Madhya Pradesh High Court
Bhagirath vs The State Of Madhya Pradesh on 7 February, 2019
Author: Vivek Rusia
Bench: Vivek Rusia
HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
DIVISION BENCH:HON'BLE SHRI JUSTICE VIVEK RUSIA &
HON'BLE SHRI JUSTICE SHAILENDRA SHUKLAVIVEK
RUSIA
CRIMINAL APPEAL No.817/2011
Bhagirath
Vs.
State of Madhya Pradesh
Mr. Toufiq Warsi, learned counsel for the appellant.
Mr. Saurabh Shrivastava, learned Govt. Advocate for the
respondent/State.
_______________________________________________
JUDGEMENT
(Delivered on 07/02/2019) Per Vivek Rusia, J:
The appellant has filed the present appeal under Section 373 of the Cr.P.C being aggrieved by the judgement dated 25.09.2009, passed in Sessions Trial No.35/2009, passed by the 5th Additional Sessions Judge, Mandsaur, whereby he has been convicted under Section 302 and sentenced to life imprisonment with a fine of Rs.300/- and in default in depositing the fine additional rigorous imprisonment for three months.
As per prosecution story, on 22.03.2009, the appellant in person gave information in the Police Station Kotwali, Mandsaur that he was having apprehension that his wife Shanti Bai was having some illicit relations with other person and yesterday there was a hot talk between them due to her illicit relationship , he gave a blow from wooden object on her head due to which she became unconscious. He dragged and put her inside the box, strangulated by cloth and closed the box. In the evening his son Vinod enquires about her mother. Thereafter, he went to the Police Station and give information of the said incident. On the basis of the said information the police registered a case under Section 302 of IPC against him and recovered the dead body of Shanti Bai and sent it to the postmortem .After completing usual investigation challan was filed under Section 302 of IPC. The accused in his statement under Section 313 of IPC pleaded not guilty but admitted that he killed his wife and kept her dead body in a box.
In order to prove the case against the appellant beyond reasonable doubt, the prosecution examined Mohanlal as PW1, Vinod as PW2, Shakir as PW3, Preeti Manawat as PW4, Kishor Singh as PW5, Omkumar Rohila as PW6, Head Constable Mohanlal as PW7, Abdul Sattar as PW8, Babukha as PW9, & Dr. R.P. Parmar as PW10.
In defence, the appellant did not examine any witness. After appreciating the evidence came on record and on confession made by the appellant, learned Additional District Judge has convicted and sentenced him under Section 302 with life imprisonment, hence, the present appeal before this Court.
We have heard Shri Toufiq Warsi, learned counsel for the appellant & Shri Saurabh Shrivastava, learned Govt. Advocate for the respondent/State.
Shri Toufiq Warsi, learned counsel for the appellant argued that the learned trial Court has wrongly convicted the appellant under Section 302 of IPC. It was at the most the case of Section 304 Part 2 of the IPC as the appellant under the sudden provocation and doubt over the character of his wife gave a single blow on her head and due to which she died. There is no evidence to the effect that she died due to strangulation in the neck. The appellant has already undergone 10 years jail sentence, therefore, it is a fit case for converting Section 302 of IPC to Section 304, Part 2 of IPC and reduction of sentence upto 10 years with fine.
Shri Saurabh Shrivastava, learned Govt. Advocate for the respondent/State submitted that the appellant himself has admitted his sin that he killed his wife and kept the dead body inside a box. There is no evidence to the effect that the incident occurred due to sudden provocation. He killed his wife because he was having doubt over her character , therefore, learned Court has rightly convicted him under Section 302 of IPC.
That according to PW1 who is brother of the appellant, the appellant used to create doubt over the character of the deceased and he used to assault her. PW2 i.e. the son of the appellant viz Vinod has also stated that his father and mother used to quarrel regularly and he used to intervene between their dispute. Except these two witnesses, prosecution examined two witnesses to prove seizure of articles. As per the doctor's opinion, Shanti Bai died due to head injury and there is no challenge to the finding recorded by the learned trial Court in respect of death of the accused, therefore, it is not necessary for us to reconsider the same again. Hence the findings in regards to the cause of death are affirms .
It is clear from the evidence of PW1 and PW2 that the appellant used to doubt over the character of his wife and that was the main cause of dispute between them. In his statement recorded under Section 313 of the Cr.P.C, he has specifically deposed that on the date of incident when he came to the house he saw his wife with another man and after seeing him, that man ran away. Thereafter, he killed his wife. Relevant portion of the Statement is reproduced below:
"iz-dz- 80 vkidks vkSj D;k dguk gS \ m- ml fnu eSus viuh iRuh dks ,d vkneh ds lkFk ?kj ij ns[kk FkkA igys Hkh mls xyr dke ugh djus dks le>k;k FkkA ml fnu xqLls es ml vkneh dks ekjk Fkk og Hkkx x;k fQj iRuh dks ekjk Fkk rks ej xbZ"
Although, this fact is missing in the FIR, but as the appellant has given a single blow on the head of the deceased and due to which she died, therefore, it can safely be held that it was due to sudden provocation as he saw his wife alongwith another man in the house. The assault on the deceased in absence of intention to cause death could was due to sudden fight without premeditation, in the heat of passion and upon a sudden quarrel. We find support to our aforesaid view from the following judgements passed by the Apex Court as well as by this Court:
In Chand Khan Vs. State of M.P. reported in 2006(3) M.P.L.J. 549, the Division Bench of this Court has also converted the conviction of the appellant in attaining facts and circumstances of the case. Para -10 & 11 of the judgment are relevant which reads thus:-
"10. If the present case is considered in the light of the aforesaid decisions of the Supreme Court, it would show that the appellants caused single injury on the head of the deceased by farsa, which is a sharp edged weapon, but unfortunately Aziz Khan (PW-11) and Ishaq Khan (PW-13) have stated that he gave lathi blow on the head of the deceased. Even after considering this contradictory evidence it has to be taken into consideration that it is a case of single farsa blow inflicted by only appellant Chandkhan and appellant Naseem inflicted only lathi blow on the nonvital part of the body and in the absence of this evidence that the injury no.(i) was sufficient to cause death in the ordinary course of nature and also looking to the various other circumstances like that the accused as well as the deceased are close relatives and the deceased was a person of criminal background and the incident started because of the abuses made first by the deceased himself, we find that the case will not fall within the purview of section 300, Indian Penal Code but it will fall under section 304 Part II, culpable homicide not amounting to murder.
11. consequently, appeal is partly allowed. Conviction of appellants under section 302/34 Indian Penal Code, is set aside and instead they are convicted under section 304 part II, Indian Penal Code, .......... "
The Hon'ble Supreme Court has held in Gurpal Singh v. State of Punjab, AIR 2017 SC 471. Para 10 of the judgement reads thus:
"10. However, in the singular facts of the case and noticing in particular, the progression of events culminating in the tragic incident, we are inclined to reduce the sentence awarded to him. Incidentally, the occurrence is of the year 2004 and meanwhile twelve years have elapsed. Further, having regard to the root cause of the incident and the events that sequentially unfolded thereafter, we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger so much so that he was deprived of his power of self-control and being drawn in a web of action reflexes, fired at the deceased and the injured, who were within his sight. The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof. Be that as it may, on an overall consideration of the fact situation and also the time lag in between, we are of the view that the conviction of the appellant ought to be moderated to one under Sections 304 Part 1 IPC and 307 IPC. Further, considering the facts of the case in particular, according to us, it would meet the ends of justice, if the sentence for the offences is reduced to the period already undergone. We order accordingly."
The Hon'ble Supreme Court held in Arjun and Anr. Vs. State of Chhattisgarh, AIR 2017 SC 1150 that:
"19. The point falling for consideration is whether the conviction of the appellants under Section 302 IPC is sustainable. As discussed earlier, the evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred due to a sudden fight which, in our view, falls under exception (4) of Section 300 IPC.
20. To invoke this exception (4), the requirements thatare to be fulfilled have been laid down by this Court in Surinder Kumar v. Union Territory of Chandigarh (1989) 2 SCC 217 : (AIR 1989 SC 1094, Para 6), it has been explained as under:
"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.............."
21. Further in the case of Arumugam v.
State,Represented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590 : (AIR 2009 SC 331, Para 15), in support of the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:
"9. .......
"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 Penal Code, 1860. 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 had 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'."
The Hon'ble Supreme Court has laid down in Prab- hakar Vithal Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if assault on deceased could be said to be on account of sudden fight without pre-meditation, in heat of passion and upon a sudden quarrel, Conviction of the ap- pellant cannot be sustained under S. 302 and altered to one under Section 304 part-I of IPC. Relevant para 7 of the judgment reads thus:
"7. In the facts and circumstances noted above, there appears merit in the submission advanced by learned counsel for the appellant that in view of Exception 1 or Exception 4 in Section 300 of the IPC the case made out against the appellant is that of culpable homicide not amounting to murder. It would be natural for the family members of juvenile offender Balu on hearing his cries, to rush for his help and when injury on the appellant has also been proved there is sufficient material to infer the reasonable possibility of a grave and sudden provocation. The assault on the deceased, in absence of intention to cause death could be on account of sudden fight without pre-meditation, in the heat of passion and upon a sudden quarrel. We therefore feel persuaded to and do set aside the conviction of the appellant under Section 302 IPC and substitute the same with conviction under Section 304 Part I of the IPC. The certificate of imprisonment available on record discloses that the appellant has by now undergone more than 12 years of actual imprisonment. The aforesaid period, in our estimate is sufficient to meet the ends of justice. Hence the sentence of imprisonment for life is reduced to imprisonment for the period already undergone by the appellant. In view of such modification in the sentence, the appellant is directed to be released from custody forthwith if not required to be kept in custody in connection with any other criminal case. The appeal stands allowed to the aforesaid extent."
In Sikandar Ali Vs. State of Maharashtra, AIR 2017 SC 2614, the Court altered the conviction u/s 302 IPC to one u/s 304 part-2 IPC in the following circum- stances:
"7. We have no doubt about the complicity of all the accused in the homicide of Sarfraj. A-1 attacked the deceased with the knife and caused injury on his neck which resulted in his death. The other accused assisted him in committing the crime by holding the hands of the deceased. However, the only question that falls for our consideration is whether the accused are liable to be punished for an offence under Section 302 IPC. After considering the submissions made by the counsel for the Appellants and scrutinising the material on record, we are of the opinion that the accused are not liable to be convicted under Section 302 IPC. We are convinced that there was neither prior concert nor common intention to commit a murder. During the course of their business activity the accused reached the dhaba where the deceased was present. An altercation took place during the discussion they were having behind the dhaba. That led to a sudden fight during which A-1 attacked the deceased with a knife. Exception 4 to Section 300 is applicable to the facts of this case. As we are convinced that the accused are responsible for the death of Sarfraj, we are of the opinion that they are liable for conviction under Section 304 part II of the IPC. We are informed that A-1 has undergone a sentence of seven years and that A-2 to A-4 have undergone four years of imprisonment. We modify the judgment of the High Court converting the conviction of the accused from Section 302 to Section 304 part II of the IPC sentencing them to the period already undergone. They shall be released forthwith."
The Hon'ble Apex Court laid down in Madhavan and Ors. Vs. State of Tamil Nadu, AIR 2017 SC 3847 that:
"8. Notably, the High Court has not considered the issue of quantum of sentence at all, but mechanically proceeded to affirm the sentence awarded by the Trial Court. From the factual position, which has emerged from the record, it is noticed that there was a preexisting property dispute between the two families. The incident in question happened all of a sudden without any premeditation after PW1 questioned the appellants about their behaviour. It was a free fight between the two family members. Both sides suffered injuries during the altercation. The fatal injury caused to Periyasamy was by the use of thadi (wooden log) which was easily available on the spot. The appellants, on their own, immediately reported the matter to the local police alleging that the complainant party was the aggressor. No antecedent or involvement in any other criminal case has been reported against the appellants. Taking oral view of the matter, therefore, we find force in the argument of the appellants that the quantum of sentence is excessive.
9. We may usefully refer to the decision of this Court (one of us, Justice Dipak Misra speaking for the Court) in the case of Gopal Singh v. State of Uttarakhand (2013) 7 SCC 545 : (AIR 2013 SC 3048) enunciated the necessity to adhere to the principle of proportionality in sentencing policy. In paragraphs 18 and 19 of the said decision, the Court observed thus:
"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated here-in-before and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment.
19. A Court, while imposing sentence, has to keep in view the various complex matters in mind. To structure a methodology relating to sentencing is difficult to conceive of. The legislature in its wisdom has conferred discretion on the Judge who is guided by certain rational parameters, regard been had to the factual scenario of the case. In certain spheres the legislature has not conferred that discretion and in such circumstances, the discretion is conditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. The special reasons have to rest on real special circumstances. Hence, the duty of Court in such situations becomes a complex one. The same has to be performed with due reverence for Rule of the collective conscience on one hand and the doctrine of proportionality, principle of reformation and other concomitant factors on the other. The task may be onerous but the same has to be done with total empirical rationality sans any kind of personal philosophy or individual experience or any a- priori notion."
Considering the above and keeping in mind the facts of the present case, the nature of the crime, subsequent conduct of the appellants, the nature of weapon used and all other attending circumstances and the relevant facts including that no subsequent untoward incident has been reported against the appellants and the mitigating circumstances, we are inclined to modify the sentence period in the following terms:- ........".
In a recent judgment passed the apex court in case of Lavghanbhai Vs. State of Gujrat reported in [2019(3) MPLJ (Cri)(SC) 49] has laid down the parameters which are to be taken into consideration while deciding the ques- tion as to a whether the case falls under sec 302 or sec.304 Part II of IPC .
This Court in the case of Dhirendra Kumar versus State of Uttarakhand [ 2015 )3) SCALE 30] has laid down the parameters which are to be taken into considera- tion while deciding the question as to whether a case falls under Section 302 IPC or 304 IPC, which are the follow- ing:
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from the spot;
(d) Whether the assault was aimed on vital part of body;
(e) The amount of the force used.
(f) Whether the deceased participated in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation.
(i) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.
Keeping in view the aforesaid factors it becomes evident that the case of the appellant would fall under Section 304 IPC as the incident took place due to a sudden altercation which was a result of delay in preparing lunch by the de- ceased. The appellant picked up a wooden object and hit the deceased. The medical evidence shows that not much force was used in inflicting blow to the deceased. The pros- ecution has not set up any case suggesting that relationship between the the husband and wife was not cordial, otherwise. Manifestly, the incident took place due to sud- den provocation and in a heat of passion the appellant had struck a blow on his wife, without taking any undue advan- tage. We are, therefore, of the opinion that it was an of- fence which would be covered by Section 304 Part-II IPC and not 302 IPC.
In view of the above discussion and verdicts of the apex court, the appeal is partly allowed. So far as the culpability of the appellant is concerned, same is maintained but his conviction is altered to section 304 Part 2 of IPC, instead of Section 302 of IPC and accordingly sentenced to the period of 10 years with a fine of Rs.2,000/-.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
Judge Judge
jasleen
Digitally signed by
Jasleen Singh Saluja
Date: 2019.02.12
16:28:06 +05'30'