Madhya Pradesh High Court
Gopal Kushwah vs State Of M.P. on 24 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 24th OF APRIL, 2023
CRIMINAL APPEAL NO.824 OF 2013
BETWEEN:-
GOPAL, S/O HALKAIYA KUSHWAH, AGED - 40
YEARS, R/O- VILLAGE JHITIYA, POLICE
STATION ARON, DISTRICT GUNA (MADHYA
PRADESH).
........APPELLANT
(BY SHRI ANAND PUROHIT - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION ARON, DISTRICT GUNA
(MADHYA PRADESH).
........RESPONDENT
(BY MS. ANJALI GYANANI - PUBLIC PROSECUTOR)
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Reserved on : 18th of April, 2023
Pronounced on : 24th 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 This jail appeal, under section 383 of the Code of Criminal Procedure, 1973 (for brevity "Cr.P.C."), has been preferred against the judgment dated 29/1/2010, passed by the Court of Additional Judge to the Court of 4th Additional Sessions Judge (Fast Track), Guna (M.P.) in S.T. No.362/2009, whereby the appellant has been convicted under Sections 302, 324 and 323 of the Indian Penal Code, 1860 (for brevity "IPC") and sentenced him as under:-
Conviction Sentence
Section Act Imprisonment Fine Imprisonment
in lieu of fine
302 IPC Life Rs.200/- RI for 1 month
Imprisonment
324 IPC RI for 1 year
323 IPC RI for 6 months
2. The prosecution case in brief is as follows:
(i) On 14/8/2009 at about 4:00 hours, when complainant-Sunita was grinding wheat in the varandah of her house, she saw the appellant throwing his son into a well situated in front of her house. Complainant got scared and told about the incident to her mother-in-law Panbai, and thereafter, to Sarpanch-Kamal Singh, who telephonically informed the police. After receiving the information, SHO, P.S. Aron, Arvind Singh Kushwaha, rushed to the place of occurrence, called the witnesses issuing Safina Form, Ex.P/2, took out the dead body of the deceased Bharosa, aged about 7-8 months, and prepared Naksha Panchayatnama, Ex.P/3, of the dead body of the deceased.
(ii) On the same day, at about 9.30 hours, he recorded Dehati Nalishi, Ex.P/1, on the basis of the statements of complainant Sunita, on the basis of which FIR, Ex.P/15, bearing Crime No.258/2009 and Merg 3 Intimation Report, Ex.P/16, were registered at P.S. Aron, District Guna.
He prepared the spot map, Ex.P/5, seized water of the well in a plastic bottle as per seizure memo, Ex.P/12, sent the dead body of the deceased to C.H.C., Aron for postmortem examination vide letter, Ex.P/19. He recorded the statements of prosecution witnesses, wherein appellant's wife-Guddibai, mother-Nannibai and father-Halkaiya stated that on the date of incident at about 4:00 hours a quarrel had taken place between the appellant and his wife-Guddibai and appellant assaulted Guddibai, and when his father-Halkaiya and mother-Nannibai tried to intervene, then appellant assaulted them also, on which Guddibai got scared and went towards her sister-in-law's village Aamkhera, then appellant took his son Bharosa in his hand, went towards complainant's well and threw him into the well.
(iii) On the same day, at about 17:30 hours, Dr. K.K. Shrivastava (PW-
15) conducted the postmortem of the body of the deceased Bharosa. He prepared postmortem report, Ex. P/19, and opined that the deceased died due to asphyxia as a result of drowning within 48 hours from the time of postmortem examination. During investigation, appellant was arrested vide arrest memo, Ex.P/17, and injured Guddibai and Halkaiya were sent to C.H.C., Aron for medical examination, where Dr. V.S. Raghuvanshi medically examined Guddibai and prepared MLC report Ex.P/11, while Dr. K.K. Shrivastava medically examined Halkaiya and prepared the MLC report, Ex.P/20. After completion of investigation, charge-sheet was filed against the appellant before the Court of Judicial Magistrate First Class, Aron, District Guna, who committed the case to the Court of Sessions Judge, Guna, who made over the same to the Court of Additional Judge to the Court of 4 th Additional Sessions Judge 4 (Fast Track), Guna (M.P.).
3. Learned Trial Court considering the material prima facie available on record, framed the charge under Sections 302, 324, and 323 of IPC against the appellant, who abjured the guilt and prayed for trial.
4. Learned Trial Court after appreciating oral as well as documentary evidence available on record, convicted the appellant for the offences punishable under Sections 302, 324 and 323 of IPC and sentenced him as mentioned in para 1 of this judgment.
5. Being aggrieved by the impugned judgment of conviction and order of sentence, appellant has preferred the instant appeal through jail for setting aside the impugned judgment and discharging him from the charge framed against him.
6. Learned counsel for the appellant submits that the learned Trial Court has committed legal error while appreciating the evidence available on record. Prosecution has failed to prove the fact that appellant threw his 7-8 months' old son deceased-Bharosa into the well. Appellant's wife Guddibai and father Halkaiya themselves stated that at the time of incident when the quarrel was going on between the appellant and his wife Guddibai, and Guddibai left the house, appellant took his son deceased in his hand and thereafter, threw him into the well, which in itself shows that the alleged act of throwing the deceased into the well was committed in a heat of passion upon sudden quarrel without any premeditation. Almost all the prosecution witnesses have admitted that the mental condition of the appellant was not normal, therefore, his conviction under Section 302 of IPC is not sustainable. Rest of the offences alleged against him have not been proved by the prosecution. Thus, impugned judgment of conviction and order of 5 sentence deserves to be set aside and appellant may be acquitted from the charges framed against him.
6.1 In the alternative, he submitted that since the alleged incident has been committed by the appellant in a heat of passion upon sudden quarrel without any premeditation, therefore, his case falls under exception 4 to Section 300 of IPC and accordingly, he is liable to be punished u/S 304 Part-II of IPC. The appellant has suffered till now about 13 years 5 months and 15 days jail sentence. Therefore, the sentence awarded to him be reduced to the period of sentence already undergone by him.
7. Per contra, learned counsel for the respondent/State while supporting the impugned judgment of conviction and order of sentence submits that complainant Sunita, appellant's wife Guddibai, father Halkaiya and mother Nannibai all have supported the prosecution case and there is nothing on record on the basis of which their statements can be disbelieved or doubted, therefore, the judgment so passed by the Trial Court is based on proper appreciation of evidence available on record. The appellant has not produced any oral or documentary evidence about his mental status. Prosecution witnesses specifically deposed that at the relevant period of time, he was although quarrelsome, but not insane. Learned Trial Court has not committed any error in holding the appellant guilty. Hence, the appeal filed by the appellant is devoid of merits and deserves to be dismissed.
8. Heard learned counsel for the parties at length and perused the record.
9. Prosecution in its support has examined in all 15 prosecution witnesses including complainant Sunitabai, who saw the appellant 6 throwing the deceased into the well. Other material witnesses are appellant's wife Guddibai (PW-3), father Halkaiya (PW-4) and mother Nannibai (PW-10), who narrated the whole incident. Dr. V.S. Raghuvanshi (PW-8), who medically examined Guddibai and Dr. K.K. Shrivastava (PW-15), who medically examined Halkaiya and conducted the postmortem of the body of the deceased-Bharosa. SHO, Arvind Singh Kushwaha (PW-14), who investigated the case.
10. Appellant's wife Guddibai (PW-3) deposed that on the date of incident when her husband appellant was assaulting her at her matrimonial house and her father-in-law Halkaiya saved her, she left the house and went towards her sister-in-law's village Aamkhedi. Appellant's father Halkaiya (PW-4) and mother Nannibai (PW-10) both have supported her above statements and deposed that when Halkaiya tried to save her, appellant had assaulted and bitten Halkaiya also. Their aforesaid statements find support from the statement of Dr. V.S. Raghuvanshi (PW-8) and MLC report, Ex.P/11, prepared by him and also from the statement of Dr. K.K. Shrivastava (PW-15) and MLC report, Ex.P/20, prepared by him.
11. Dr. V.S. Raghuvanshi (PW-8) deposed that on 19/8/2009 he medically examined the injured Guddibai and found following injuries on her body :-
(i) Contusion, measuring 3 X 2 cm on left knee.
(ii) Contusion, measuring 5 X 3 cm on upper part of left arm.
Dr. V.S. Raghuvanshi (PW-8) deposed that he prepared MLC report, Ex.P/11, and opined that the injury no.(i) was caused by hard and blunt object, while injury no.(ii) was caused by teeth bite within seven days from the time of medical examination.
712. Dr. K.K. Shrivastava (PW-15) deposed that on 25/8/2009, he medically examined the injured Halkaiya and found that all the injuries caused on his body were healed as per MLC report, Ex.P/20, hence, he did not give any opinion about the same.
13. Since Guddibai (PW-3), Halkaiya (PW-4) and Nannibai (PW-10) are appellant's wife, father and mother respectively, and nothing material has been extracted during their cross-examination on the basis of which their aforesaid statements, which are supported by the medical evidence, can be disbelieved or doubted, therefore, this fact is established that on the date of incident, i.e. 14/8/2009, at about 4:00 hours a quarrel took place between appellant and his wife Guddibai, wherein appellant had assaulted and bitten Guddibai and when his father Halkaiya tried to save her, appellant assaulted him also.
14. Appellant's wife Guddibai (PW-3) deposed that during the quarrel, when her father-in-law Halkaiya intervened and saved her, she went towards her sister-in-law's village Aamkhedi. Appellant's father Halkaiya (PW-4) and mother Nannibai (PW-10) deposed that when Guddibai went towards village Aamkhedi, appellant took his son Bharosa, aged about 7-8 months, in his hands and went towards complainant's house. Complainant Sunitabai (PW-1) deposed that on the date of incident, at about 4-5:00 hours, when she was grinding wheat, she saw the appellant throwing his son into the well situated in front of her house. Complainant Sunitabai (PW-1) appears to be an independent witness and there is nothing material on the record, on the basis of which her statements can be disbelieved or doubted.
15. Statements of aforesaid witnesses find support from Dehati Nalishi, Ex.P/1, and FIR, Ex.P/15, recorded just after the incident, 8 therefore, this fact is also established that appellant after quarreling and assaulting his wife Guddibai and his father Halkaiya took his own son deceased Bharosa in his hands and thereafter, threw him into the well. From the statement of Dr. K.K. Shrivastava (PW-15) and the postmortem report, Ex.P/19, prepared by him, it is apparent that the deceased died due to asphyxia as a result of drowning within 48 hours from the time of postmortem examination. Under these circumstances, learned Trial Court has not committed any error in holding the appellant guilty for causing the death of his son deceased-Bharosa by throwing him into the well.
16. During cross-examination of the prosecution witnesses, it has been suggested on behalf of the appellant that he was mentally abnormal and was not in a fit state of mind at the time of incident. But, appellant himself, has not produced any oral or documentary evidence in this regard. Prosecution witnesses have deposed that appellant's nature was quarrelsome, but there is nothing specific on the record from which it can be inferred that at the time of incident his mental condition was not fit and he was unable to understand about his acts. Hence, the aforesaid defence taken by him is not probable and acceptable at all.
17. So far as his conviction under Section 302 of IPC is concerned, admittedly the incident took place all of a sudden as a result of quarrel between the appellant and his wife, therefore, the contention of the appellant's counsel that the alleged act of throwing the deceased into the well was committed in a heat of passion upon sudden quarrel without any premeditation, appears to have force and, hence, appellant's case falls under exception 4 to Section 300 of IPC, which is punishable under Section 304 Part-II of IPC.
918. In this regard, the judgment passed by Hon'ble 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.
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 10 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 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:11
(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 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) 12
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 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 13 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 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 14 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 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 15 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.
19. In view of the above, the act of the appellant 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. Thus, the impugned judgment convicting the appellant for the offence punishable under Section 302 of IPC is liable to be modified and appellant's conviction u/S 302 of IPC is liable to be converted into Section 304 Part-II of IPC.
20. Hence, the conviction of the appellant for the offence punishable u/S 302 of IPC is set aside and he is convicted for the offence punishable under Section 304 Part-II of I.P.C. However, in view of the consistent evidence of appellant's wife Guddibai (PW-3) and father Halkaiya (PW-4), which are corroborated by the medical evidence, conviction of the appellant under Sections 323 and 324 of IPC and the sentence awarded to him under the said offences by the learned Trial Court vide impugned judgment is affirmed.
1621. So far as the issue with regard to the quantum of sentence awarded to him for the offence under Section 304 Part-II of IPC is concerned, as already pointed out, the alleged incident took place in the heat of passion without any premeditation upon a sudden quarrel, the incident took place in the year 2009 and appellant has suffered till now about 13 years 5 months and 15 days jail sentence. Under these circumstances, this Court is of the considered opinion, that the jail sentence already undergone by the appellant would serve the justice.
22. 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.
23. With aforesaid modifications, this criminal appeal filed against the judgment dated 29/1/2010, passed by the Court of Additional Judge to the Court of 4th Additional Sessions Judge (Fast Track), Guna (M.P.) in S.T. No.362/2009 is disposed of accordingly.
24. 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.
25. The Registry is directed to immediately supply a copy of this judgment to the Appellant, free of cost.
26. Let the record of the Trial Court be sent back immediately, along with copy of this judgment, for necessary information and compliance.
27. Appeal succeeds and is Allowed in part.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Arun*
ARUN KUMAR MISHRA
2023.04.25 17:44:49 +05'30'