Madhya Pradesh High Court
Tarachand @ Guddu vs The State Of Madhya Pradesh on 28 September, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
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CRA No. 728/2015
HIGH COURT OF MADHYA PRADESH : BENCH INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 28th OF SEPTEMBER, 2022
CRIMINAL APPEAL No. 728 of 2015
BETWEEN:-
TARACHAND @ GUDDU S/O NANNULAL SUNHERE, AGED ABOUT
36 YEARS, OCCUPATION: LABOUR 209 NAYA 174 AADRSHA
BIJASAN NAGAR INDORE I (MADHYA PRADESH)
.....APPELLANT
(MS. REKHA SHRIVASTAVA, LEARNED COUNSEL FOR THE
APPELLANT.)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THROUGH PS PARDASIPURA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI KAMAL KUMAR TIWARI, LEARNED GOVT. ADVOCATE FOR
RESPONDENT/STATE.)
This appeal coming on for hearing this day, JUSTICE VIVEK
RUSIA passed the following judgment:
Today this appeal is listed on consideration of application (I.A.
No.13136/2022) for suspension of the jail sentence of appellant -
Tarachand @ Guddu S/o. Nannulal Sunhare.
Instead of hearing on the aforesaid application, we deem it
proper to hear this appeal finally.
Heard the learned counsel for the parties finally.
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CRA No. 728/2015
JUDGMENT
This is an appeal filed by the appellant against the judgment dated 25.2.2015 passed by Sessions Judge, Indore in S.T. No.992/2012 whereby he has been convicted u/s. 302 of the IPC and sentenced to undergo life imprisonment and to pay a fine of 5,000/- with default stipulation.
(2) As per the prosecution story, the appellant took his wife/deceased to the M.Y. Hospital (MYH) on 19.6.2012 in a burn condition. The Telephone Operator of the MYH gave information about the same to the Police Station Pardeshipura, District Indore, which was recorded at "Rojnamcha Sanha" No.1604 vide Exh. P/6. Thereafter, Assistant Sub Inspector - Krishna Kumar Tiwari (P.W.13) reached MYH and found that Durga Bai was in a position to give a statement. Accordingly, he called Naib Tehsildar to record her statement (dying declaration ). In her statement, she disclosed that she poured the kerosene oil on her body and thereafter the present appellant ablaze her with matchsticks. The FIR was registered for the offence u/s. 307 of the IPC vide Exh. P/11 against the appellant . During treatment, the deceased died on 24.6.2012 and accordingly "Merg" No. 31/2012 was registered and offence u/s. 302 of the IPC was added. On completion of the investigation and arrest of the appellant, a charge-sheet was filed before the competent court from where it was committed to the Court of Sessions. Charge u/s. 302 of the IPC was framed against the appellant who denied the same and pleaded for trial. To prove the charge, the prosecution have examined 18 witnesses and got exhibited 18 documents. In defence, the appellant came with the plea that he has falsely been implicated but
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CRA No. 728/2015did not examine any witness. After evaluating the evidence that came on record, learned Sessions Judge has convicted and sentenced the appellant, as stated first.
(3) Learned counsel for the appellant at the very outset submits that she is not assailing findings recorded by the learned Sessions Judge on merit. She submits that as per the dying declaration of the deceased, during the verbal altercation ,out of anger the appellant ablaze his wife and thereafter he himself took her to the hospital for treatment hence he had no intention to kill her, therefore, the offence would not travel more than an offence u/s. 304 Part II of the IPC and for which he has already undergone more than 10 years of jail sentence. The appellant is the first offender and has no criminal record. She, therefore, prays that this appeal be partly allowed and the sentence be reduced to the period already undergone.
(4) On the other hand, learned Govt. Advocate appearing for the respondent/State opposed the prayer by submitting that the appellant himself blazed his wife knowing its consequences very well, therefore, he has rightly been convicted and sentenced by the learned Sessions Judge. No interference is called for and the appeal is liable to be dismissed.
After having heard the learned counsel for the parties, we have perused the record of the court below.
(5) Since the appellant is not challenging the findings recorded by the learned trial court on merits, but challenging the impugned judgment on limited grounds, therefore the findings recorded on the issues of date of incident, cause of death, dying declaration, are not liable to be re-appreciated in this criminal appeal . The dying declaration of the deceased is reproduced below :
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"ej.kklUu dFku fnukad 19-06-2012 le; 9%30 LFkku bUnkSj MkWDVj dh fjiksVZ% 1- D;k uke gS\ nqxkZ ckbZ 2- ifr dk D;k uke gS\ rkjkpan 3- mez D;k gS\ 23 lky 4- dgka jgrh gks\ vkn'kZ fctklu uxj bankSj 5- D;k djrh gks\ flykbZ 6- D;k gqvk gS\ eSus ifr dks Mjkus /kedkus ds fy;s [kqn ij ?kklysV Mky fy;k Fkk rks mUgksaus dgk fd rw D;k tyk,xh esa gh tyk nsrk gwa vkSj ekfpl ls vkx yxk nhA 7- rqeus ?kklysV D;ksa Mkyk\ ifr eq>ls tq, ds iSls ekaxrk gSA ugha fn;s rks 2--3 >kiM ekjsA 8- ?kVuk dc vkSj dgka gqbZ\ vkt 'kke 6 cts ?kj ij 9- ?kj ij dkSu dkSu Fkk\ eSa vkSj ifr 10- vkSj dqN dguk gS\ esjk ifr eq>ls vdlj >xMk o ekjihV djrk gSA i<dj lquk;k ckn vaxwBk yxok;k le{k"
It is evident from the above that there was no previous enmity between the husband and wife. On the date of incident, the appellant came back to home after spending money in gambling, and he gave 2- 3 slaps to his wife. The deceased herself poured the kerosene oil on her body in order to give a threat to the appellant and out of anger he threw matchsticks at her and due to this she sustained burn injuries. After realising his conduct, he himself took her to the MYH. He never fled away from the spot. The deceased remained under treatment but succumbed to burn injuries. The appellant is not a proclaimed offender , he has no case history. the domestic dispute with the wife has turned a tragic end. Therefore, we are of the considered opinion that it is a fit case for conversion of conviction of appellant from 302 of the IPC to Section 304 Part II of the IPC.
(6) We are getting the support of our above view from the following verdict of the Apex court.
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CRA No. 728/2015The 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."
(7) The Hon'ble Supreme Court held in Arjun and Anr. Vs. State of Chhattisgarh, AIR 2017 SC 1150 that:
20. To invoke this exception (4), the requirements that are 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.
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CRA No. 728/2015Where, 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'."
(8) The Hon'ble Supreme Court has laid down in Prabhakar Vithal Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if the assault on deceased could be said to be on account of the sudden fight without premeditation, in heat of passion and upon a sudden quarrel, Conviction of the appellant cannot be sustained under S. 302 and altered to one under Section 304 Part-I of IPC. In Sikandar Ali
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CRA No. 728/2015Vs. 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 cir- cumstances:
"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."
(9) 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
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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. (10) 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, .........."
(11) In the case of Ankush Shivaji Gaikwad v. State of Maharashtra, reported in (2013) 6 SCC 770 the Supreme Court of India has held as under:-
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10. On behalf of the appellant it was contended that the appellant's case fell within Exception 4 to Section 300 IPC which reads as under:
"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's having taken undue advantage or acted in a cruel or unusual manner."
11. It was argued that the incident in question took place on a sudden fight without any premeditation and the act of the appellant hitting the deceased was committed in the heat of passion upon a sudden quarrel without the appellant having taken undue advantage or acting in a cruel or unusual manner. There is, in our opinion, considerable merit in that contention. We say so for three distinct reasons:
11.1. Firstly, because even according to the prosecution version, there was no premeditation in the commission of the crime.
There is not even a suggestion that the appellant had any enmity or motive to commit any offence against the deceased, leave alone a serious offence like murder. The prosecution case, as seen earlier, is that the deceased and his wife were guarding their jaggery crop in their field at around 10 p.m. when their dog started barking at the appellant and his two companions who were walking along a mud path by the side of the field nearby. It was the barking of the dog that provoked the appellant to beat the dog with the rod that he was carrying apparently to protect himself against being harmed by any stray dog or animal. The deceased took objection to the beating of the dog without in the least anticipating that the same would escalate into a serious incident in the heat of the moment. The exchange of hot words in the quarrel over the barking of the dog led to a sudden fight which in turn culminated in the deceased being hit with the rod unfortunately on a vital part like the head.
11.2. Secondly, because the weapon used was not lethal nor was the deceased given a second blow once he had collapsed to the ground. The prosecution case is that no sooner the deceased fell to the ground on account of the blow on the head, the appellant and his companions took to their heels--a circumstance that shows that the appellant had not acted in an unusual or cruel manner in the prevailing situation so as to deprive him of the benefit of Exception 4.
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CRA No. 728/201511.3. Thirdly, because during the exchange of hot words between the deceased and the appellant all that was said by the appellant was that if the deceased did not keep quiet even he would be beaten like a dog. The use of these words also clearly shows that the intention of the appellant and his companions was at best to belabour him and not to kill him as such. The cumulative effect of all these circumstances, in our opinion, should entitle the appellant to the benefit of Exception 4 to Section 300 IPC.
(12) In view of the above evaluation of the facts and circumstances of the case and verdicts of the apex court, criminal appeal is partly allowed. So far as the complicity of the appellant is concerned, the same is maintained but the conviction is altered from section 302 to section 304 Part II of IPC, and accordingly, sentence is reduced from LIFE IMPRISONMENT to the period already undergone. The fine amount imposed by the trial court is maintained. The appellant be released from jail forthwith after depositing the fine amount, if not deposited, and if he is not required in any other cause.
This criminal appeal is partly allowed.
Record of the trial court be sent back along with a copy of this order.
[ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.09.29 10:04:14 +05'30'