Madhya Pradesh High Court
Bhaiyalal vs The State Of M.P. on 4 September, 2017
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Appeal No.740 of 1994
Appellant: Bhaiyalal S/o Kanhaiyalal,
aged about 28 years,R/o Village Sihada,
District Khandwa (M.P.)
Versus
Respondent: The State of M.P.,
through Police Station Khandwa,
Distt. Khandwa (M.P.)
Present : Hon. Shri Justice S.K.Gangele &
Hon. Shri Justice Anurag Shrivastava.
Shri Vijayendra Singh Choudhary, counsel for the appellant.
Shri Akhilesh Singh, Deputy Government Advocate, for the
respondent/State.
Whether approved for reporting: Yes/No.
JUDGEMENT
(05.09.2017) The learned counsel for appellant has submitted that the appellant cannot be acquitted from the offence. He has further submitted that as per the evidence available on record, the offence said to be alleged against the appellant could be under section 304-I of IPC and the appellant was in jail for near about 11 years. Hence, his sentence could be modified as already undergone.
2. The appellant has filed this appeal against the judgment dated 1.6.1994 passed in Sessions Trial 2 Cr.A.No.740/1994 Bhaiyalal Vs. State of M.P. No.70/1993; whereby he has been convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life with a fine of Rs.500/-, in default of payment of fine to undergo rigorous imprisonment for six months. He has also been convicted under section 324 of IPC and sentenced to RI for 3 years and fine of Rs.500/-, in default of payment of fine to undergo RI for 6 months.
3. The prosecution story in brief is that on 28.12.1992 at around 7:00 O'Clock in the evening, Shivlal had come to his field along with a bullock-cart. He had parked the cart infront of his house. When he was taking out the grass, which was loaded in the cart, Kailash abused him and objected about parking the bullock-cart at that place. Shivlal and his wife Biraj Bai told him to wait for sometime, the cart would be removed from the place after sometime. At that time Kailash started abusing them. Thereafter, Kailash had taken out his Shoe and he started beating Shivlal. At that time, Bhaiyalal came there. He had a knife in his hand and he had inflicted a blow on the stomach of Shivlal. His father Maujilal and wife Biraj Bai tried to save Shivlal. Then Bhaiyalal inflicted injuries to them also. Another person Kailash had snatched the knife from Bhaiyalal and inflicted a blow to Tara Bai. Thereafter, both appellant and Kailash ran away from the spot. Report of the incident was lodged at the Police station on 29.12.1992. Next day the deceased was died. The police conducted the investigation and filed the charge-sheet against two persons.
4. Appellant Bhaiyalal and co-accused Kailash both abjured their guilt and pleaded innocence. The trial court, 3 Cr.A.No.740/1994 Bhaiyalal Vs. State of M.P. after trial, held Bhaiyalal guilty for commission of offence punishable under sections 302 and 324 of IPC and awarded the sentence of imprisonment for life and rigorous imprisonment for three years. Accused Kailash was also convicted for commission of offence under section 324 of IPC and awarded a sentence of rigorous imprisonment for three years. This appeal is by Bhaiyalal only.
5. The prosecution examined total 11 witnesses in support of the case.
6. Maujilal (P.W.1) deposed that deceased was his son and Tara Bai is his wife. On the date of incident all the three persons Shivlal and Biraj Bai, wife of Shivlal and his wife Tara Bai had been unloading the bullock-cart. In the bullock cart grass was loaded. The cart was parked infront of my house. Kailash, who lives infront of his house, objected to it and he told that why you are unloading grass. At that place along with Bhaiyalal, Kailash was also present. They abused us. Kailash had beaten my son Shivlal by shoe. Thereafter the present appellant had inflicted a blow by knife on the stomach of my son and me also. Thereafter the appellant also inflicted a blow to my wife Tara Bai. We had gone to the house of Sarpanch and Sarpanch had informed the incident to the police and thereafter police had come to the village and we went to Khandwa. Doctor had examined my wife, my daughter-in-law and son Shivlal. The son was admitted in the hospital. He died in the night. At the time of incident, the accused persons were in drunken state. The same facts have been deposed by Tara Bai (P.W.2). She deposed that 4 Cr.A.No.740/1994 Bhaiyalal Vs. State of M.P. Kailash had inflicted an injury by knife after taking knife from Bhaiyalal to him.
7. Biraj Bai (P.W.3), who is the wife of the deceased also deposed the same facts that the bullock-cart was parked infront of the house and when we were unloading the grass, which was loaded in the bullock-cart Kailash had objected about it and Kailash and Bhaiyalal came there and thereafter they abused him and Kailash had given a blow of knife on the stomach of the deceased due to which he fell down. Thereafter, Kailash had also inflicted injury by knife to my father-in-law and Kailsh had inflicted blow of knife to my mother-in-law.
8. Chhogalal (P.W.4), who is the neighbour, deposed that the deceased and three other injured persons were unloading the bullock-cart and thereafter I had seen that there was a quarrel between Shivlal and Kailash. Kailash was complaining that Shivlal and his wife had parked the bullock-cart on the road and thereafter they abused each other. After sometime, I had gone to my house and subsequently I came to know that Shivlal had received injuries by knife. Thereafter, all the four persons had gone to the house of Sarpanch.
9. (P.W.5) also deposed that there was a quarrel between Shivlal and Kailash and Bhaiyalal had inflicted an injury by knife to Shivlal.
10. Dr. S.S.Chouhan (P.W.6) deposed that on 28.12.1992 he was posted as Assistant Surgeon at Khandwa. He examined Shivlal S/o and noticed one incised wound 3X5 cm 5 Cr.A.No.740/1994 Bhaiyalal Vs. State of M.P. deep in the stomach. Due to the aforesaid injury Omentum was coming out. The injury was caused by sharp-edged weapon. He further deposed that he had also examined Maujilal S/o Champalal and noticed one incised injury 3X5 cm and Tarabai W/o of Maujilal and noticed one injury on her hand. It was incised wound of 2-1/2 X 1/2 X 1/2 cm. Biraj Bai S/o Shivlal had also received injuries. He further deposed that Naib Tahsildar, Khandwa had recorded the dying declaration of Shivlal S/o Maujilal on 28.12.1992 and of three other persons.
11. Dr. Rajendra Sinha (P.W.7) deposed that on 29.12.1992 I was posted as Assistant Surgeon in Khandwa and performed the postmortem of the body of deceased Shivlal. I noticed one incised wound on the left side of the stomach of 5X3 cm deep. The deceased died due to aforesaid injury.
12. H.S. Thakur (P.W.8) is the Naib Tahsildar who deposed that he had recorded the dying declaration of the deceased.
13. Chhotelal (P.W. 9) deposed that I was posted as Sub- Inspector at Police Station Modhat Road, Khandwa at the relevant time. T.I. S.K. Shrivastava told me that there was a quarrel in the village and thereafter we had reached the village and I recorded the Dehati Nalishi, Ex.P.14. Thereafter father and mother of Shivlal were admitted at Khandwa hospital.
14. Ramesh (P.W.10) deposed that the knife was seized before him on the memorandum of Bahiyalal Ex.P.17 and the seizure memo is Ex.P.18.
6Cr.A.No.740/1994 Bhaiyalal Vs. State of M.P.
15. Satyendra Kumar Shrivastava (P.W.11) is the Investigating Officer. He deposed that S.I. Katare had recorded the Dehati Nalishi and when the deceased died on 29.12.1992, the offence under Section 302 was registered and I prepared the spot map, after reaching on the spot. Plain earth and red earth were seized vide seizure memo Ex.P.20. I recorded the statements of Rajaram, Jagdish and Gopal on 30.12.1992 and Kailash was arrested on the same day vide arrest memo, Ex.P.22. Bhaiyalal was arrested on 1.1.1993 vide arrest memo, Ex.P.16. On the memorandum of Bhaiyalal, a knife was seized vide seizure memo, Ex.P.18. I recorded the statements of witnesses Ajay Shrimali on 1.1.1993 and Maujilal, Tara Bai and Biraj Bai on 4.1.1993.
16. From the statements of injured eyewitness Maujilal (P.W.1), Tara Bai (P.W.2) and Biraj Bai (P.W.3) this fact has been proved that the appellant had inflicted a blow of knife on the stomach of the deceased. Appellant had also caused injury to the father of the deceased Maujilal. This fact has also been proved by the doctor, who performed MLC and the doctor who performed the postmortem of the deceased.
17. Other two witnesses Chhogala (P.W.4) and Jagdish (P.W.5), who are the neighbours, deposed that there was a quarrel between the appellant and the deceased on the question of parking of bullock-cart on the road. Both were abusing each other. From the evidence, it can be safely held that at the time of quarrel and in the heat of passion, the appellant had inflicted a single blow, which had hit on the stomach of the deceased. Doctor, who performed the postmortem and another doctor, who conducted the MLC 7 Cr.A.No.740/1994 Bhaiyalal Vs. State of M.P. verified the fact that there was only one injury on the stomach of the deceased.
18. Now the question is that whether this offence is of murder or under section 304 of IPC. The Apex Court in the case of Willie (William) Slaney, Vs. State of Madhya Pradesh, AIR 1956 SC 116 has held as under:-
"Where the accused causing the death of another hand no intention to kill then the offence would be murder only if (I) the accused knew that the injury inflicted would be likely to cause death or (2) that it would be sufficient in the ordinary course of nature to cause death or (3) that the accused knew that the act must in all probability cause death."
19. Hon'ble Supreme Court in B.D. Khunte Vs. Union of India and Others, (2015) 1 SCC 286 has also held as under in regard to ingredients of Sections 302, 300 and 304 of IPC.:-
"12. What is critical for a case to fall under Exception 1 to Section 300 IPC is that the provocation must not only be grave but sudden as well. It is only where the following ingredients of Exception 1 are satisfied that an accused can claim mitigation of the offence committed by him from murder to culpable homicide not amounting to murder:
(1) The deceased must have given provocation to the accused.
(2) The provocation so given must have been grave.
(3) The provocation given by the deceased must have been sudden.
(4) The offender by reason of such grave and sudden provocation must have been deprived of his power of self control; and (5) The offender must have killed the deceased or any other person by mistake or accident during the continuance of the deprivation of the power of self-control.8
Cr.A.No.740/1994 Bhaiyalal Vs. State of M.P.
13. Applying the above tests to the case at hand there is no gainsaying that an able-bodied youthful Jawan when physically assaulted by his superior may be in a state of provocation. The gravity of such a provocation may be heightened if the physical beating was meant to force him to submit to unnatural carnal intercourse to satisfy the superior's lust. The storeroom incident involving the appellant and the deceased is alleged to have taken place when the deceased had bolted the door of the storeroom to keep out any intruder from seeing what was happening inside. By any standard the act of a superior to humiliate and force his subordinate in a closed room to succumb to the lustful design of the former was a potent recipe for anyone placed in the appellant's position to revolt and retaliate against the treatment being given to him. What may have happened inside the storeroom if the appellant had indeed revolted and retaliated against the unbecoming conduct of the deceased is a matter of conjecture. The appellant or anyone in his position may have retaliated violently to the grave peril of his tormentor. The fact of the matter, however, is that the appellant appears to have borne the assault without any retaliation against the deceased superior and somehow managed to escape from the room.
The critical moment when the appellant could perhaps lose his cool and equilibrium to take retaliatory action against the deceased was thus allowed to pass uneventfully, grave and sudden provocation for any such action notwithstanding.
14. All that the evidence proves is that after the said incident the appellant was seen crying and depressed and when asked by his colleagues he is said to have narrated his tale of humiliation at the hands of the deceased. There is no evidence to prove that after the incident aforementioned the appellant had continued to suffer a prolonged spell of grave provocation. By their nature such provocation even when sudden and grave cool off with 9 Cr.A.No.740/1994 Bhaiyalal Vs. State of M.P. passage of time often lapsing into what would become a motive for taking revenge whenever an opportunity arises. That appears to have happened in the present case also for the appellant's version is that he and his colleagues had planned to avenge the humiliation by beating up the deceased in the evening when they all assemble near the water heating point. That apart, the appellant attended to his normal duty during the daytime and after the evening dinner, went to perform his guard duty at 2100 hrs. All these circumstances do not betray and signs of grave leave alone grave and sudden provocation to have continued haunting the appellant and disturbing his mental equilibrium or depriving him of self-control that is an essential attribute of grave and sudden provocation to qualify as a mitigating factor under Exception 1 to Section 300 IPC."
20. From the judgment of the Apex Court, the facts of the case and the offence, in our opinion the appellant has committed an offence punishable under section 304 Part I of the IPC. The appellant had also inflicted an injury to the father of the deceased and for that the trial court had rightly held the appellant guilty for commission of offence punishable under section 324 of IPC. The appellant was arrested on 1.1.1993. He was granted suspension of sentence by this Court vide order dated 18.2.2003. He was in jail for 10 years. Hence, in our opinion, he had completed actual jail sentence of near about 10 years. If the appellant is awarded a sentence of rigorous imprisonment for 10 years for commission of offence punishable under section 304-I of the IPC and the sentence awarded by the trial court for commission of offence punishable under section 324 of the IPC and sentence of 3 years R.I.i s hereby maintained.
10Cr.A.No.740/1994 Bhaiyalal Vs. State of M.P.
21. Consequently, the appeal filed by the appellant is partly allowed. His conviction and sentence awarded by the trial court under section 302 of the IPC is hereby set aside. The sentence awarded by the trial court under section 324 of the IPC is upheld. The appellant is convicted for commission of offence punishable under section 304-I of IPC. He is awarded a sentence of RI for 10 years, as already undergone for commission of offence punishable under section 304-I of IPC and RI for 3 years for offence punishable under section 324 of IPC. Both the sentences shall run concurrently. The appellant is on bail. As the appellant has completed jail sentence as awarded by this Court, his bail bonds are discharged.
(S.K.GANGELE) (ANURAG SHRIVASTAVA)
JUDGE JUDGE
TG/-