Madhya Pradesh High Court
Ramhit Patel vs The State Of Madhya Pradesh on 26 February, 2010
Author: R.S.Jha
Bench: R.S. Jha
HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No. 2769/2000
Ramhit
Vs.
State of Madhya Pradesh
Present: Hon'ble Shri Rakesh Saksena &
Hon'ble Shri R.S. Jha, JJ.
________________________________________________
Shri Rajneesh Patel, counsel for the appellant.
Shri Prakash Gupta, Panel Lawyer, for the State/respondent.
JUDGMENT
( -02-2010 ) R.S.Jha, J. :
This appeal has been filed by the appellant against his conviction for an offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as the IPC) by judgment dated 17-11-2000 passed by the Additional Sessions Judge, Maihar, District Satna in Sessions Trial No. 29 of 1995 and the consequent sentence of imprisonment for life and a fine of Rs.2,000/- and in default, R.I. for two years
2. The prosecution case against the accused/appellant Ramhit is that he and his father Dadoli were harvesting their crops in the afternoon of 13-11-94 in village Kalla when the deceased Lallu broke their hedge for making a passage for their bullock cart which led to an altercation between the appellant Ramhit, his father Dadoli and the deceased Lallu. On hearing the altercation villagers, specifically, Ram Sumiran (PW-4) and Rambali (PW-5) and others reached the spot and stopped the parties from fighting. Thereafter, while the deceased Lallu and his brother Makholi (PW-3) were 2 Cr.A.No.2769/20 00 going to their house which was only at a short distance on way, the accused/appellant ran to his house, brought a spear (Ballam) and struck a single blow in front lower neck of the deceased Lallu which cut through his wind pipe and heart resulting in his death.
3. The trial Court on examining the oral and documentary evidence on record has held the appellant guilty of an offence punishable under Section 302 of the IPC but has acquitted his father Dadoli. Being aggrieved by his conviction under Section 302 of the IPC the appellant has filed the present appeal.
4. It is contended by the learned counsel for the appellant that his conviction by the trial Court is based on a misinterpretation and misreading of the oral documentary evidence on record inasmuch as the trial Court has failed to consider the evidence on record to the effect that both the parties fought on account of intrusion of the deceased and his brother Makholi (PW-3) on the property of the appellant and his father Dadoli which resulted in retaliation on their part and in the ensuing fight the appellant's father Dadoli as well a the appellant received injuries which have not been explained properly by the prosecution. The appellant further submits that he and his father Dadoli were assaulted by the deceased Lallu and his brother Makholi and the appellant and his father retaliated in their defence. It is submitted that in the ensuing struggle the spear (Ballam) of the deceased Lallu himself, accidentally pierced into his throat resulting in his death. It is stated that in the aforesaid facts and circumstances of the case which have not been properly appreciated by the trial Court no offence under Section 302 of the IPC is made out against the appellant. In the alternative it is submitted that the single injury which resulted 3 Cr.A.No.2769/20 00 in the death of the deceased Lallu was caused in a fight which flared up suddenly and in such circumstances looking to the surrounding facts and the single injury caused to the deceased the offence if any committed by the appellant would at best be one under Part-II of Section 304 of the IPC and not Section 302 of the IPC as held by the trial Court. It is submitted that the finding recorded by the trial Court is perverse and deserves to be set aside. In support of his submissions the learned counsel appearing for the appellant has relied upon the judgments of the Supreme Court rendered in the cases of Bunnilal Chaudhary v. State of Bihar, (2007) 1 SCC (Cri) 66, Shivapps Buddappa Kolkar v. State of Karnataka and others, 2005 SCC (Cri) 93 and Byvarapu Raju v. State of A.P. and another, (2008) 1 SCC (Cri) 30.
5. Per contra, the learned counsel appearing for the State submits that the evidence on record including the evidence recorded regarding injuries on the person of the appellant and his father has duly been taken into consideration by the trial Court. It is stated that the trial Court has duly analysed the oral and documentary evidence on record and has rightly recorded a conclusion that a fight broke out between the appellant, his father Dadoli and the deceased Lallu but the parties were pacified by Ram Sumiran (PW-4) and others after which the deceased and his brother started going home but the accused/appellant ran to his house, brought a spear along with him and struck a heavy blow by the said spear on the front of the lower neck of the deceased Lallu which resulted in his death on the spot and in such circumstances, the appellant has rightly been held guilty of an offence punishable under Section 302 of the IPC and convicted 4 Cr.A.No.2769/20 00 thereunder. The learned counsel for the respondent has placed reliance on a decision of the Supreme Court rendered in the case of State of Rajasthan v. Dhool Singh, AIR 2004 SC 1264 in support of his submissions.
6. We have gone through the impugned judgment as well as the oral and documentary evidence on record specifically that of Makholi (PW-3), Ram Sumiran (PW-4), Rambali (PW-5), Dr. A.K.Awadhiya (PW-7) and Mahendra Singh Karchuli (PW-8) as well as the statements of Dr. R.K.Jain (DW-1), Dr. A.C.Khare (DW-3) and Sant Prasad Patel (DW-4).
7. From the statements of the aforesaid witnesses it is clear that a fight between the accused/appellant and his father Dadoli and the deceased Lallu occurred on account of the deceased removing a part of the hedge between the land of the appellant and the deceased and blows were exchanged by both the parties and the father of the accused/ appellant was thrown on the ground by the deceased Lallu as a result of which he suffered amongst others a simple injury on his head but at this stage Ram Sumiran (PW-4) and others reached the spot and counselled both the sides after separating them. Ram Sumiran (PW-4) in paragraph 17 of his statement has clearly stated that at this stage peace was brought about and that the parties started going to their separate ways. It is also evident from the statements of the witnesses specifically PW-4, Ram Sumiran (in paragraph 23) that thereafter the accused/appellant ran to his house and came back after five minutes with a spear (Ballam) and without saying anything struck the fatal blow in the front lower part of the neck of the deceased Lallu as a result of which he fell down and thereafter died on the spot. The 5 Cr.A.No.2769/20 00 offending blood stained weapon and blood stained clothes were also seized by the police from the accused.
8. In view of the aforesaid, it is apparent that the incident actually occurred in two parts, the first part when the parties exchanged blows inflicting simple injuries on each other and the second part when after being pacified the parties started going their home ways, the accused/appellant ran to his house which was nearby, brought a spear and struck the fatal blow.
9. The plea of self defence or of accidental death in sudden fight taken by the appellant deserves to be rejected as in the instant case it is clear that when the sudden fight broke out between the parties the offending weapon was not carried by the accused/appellant and that in the sudden fight both the parties grappled with each other resulting in simple injuries to both of them including the injury on the head of Dadoli, father of the accused/appellant. It is also clear that at this stage villagers including PW-4, Ram Sumiran intervened and the parties were separated. It is also clear from the evidence that after being separated the deceased along with his brother started going back to their home and it is at this stage that the accused/appellant ran to his house and came back after arming himself with the spear in about five minutes and dealt the fatal blow on the front of the lower neck of the deceased which cut through his wind pipe as well as the top part of the heart resulting in his death on the spot and, therefore, it cannot be said that the blow was delivered by the accused/appellant in self defence or in the course of a sudden quarrel by using whatever weapon he was carrying along with him or that the deceased suffered the injury in the heat of the moment without their being any knowledge or intention on the part of the accused/appellant.
6 Cr.A.No.2769/20 0010. On the contrary, from the evidence it appears that after the sudden fight between the parties was over the appellant ran to his house, brought the spear, delivered the blow with considerable amount of force on the vital part of the body of the deceased with the knowledge and intention of causing the death of the deceased. It is also clear from the facts of the case that after the parties having been separated and pacified and were going their own separate ways, the accused/appellant with deliberate intent ran to his house and came back and delivered the fatal blow on a vital part of the body with the premeditated intent of causing death of the deceased with the spear.
11. The judgments of the Supreme Court on which reliance has been placed by the learned counsel for the appellant to contend that in all cases where a single injury is caused as a result of sudden fight, the case would fall under Part-I or Part-II of Section 304 of the IPC are not applicable to the present case as the facts of the present case clearly indicate that the fatal blow was not delivered by the appellant during and in the course of a sudden fight which erupted between the parties but was delivered after both the parties were separated and pacified and they started going their separate ways and that the appellant who was unarmed till that point of time went to his house, armed himself with a spear, came back and delivered the fatal flow.
12. The law as to whether in such circumstances the offence is one under Section 302 or Part-I or Part-II of Section 304 of the IPC has been duly summarized by the Supreme Court in the case of Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P., (2006) 11 SCC 444 and it has been specifically held in paragraphs 21 and 26 that the contention that in all cases where the death is on account of 7 Cr.A.No.2769/20 00 single blow the offence falls under Section 304 and not Section 302 of the IPC cannot be accepted. It was further held in paragraph 29 :-
"29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."8 Cr.A.No.2769/20 00
13. The judgment of the Supreme Court in the case of State of Rajasthan v. Dhool Singh, AIR 2004 SC 1264 (supra) is also to the same effect.
14. From the aforesaid law laid down by the Supreme Court it is clear that the Court has to examine the question of intention in each case with care and caution to decide as to whether the case falls under Section 302 or Section 304 (Part-I) or (Part-II) of the IPC and while doing so the Court has to take into consideration the factors mentioned in paragraph 29 quoted above apart from the other evidence on record in individual case.
15. In the aforesaid facts and circumstances and the law laid down by the Supreme Court we are of the considered opinion that the trial Court while analysing the evidence specifically in paragraphs 19 to 21, has committed no error as is apparent from the oral and documentary evidence on record and in recording a conclusion to the effect that the appellant is guilty of an offence punishable under Section 302 of the IPC. We are also of the considered opinion that the sentence and conviction imposed upon the appellant are in accordance with law and the submissions made to the contrary deserve to be rejected.
16. In view of the aforesaid, the appeal being sans merit accordingly is dismissed. The appellant who is in jail, shall undergo the sentence as imposed upon him by the trial Court.
(Rakesh Saksena) (R.S.Jha)
Judge Judge
mct
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