Madhya Pradesh High Court
Jalu @ Jalam vs The State Of Madhya Pradesh on 25 April, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 25th OF APRIL, 2022
CRIMINAL APPEAL No. 1058 of 2012
Between:-
JALU @ JALAM S/O ASYAB BHILALA , AGED ABOUT 29 YEARS,
OCCUPATION: AGRICULTURE SINGUN (SINGUR), P.S. GOGANVA,
DISTT. KHARGONE (MADHYA PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU. P.S. GOGANVA
DISTT. KHARGONE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI K.K.TIWARI, GOVT.ADVOCATE )
This appeal coming on for orders this day, JUSTICE VIVEK
RUSIA passed the following:
JUDGMENT
Today this appeal is listed for hearing on I.A.No.3251/2022 which is an application seeking suspension of sentence of sole appellant Jalu @ Jalam but with consent of the parties, the appeal is -2- heard finally.
2. The appellant has filed the present Criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 being aggrieved by the judgment of conviction and sentence dated 30.8.2012 passed by the III Additional Sessions Judge, Khargone District Khargone in Sessions Trial No.44/2012, whereby, he has been convicted for the offence punishable under Sections 302 of the Indian Penal Code and sentenced to undergo Life Imprisonment along with fine of Rs.5,000/- with default clause to further undergo One-year additional rigorous imprisonment.
3. As per the prosecution story, on 20.01.2012 near about 8.00 P.M, Balu (deceased) was taking dinner in his house. Appellant Jalu @ Jalam came to take his motorcycle. Balu objected on the ground that the appellant Jalu @ Jalam was in drunken condition. The appellant became annoyed and started assaulting the deceased with fists and kicks due to which Balu became unconscious. Jalu @ Jalam also damaged his motorcycle. Balu was taken to the hospital on the next day morning,i.e, 21.01.2012 in an unconscious condition. The Doctor examined him and found him dead. Accordingly, Marg No.11/2012 was registered followed by a registration of FIR at Crime No.26/2011 (Exhibit P-14) and the appellant was arrested. The prosecution has examined Neelu Bai (PW-4) the wife of the deceased Balu, who supported the case of the prosecution. The doctor has found that the death was homicidal in the Autopsy report. After evaluating the evidence that came on record, the learned trial Court has held that the prosecution has proved the charge beyond -3- reasonable doubt and accordingly, convicted the appellant under Section 302 of the IPC. Hence, this appeal before this Court.
4. At the very outset, learned counsel for the appellant submits that she is not assailing the findings recorded by the trial Court on merit. The appellant has completed more than 10 years of jail incarceration. The appellant and deceased are real brothers. The dispute arose suddenly because the appellant demanded the motorcycle and the deceased refused to give it. The appellant was in an intoxicated condition, therefore, he committed the crime out of anger. He assaulted the deceased with fists and kicks, therefore, there was no intention to kill as there was no lethal weapon. The deceased was not taken to the hospital immediately on the same day of the incident and was given treatment in the house, on the next day on 21.1.2012 when he became serious he was taken to the hospital. Under such consideration, the offence will not travel more than 304 Part (I) for which the appellant has already undergone a sufficient period of jail incarceration.
5. Counsel for the respondent/State opposes the prayer by submitting that the present appellant has assaulted the deceased continuously despite being prevented by the wife of the deceased as well as his sister, therefore, he was intending to kill the deceased. The trial Court has already considered and found that this offence will not fall under exception IV of Section 300 IPC.
6. We have heard learned counsel for the parties and perused the record.
7. However, the appellant has already undergone more than 10 -4- years of jail sentence and it is not a case that the appellant came to the house of his brother (Balu) intending to kill him. As per FIR and the deposition of eyewitnesses he was in an intoxicated condition and without permission of the deceased was taking his motor cycle when deceased objected to the same he assaulted him by fist and leg. Although he was carrying a stick which he used for damaging the motor cycle, therefore, he had no intention to kill. The deceased died due to internal bleeding, rupture of spleens and fracture of ribs. It has also come in the evidence of Murli Bai (PW-6) that the appellant was heavily drunk on the said date, therefore, he was not in a position to think of the consequence of his act.
8. Keeping in view the fact and cumulative effect, we are of the opinion that the offence is not falling more than Section 304 Part (I).
9. The above view is supported by the verdict of the Apex Court reported in the case of State of M.P. Vs. Abdul Latif 2018(3) M.P.L.J (Cri) (S.C.) 311 and in the case of Rambir Vs. State (NCT of Delhi) reported in (2019) 2 SCC (Cri) 746 in the similar facts and circumstances murder of wife by her husband due to a quarrel took place between them, the Apex Court has held that the offence would not travel more than Section 304 Part I and Part II of IPC because it falls under the Exception 4 to Section 300 of IPC.
10. In view the law laid down by the Apex Court in the cases of Gurpal Singh v/s The State of Punjab reported in AIR 2017 SC 471, Arjun & Another v/s The State of Chhattisgarh reported in AIR 2017 SC 1150, Prabhakar Vithal Gholve v/s The State of Maharashtra reported in AIR 2016 SC 2292, Sikandar Ali v/s The -5- State of Maharashtra reported in AIR 2017 SC 2614, Madhavan & Others v/s The State of Tamil Nadu reported in AIR 2017 SC 3847 and Ankush Shivaji Gaikwad v/s The State of Maharashtra reported in (2013) 6 SCC 770, the offence will not travel more than Section 300 exception IV of the IPC for which the appellant is liable to be convicted for the offence punishable under Section 304 Part - II.
13. Looking to the fact that the appellant is having no criminal past, the sentence of Life Imprisonment is liable to be reduced to the period already undergone.
14. In view of the above discussion and verdicts of the Apex Court, the criminal appeal is partly allowed. So far as the culpability of the appellant is concerned, the same is maintained but conviction is altered to Section 304 Part 1 of IPC, instead of Section 302 of IPC and accordingly sentenced to the period already undergone with a fine of Rs.3,000/-. The appellant be released from jail after depositing the difference in fine amount if he is not required to be kept in jail in any other case.
15. With the aforesaid, the Criminal Appeal stands partly allowed.
16. Let the record of the trial Court be sent back along with the copy of this judgment.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
das
Digitally signed by
REENA PARTHO SARKAR
Date: 2022.05.02
17:11:17 +05'30'