Kalyan Kushwah vs State Of M.P. on 21 December, 2017

[Cites 16, Cited by 1]

Madhya Pradesh High Court

Kalyan Kushwah vs State Of M.P. on 21 December, 2017

(1) This appeal is directed against the judgment dated 9.3.2000 passed by the First Additional Sessions Judge, Shivpuri in Sessions Trial No.2/1999 whereby the appellant having found guilty of the charges of causing homicidal death of Swamilal has been convicted :: 2 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. ) and sentenced for life and penalty of Rs.5,000/- with a default sentence of 6 months R.I. (2) The prosecution story which has led to initiation of trial and conviction emanates from the complaint lodged by Nabbo Bai (PW-1) wife of the deceased that on 07/09/1998 the deceased had gone to his agricultural field situated at Naga-Bawadi. In the evening when she (PW-1) came at 5:00 PM after dropping her son Trilok at Shivpuri she found fire being lit to her hut located over "Medh"

(boundary which separates respective fields) by Kammu (who has since been tried by the Juvenile Court and reportedly is acquitted of the charges of murder and of causing fire). When the complainant informed this incident to her husband (since deceased) who was present in field when she ticked of Kammu he entered into altercation, threw stones and caused burn injuries to the complainant with a lit up stick from the burning hut. At that moment when deceased reached the spot Kammu told him of his indecently easing in front of his (Kammu's) sister-in-law and he will see him too. Thereafter the Appellant and Kammu took out "Kharerua" from the bullock cart and started beating Swamilal (the deceased) and caused injuries to his head, back and legs. At that moment complainant's brother-in-law Sewak and Prakash Puri (PW-12) came to pacify. Thereafter, Swamilal who was unconscious was taken to hospital in Tempo and was admitted therein. The complainant's :: 3 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. ) report was recorded as Dehati Nalishi (Ex.P/1) by Munish Rajoriya (PW-10) Station House Officer, Police Station Dehat Purani Shivpuri, District Shivpuri.

(3) Dr. Ratnesh Jain (PW-2) examined the injured Swamilal (since deceased), vide MLC (Ex-P/2) observed following injuries:-

"(1) Lacerated wound right side of occiptial region, size

2 cm x 1 cm x 1cm margin irregular, Bleeding; (2) Lacerated wound on left side of occipital region, size 3cm x ½ cm x ½ cm. Bleeding;

(3) Contiusion on right side of back of chest, size 4 cm x 2 cm;

(4) Contusion on left side of chest."

(4) Swamilal succumbed to injuries. Dr. Yogendra Singh Kushwaha (PW-14) conducted the post-mortem. In his report (Ex-P/23) besides noticing the injuries: (i) Lacerated wound 1 1/2 cm x 1cm x ½ cm on left occipital region; (ii) Abrasion 1 cm x 1 cm on posterior part of the right elbow; (iii) Fracture 3 ½ cm x 1/4 cm on left occipital region with blood under whole of occipital region. No tear of brain and margins and opined the cause of death due to head injury and complication; For nature of death Dr. Yogendra Singh Kushwaha (PW.14) opined that circumstantial evidence be considered.

(5) The prosecution got Nabbo Bai (PW-1) and her 2 years son medically examined by Dr. Ratnesh Jain (PW-2). That after recording :: 4 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. ) First Information Report, the investigation was set in motion. Place of scene of crime (Ex.P/13) was got prepared from Patwari Chintulal (PW.8). The Investigating Officer Munish Rajoriya (PW-10) prepared the Site Plan (Ex.P/15). Statement of witnesses were recorded. The Appellant was arrested on 13/09/1998. "Kharerua" was seized at the instance of the Appellant. However, it was not sent to Forensic Laboratory. Though deceased's shirt, banyan (vest) and underwear was sent to Serum Science Institute, Kolkata, whereon human blood were found. After completion of the investigation, the charge sheet was filed. The appellant was charged of causing murder of Swamilal and lit fire to the hut belonging to the deceased and Nabbo Bai (PW-1) and for causing injuries to Nabbo Bai (PW-1), by showing common intention with Kammu.

(6) Appellant abjured the guilt and pleaded innocence.

Prosecution, to bring home the charges, examined 14 witnesses of these Nabbo Bai (PW-1), Pahlu (PW-5), Sewak (PW-9) and Prakash Puri (PW-12) were examined as eye witnesses; whereas Dr. Ratnesh Jain (PW-2), Dr. A.L. Sharma (PW-3) and Dr. Yogendra Singh Kushwaha (PW-14) were examined to establish the injuries sustained by the deceased and Nabbo Bai (PW-1) and to prove the post-mortem. However, PW-5 (Pahlu), PW-9 (Sevak) and PW-13 (Prakash Puri) did not support the prosecution story. (7) The Trial Court on the basis of the evidence on record found :: 5 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. ) the death of Swamilal being homicidal. And further found the prosecution evidence credible and uphold the charge of murder of Swamilal caused by the Appellant being proved beyond doubt. However acquitted him of the charges under Section 323/34 & 436/34 IPC.

(8) The Appellant while not disputing that the death of Swamilal was not natural but was homicidal; however, submits that the prosecution having laid the foundation of causing fire to the hut situated over the "Medh" being the motive behind causing fatal injuries, but having failed to prove the said motive, because of the acquittal of the Appellant from the charges under Section 436/34, the trial Court grossly erred in holding the appellant guilty of causing murder with intention. Learned counsel for the Appellant led us though the testimony of prime witness Nabbo Bai (PW-1); and submits that even if her entire version is taken to be true, the offence which could alleged to have been committed was simple hurt; as the prosecution further failed to establish that the "Kharerua" which was allegedly used for commission of crime and was seized could not be established though forensic test to have been used for committing the alleged offence. (9) We find from the evidence of Nabbo Bai (PW-1), whose presence at the scene of crime cannot be doubted, the sequence of events, even if it is to be believed that the prosecution could not :: 6 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. ) establish the commission of offence under Section 436/34 IPC, the overt act of present appellant of causing injuries on Swamilal on being exhorted by Kammu cannot be ruled out. Though it is contended that the prosecution has failed to establish the motive;

even if this is accepted, the entire prosecution story cannot be discarded.

(10) In Paramjeet Singh Alias Pamma Vs. State of Uttarakhand [(2010) 10 SCC 439], it is observed that if motive is proved, thus, would supply a link in the chain of circumstances, but the absence thereof cannot be a ground to reject the prosecution case. It has been held:-

"29. In Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420, this Court rejected the submission that as no question had been put to the accused on motive, no motive for the commission of the crime could be attributed to the accused, nor the same could be reckoned as circumstance against him observing that it could not be pointed out as to what in fact was the real prejudice caused to the accused by omission to question the accused on the motive for the crime. No material was placed before the court to show as to what and in what manner the prejudice, if any, was caused to the accused. More so, the accused/appellant was aware of accusation and charge against him.

:: 7 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. )

54. So far as the issue of motive is concerned, the case is squarely covered by the judgment of this Court in Suresh Chandra Bahri (supra).

Therefore, it does not require any further elaborate discussion. More so, if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. (Vide: State of Gujarat v.

Anirudhsing[(1997) 6 SCC 514])"

(11) In view whereof, there is no discrepancy in the conclusion arrived at by the trial Court that the prosecution has succeeded in establishing that the subject offence was committed by the appellant. We are not inclined to interfere with the said conclusion. (12) The question, however, is whether in the given facts, at spur of moment in the midst of hot-talks and the findings by the trial Court that there was no previous enmity nor the assailants have pre-

planned the murder, whether conviction of the appellant under Section 302 IPC is sustainable or the appellant would be benefited by Exception 4 to Section 300 IPC which provides "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 :: 8 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. ) immaterial in such cases which party offers the provocation or commits the first assault." (13) In Surinder Kumar vs Union Territory, Chandigarh (1989) 2 SCC 217, it is held :

"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. In the present case, the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they found that the appellant was disinclined to handover possession of the kitchen, PW 2 quarreled and uttered filthy abuses in the presence of the appellant's sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the :: 9 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. ) utensils, etc., and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the other. In the course of this heated argument it is the appellant's case that PW 2 took out a knife from his pant pocket. This part of the appellant's case seems to be probable having regard to the antecedents of PW 2. It is on record that PW 2 was convicted at Narnaul on two occasions under Section 411, IPC and his name was registered as a bad character at the local police station. It was presumably because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4. When the appellant found that PW 2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant. It further seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the 5th rib about 2" below the nipple- It may incidentally be mentioned that the Trial Court came to the conclusion that the injury found on the neck of PW 2 was a self inflicted wound and had therefore acquitted the appellant of the charge under Section 307, IPC, against which no appeal was carried. We have, :: 10 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. ) however, proceeded to examine this matter on the premise that PW 2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter's sister, tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW 2 and inflicted a simple injury on his neck. It would be reasonable to infer that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under Section 304, Part I, IPC and direct him to suffer rigorous imprisonment for 7 years."

(14). In Arumugam vs State Represented by Inspector of Police Tamilnadu (2008) 15 SCC 590, it is held :

"9. The substantive plea relates to the applicability of Exception 4 of Section 300 IPC. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in :: 11 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. ) the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

"17. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation.

But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A `sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1."

There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both :: 12 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. ) parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter.

18. 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 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 :: 13 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. ) `undue advantage' as used in the provision means `unfair advantage'.

19. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan (AIR 1993 SC 2426) it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage."

(15). In Arjun vs State of Chhattisgarh (2017) 3 SCC 247, it is held :

"22- The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no premeditation. Injuries as reflected in the post- mortem report also suggest that appellants have not taken "undue advantage" or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC.

23. When and if there is intent and knowledge, then the :: 14 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. ) same would be a case of Section 304 Part I IPC 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 IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of the period already undergone."

(16) In the case at hand there being no previous enmity, no premeditation. The appellant gave a single blow on the vital part of the body of the victim, but avoided the repetition as would establish an intention to kill In these circumstances, we are of the considered opinion that the case of the appellant/accused will fall within the purview of Section 304 Part 1 of IPC. Consequently, conviction is modified from under Section 302 of IPC to under Section 304 Part 1 IPC. So far as the sentence is concerned, as per the record the :: 15 ::

Cr.A.No.267/2000 (Kalyan Kushwah Vs. State of M.P. ) appellant-Kalyan Kushwah has served 9 years and 3 months (from 13.9.1998 to 13.12.2007) in the custody, which in our considered opinion is sufficient looking to the facts and circumstances of the case.

(17) In the result the appeal is partly allowed. If Appellant is in jail then he be released forthwith, if not required in any other case. A copy of judgment be also sent to the trial Court along with the record for information and to prepare the supersession warrant of appellant- Kalyan Kushwah.

Appeal partly allowed.

                    (Sanjay Yadav)                              (S.K.Awasthi)
                       Judge                                      Judge
Pawar/-

ASHISH PAWAR
2017.12.21 19:03:06 +05'30'

Unlock Advanced Research with PRISMAI

Madhya Pradesh High Court