death ensued instantaneously or the victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the accused;
(g) Whether the injury was caused without premeditation in a sudden fight
(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
(i) The criminal background and adverse history of the accused;
(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to
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cause death but the death was because of shock;
(k) Number of other criminal cases pending against the accused;
(l) Incident occurred within the family members or close relations;
(m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.
24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused."
12. On the basis of the principle of law, judgments of the Hon'ble Apex Court and the facts of the present case, in our opinion, the offence alleged to be committed by the appellant would fall under Section 304 Part II of IPC because there was a sudden quarrel. There was no intention to kill the deceased. The appellant had taken out the stick and inflicted two blows at the deceased. One blow was severe, which had resulted fracture of left frontal bone, due to which the deceased was died. The appellant has already undergone jail sentence of near about seven years including remission, hence, in our opinion, it would be just
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Cr.A. No.109 of 1995and proper to award sentence to the appellant as already undergone.
13. Consequently, the appeal filed by the appellant is partly allowed. The conviction and sentence awarded by the trial Court is hereby set aside. The appellant is convicted for commission of offence punishable under Section 304 part II of IPC and he is awarded sentence RI for seven years. He has already undergone the jail sentence. He is on on bail. His bail bonds are discharged.
(S.K. Gangele) (Anurag Shrivastava)
Judge Judge
Digitally signed by VINOD KUMAR
vkt TIWARI
Date: 2017.12.01 14:54:44 +05'30'