Madhya Pradesh High Court
Heera Lal vs The State Of M.P. on 20 November, 2017
Author: Anurag Shrivastava
Bench: Anurag Shrivastava
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HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
CRIMINAL APPEAL NO.1573/1994..
Division Bench : Hon'ble Shri Justice S. K. Gangele &
Hon'ble Shri Justice Anurag Shrivastava
Heeralal
Versus
State of Madhya Pradesh
For appellant : Shri D. D. Bhargava, Adv (Amicus Curie)
For respondent/State : Shri Pradeep Singh, G. A.
JUDGMENT
(Passed on 21.11.2017) As per S.K. Gangele, J:
1. Appellant has filed this appeal against the judgment dated 3.9.1994 passed by the Sessions Judge, Satna in S. T. No.66/1993.
The trial Court convicted the appellant for commission of offence punishable under Section 302 of IPC and awarded sentence of life with fine of Rs.3,000/-.
2. Nine persons have been prosecuted for commission of offence punishable under Section 147, 452, 302/149 and 323/149 of IPC. The trial Court acquitted all other accused persons except the appellant.
3. Allegation against the appellant is that he had inflicted a blow of Lathi on the head of the deceased, due to which the deceased was died.
4. Shri D. D. Bhargava, learned counsel for the appellant has submitted that even if the prosecution evidence is accepted as it is 2 even then the offence alleged to be committed by the appellant would fall under Section 304-I of IPC and for that the appellant has already undergone actual jail sentence of ten years.
5. Prosecution story in brief is that, on the date of incident there was a quarrel between Kamla and co-accsued Dadabhai. The deceased came out from his house and tried to pacify the quarrel, in that event appellant- Heeralal had inflicted blow of Lathi on the head of the deceased. He ran away in his house. Other accused persons chased the deceased; they abused him and inflicted injuries on him. Keshkali wife of the deceased and her daughter had also received injuries. The report of the incident was lodged at the police station. Police conducted investigation and filed charge sheet against Nine accused persons. Appellant and other accused persons abjured their guilt. The trial Court held appellant guilty and acquitted all other accused persons.
6. Keshkali (P.W.5) is the wife of the deceased; she is injured eye-witness. She deposed that she was cooking food, there was a quarrel in front of the house. Thereafter her husband-deceased came out from the house, all accused persons chased him and they had inflicted injuries on him by Lathis. She tried to save him then Umashankar @ Dada Bhai inflicted a blow of lathi on her daughter Panwati also. Thereafter, she lodged the report of the incident at the police Station (Ex.P.8).
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7. Rajaram P. W. 10 deposed that on the date of the incident at about 1.30 in the noon, I was at my home, there was a quarrel between Kamla and Dadabhai. Dadabhai was abusing Kamla then the deceased told Dadabhai not to abuse Kamla at that time appellant came from his house, he was armed with Lathi and inflicted a blow of lathi on the head of the deceased. Other accused persons chased the deceased and also inflicted injuries on the body of the person of the deceased.
8. Ramautar P. W. 11 is also a witness of incident. He deposed that on 23.6.1992 he was at his house, at around 1.30 in the noon there was a quarrel between Kamla and Dadabhai then the deceased came out from his house, he told Dadabhai why you are abusing Kamla, thereafter Heeralal came out from his house. He was armed with Lathi. He had inflicted a blow of lathi on the head of the deceased then deceased ran away to his house and other accused chased the deceased.
9. Mst. Sundariya P. W. 14, Kamla Prasad P. W. 15 and Rajmani P. W.20 also deposed the same facts that there was a quarrel between Kamla and Dadabhai and appellant had inflicted a blow of lathi on the deceased.
10. Dr. R. B. Patel (P. W. 12) who performed the postmortem deposed that he noticed following injuries on the body of the persons of the deceased :
(i) Contusion 10x5 c. m. on left parietal bone of the head. 4
(ii) Contusion 10x3 c. m. on upper side of left eye.
(iii) Contusion 10x3.5 c. m. on the left side of back.
There was a fracture on left parietal bone. The cause of death of the deceased was head injury.
11. Keshkali (P. W. 5) did not make specific allegation about the nature of injury caused to the deceased. However, other eye- witnesses have specifically deposed that there was a quarrel between Kamla and Umashankar @ Dadabhai, thereafter deceased came out from his house and told him not to abuse in that event appellant came there, he was armed with lathi and he inflicted a blow of lathi on the head of the deceased.
12. The Apex Court in the matter of Arjun and another Vs. State of Chhatisgarh reported in (2017) 3 SCC 247, has held as under in regard to applicability of exception (4) of Section 300 of IPC :
"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.5
20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. Union Territory of Chandigarh (1989) 2 SCC 217, 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 vs. State, Rrepresented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590, 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. ....... 6
"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'."
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 pre-meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken "undue advantage" or acted in a cruel manner. 7
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.
13. For the purpose of invoking exception (4) of Section 300 of IPC the following requirements have to be satisfied :
(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.
14. In the present case, there was a quarrel between Dadabhai and Kamla, both were abusing to each other, in that event appellant came out from his house and he inflicted a blow of lathi on the head of the deceased. He did not inflict any other blow.
15. In view of aforesaid evidence and the principle laid down by the Apex court in the matter of Arjun (Supra), in our opinion the appellant is liable to be punished for commission of offence punishable under Section 304-I of IPC. The appellant was released on bail vide order dated 18.7.2002. Appellant was in jail since 26.6.1992 to 18.7.2002. He has completed 10 years of actual jail sentence. Hence, in our opinion, it would be just and proper to award the sentence as already undergone.
16. Consequently, this appeal filed by the appellant is partly allowed. His conviction for commission of offence punishable under Section 302 of IPC and fine are hereby set aside. Appellant is 8 convicted for commission of offence punishable under Section 304-I of IPC. He is awarded jail sentence of ten years. He has already undergone the aforesaid period. Appellant is on bail. His bail bond are hereby discharged.
17. Appeal is allowed in part, as indicated above.
(S.K. Gangele) (Anurag Shrivastava)
Judge Judge
kkc
Digitally signed by KRISHAN KUMAR CHOUKSEY
Date: 2017.11.22 16:42:01 +05'30'