Madhya Pradesh High Court
Virendra Sakhwar vs The State Of Madhya Pradesh on 7 April, 2025
Author: Hirdesh
Bench: Anand Pathak, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 7TH OF APRIL, 2025
CRIMINAL APPEAL No. 1535 OF 2023
VIRENDRA SAKHWAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Atul Gupta- learned Counsel for appellant.
Shri A. K. Nirankari- learned Public Prosecutor for respondent/State
JUDGMENT
Per:Justice Hirdesh :-
The instant criminal appeal under Section 374 of CrPC has been filed by appellant- Virendra Sakhwar challenging the judgment of conviction and order of sentence dated 02-12-2022 passed by Second Additional Sessions Judge, Ambah, District Morena in Special Case No.1000258 of 2020, whereby the appellant has been convicted under Section 302 of IPC and sentenced to undergo Life Imprisonment with fine of Rs.5,000/- in default of payment of fine, further undergo one year's rigorous imprisonment and further he has been convicted under Section 325 of IPC and sentenced to undergo one year's rigorous imprisonment with fine of Rs.2,000/-, in default of payment of fine, further undergo three months' rigorous imprisonment.Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 2
(2) Case of prosecution, in short, is that complainant- Sanju alias Vitti (wife of appellant) gave unnatural death intimation to Police Station Porsa on 8 th June, 2020 alleging therein that on 08-06-2020 around 07:00 in the night, when her husband was assaulting her, her father-in-law Asharam (since deceased) came to save her. Her husband-appellant stabbed her father-in-law in the chest with a knife causing his death. On the basis of such intimation, Crime No.286 of 2020 for offence under Sections 294, 323, 302 of IPC was registered vide Ex.P2. It is alleged by the complainant that she was sitting at the door of her house and her son Vipul, aged around 09 years and daughter Vaishnavi aged around 7 years were sitting near her. At that time, her husband came and started saying to her to do labour work and bring money. On that, she told her husband that she is pregnant and cannot do labour. Her husband suspected her character and because of this, he abused her in filthy language and started beating her with kicks and fists and also twisted both fingers of her left hand. When she tried to escape, her husband went inside house, took out a grinding stone (sil) and hit on the right side of her forehead. He also beat her on both eyes and cheeks with fists and also hit her on back and waist. When she screamed, her father-in-law Asharam, who was sleeping on a cot outside house, came to save her. At that time, relatives and neighbours from village also started trying to save her. Her husband went inside the house, brought a knife and with intention to kill her father-in-law, directly stabbed her father-in-law in the chest and twisted the knife in his chest. Thereafter, her husband ran away. Her father-in-law was found dead. On the basis of such allegations, FIR was registered vide Ex.P1.
(3) Investigation was conducted. During investigation, Section 325 of IPC was enhanced. Spot map was prepared vide Ex.P3. Appellant-accused was arrested vide arrest memo Ex.P17. On the basis of memorandum of appellant-accused, knife was seized. Postmortem of dead body of deceased Asharam was conducted vide Ex.P23.
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 3Statement of witnesses were recorded. After completion of investigation and other formalities, charge-sheet was filed before competent Court of criminal jurisdiction.
(4) Charges were framed. Appellant abjured his guilt and pleaded complete innocence. In his statement recorded under Section 313 of CrPC, appellant pleaded that he has not committed any incident either with deceased or with his wife. He further pleaded that against his wishes, his wife used to go with Satyaveer of the village and Ulfat and people of her maternal home without informing him for many days and used to stay whole night with them. He and deceased used to stop her from doing so, that is why, he has been falsely implicated. Despite being forbidden by the deceased, Satyaveer used to forcibly come to met his wife and has committed alleged crime with deceased. Appellant in order to lead his evidence, did not examine a single witness.
(5) Prosecution, in order to prove its case, examined as many as 13 witnesses including the wife of appellant Sanju alias Bitti (PW-1), child witness PW-2 Vipul (son of appellant) and child witness PW-6 Ku. Vaishnavi (daughter of appellant) (6) After conclusion of trial, the Trial Court on the basis of prosecution evidence as well as exhibited material/documents available on record, found appellant guilty and accordingly convicted and sentenced him with fine for commission of offence under Sections 302 & 325 of IPC, as stated in Para 1 of this judgment.
(7) Challenging the impugned judgment of conviction and order of sentence, it is contended on behalf of appellant that evidence of wife of appellant Sanju alias Bitti Bai (PW1) is not reliable as her testimony is not supported by other witnesses. The independent witnesses have not supported prosecution version. Wife of appellant wrote the report at home and not at police station which casts doubt on the entire prosecution case. Prosecution has failed to prove its case beyond reasonable doubt. Jitendra (PW-5) in his cross-examination deposed that police had interrogated him at Hospital in front of Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 4 him and took thumb impression of deceased which falls under the category of ''Dying Declaration'' under Section 32 of Evidence Act, however, the police has suppressed the actual fact and fabricated the prosecution story due to which, prosecution case itself is doubtful. There is a discrepancy in the nature of injuries regarding the clothes worn by deceased at the time of incident as per Panchayatnama of dead body Ex.P14, postmortem report Ex.P23 and evidence of Dr. P.P. Sharma (PW-12). Seizure witness Ravindra (PW-10) did not support seizure memo Ex.P18 and Ex.P19 that blood of deceased was found on the seized knife. There is no substantive evidence on record which points towards guilt of appellant, hence, convicting the appellant on the basis of bleak piece of evidence is not tenable in the eyes of law. Relying on the judgments of Hon'ble Apex Court in the case Jagir Singh vs. State of Punjab 1983 SC 463, Tholan vs. State of Tamil Nadu AIR 1984 SC 759, Ramesh Vithalrao Thakre & Another vs State Of Maharashtra (2009) 17 SCC 438 and Sangharaj Bhogappa Kamble State Of Maharashtra (2010) 13 SCC 651, it is contended that there is no intention on the part of appellant by stabbing deceased with a knife in his chest causing serious injury leading to death of deceased. There is no premeditation or malice on the part of appellant. Incident took place on the spur of moment. Therefore, offence would fall under Section 304 either Part I or Part II of IPC. On these grounds, it is prayed that the impugned judgment of conviction and order of sentence passed by learned Trial Court deserves to be set aside by allowing the instant appeal.
(8) On the other hand, learned Counsel for State supported the impugned judgment and submitted that prosecution has produced its evidence and has proven the charges against the appellant beyond reasonable doubt. The appellant has not produced any evidence in his support. Testimony of wife of appellant- Sanju alias Bitti Bai (PW-1) is consistent and reliable and her testimony is also corroborated by her son Vipul (PW-2) and the medical evidence. The findings arrived at by learned Trial Court do not require any interference by this Court. Hence, prayed for dismissal of this appeal.
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 5(9) Heard counsel for parties at length and perused the record.
(10) The first question which requires determination is whether the death of deceased Asharam was a homicidal death or not ?
(11) Pawan Singh (PW-13), Sub-Inspector of Police in PS Porsa in his evidence deposed that on 08-06-2020 after registration of FIR, during investigation, on 09-06- 2020, after preparation of Safina form vide Ex. P13 and Panchayatnama of dead body vide Ex.P14, he sent for postmortem of deceased Asharam to CHC, Porsa.
(12) Dr. P.P. Sharma (PW-12) in his examination-in-chief deposed before the Court that he was posted at CHC, Porsa from October 2017 to May 2021. During the said period, he had worked with Dr. S. S. Mevafaros, who has passed away. On 09-06-2020, Dr. S.N. Mevafaros was on duty and Constable No. 976 Satendra Singh Kushwah of PS Porsa gave a letter for postmortem of deceased Asharam. He identified the handwriting and signature of Dr. Mevafaros, who had conducted postmortem of deceased vide Ex.P.23. Upon examination, following injuries were found on the body of deceased:-
(i) Injury No.1 was a cut wound between second and third ribs going towards left side measuring 4x2 cm and was deep enough to reach muscles.
(ii) Injury No.2 was a cut wound on the left forearm measuring 2x 1.5 cm and was as deep as muscles.
(iii) Injury No.3 was abrasion on right leg middle measuring 3x 3 cm.
Injuries No.1 and 2 were caused by sharp object and injury No.3 was caused by hard & blunt object. There was a hole and a cut in left shoulder. There was hole in lungs as well. There was foam with blood in sacrum. There was a hole and a cut in the heart as well. Stomach was swollen and all other organs were red. Small and large intestines were filled with air. There was a little urine in urinary bladder. According to opinion of Dr.Mevafaros, death of deceased was due to shock and cardiac arrest caused by injuries Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 6 to the heart caused by a sharp object and death was caused due to excessive bleeding. Death was within 24 hours of postmortem examination.
(13) From the aforesaid medical evidence and other evidence, it is clear that the cause of death of deceased was homicidal in nature.
(14) The next question for determination is whether death of deceased was caused by appellant or not?
(15) It is necessary to recapitulate the genesis in which the alleged incident took place, the surrounding circumstances and whether appellant intended to commit murder of his father. In the present case, although all independent witnesses did not support prosecution story and turned hostile, but conviction recorded by trial Court is based on sole testimony of Sanju alias Bitti Bai (PW-1) also corroborated by evidence of her son Vipul (PW-2) and medical evidence, but this Court thinks it apposite to go through the evidence of following material witnesses.
(16) Sanju alias Bitti Bai (PW-1) in her testimony deposed that appellant is her husband and deceased Asharam was her father-in-law. There had been quarrel between her and her husband for two months. Accused used to drink alcohol and beat and harass her. He severely beat her, causing injury to her left hand, fracturing finger on her left hand and beating her with sticks all over body, hitting her hand repeatedly, hitting her head, causing injuries. At the time of incident, she was pregnant. Her husband used to drink alcohol and beat her, tell her to work, earn money and give it to him. On the date of incident, when her husband was beating her, her father-in-law Asharam came to save her, but her husband stabbed her father-in-law in the chest with a knife, twisted the knife and murdered him causing his death. This witness in Para 10 of her cross- examination, deposed that when police came to her house, she wrote report at the house itself, not at police station. She had gone to police station once. This witness denied that Ulfat and his two or three associates were present in her house on the date of incident Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 7 and on that date, her husband and father-in-law stopped her from going with Ulfat. This witness in Para 12 of her cross-examination deposed that except she, her children and mother-in-law were also present at the time of incident. This witness in Para 18 of her cross-examination admitted that if accused and deceased had not stopped her from visiting and staying at place of Ulfat and Satyaveer, she would not have filed any report against accused.
(17) Vipul (PW-2) son of appellant in Para 02 of his cross-examination deposed that at the time of incident, he was sitting at the door of the house with his sister Vaishnavi. His father Virendra came and started abusing and beating his mother. His father beat his mother with kicks and fists and hit head of his mother with a grinding stone (Sil) which caused bleeding and his mother started screaming. This witness in Para 3 of his cross- examination further denied that his father ran inside the house and brought a knife and thrust it in the chest of his grandfather. This witness admitted that his grandfather died on the spot after being stabbed. Because of non-understanding the matter, he in his earlier statement wrongly deposed that at the time of incident, he had gone outside for playing. This witness in his police diary statement Ex.P-4 deposed that his father ran inside the house and brought a knife and in front of everyone, he stabbed his grandfather directly in his chest and twisted it. After that, his father ran way. When his mother and other people of village saw his grandfather, they found that his grandfather was already dead. This witness in his cross-examination admitted that his father killed his grandfather by stabbing knife in his chest.
(18) Ku. Vaishnavi (PW-6) daughter of appellant in Para 01 of her statement recorded under Section 164 of CrPC deposed that on the date of incident around 07:00 pm, her father Virendra came home in drunken state and quarreled with her mother. Her father dragged her mother out of house and took a knife and threw a stone on her mother's head due to which, her mother got head injuries. Her father also hit her mother with Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 8 kicks and fists. Her father hit her grandfather on his chest with a knife due to which, he got a hole in his chest and blood started oozing out and her grandfather died on spot. She had seen the incident because she was at home. In Para 1 of her cross-examination, this witness deposed that at the time of incident, neighbour Satyaveer came to meet her mother. Despite objection raised by her grandfather, Satyaveer told that he will come to meet her mother. Satyaveer ran away after stabbing her grandfather. Apart from this, she does not know anything.
(19) Child witness Ku. Vaishnavi (PW-6) in Para 02 of her cross-examination denied that her father Virendra stabbed her grandfather Asharam in the chest and twisted the knife in stomach. Her father used to beat her mother. This witness in her police case diary statement Ex.P9 deposed that at the time of incident, she was sitting with her mother and brother Vipul at the door of house. Her father came and started abusing and beating her mother and started kicking and punching her mother due to which, her mother got bleeding. On screaming her mother, her grandfather came to save her and some people also came to save her. Then, her father Virendra ran inside the house and brought a knife and in-front of everyone, he stabbed her grandfather in his chest and twisted it. After the incident, her father Virendra ran way. When her mother and other people from the village saw her grandfather, it was found that her grandfather was dead.
(20) From the evidence of this child witness, there are more discrepancies and inconsistencies in police diary statement and Court statement, therefore, her evidence cannot be said to be reliable.
(21) Smt. Chameli (PW-7), mother of appellant in her evidence deposed that at the time of incident, she was sitting at home. Satyaveer from the neighbourhood had come to her house to meet her daughter-in-law Sanju alias Bitti. Her husband (deceased) forbade him from coming. After this, a quarrel took place between Satyaveer and her. Satyaveer hit her husband Asharam in the stomach with a knife due to which, her Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 9 husband died on the spot. Although this witness in her cross-examination deposed that her son-appellant has not committed murder of her husband by means of knife, but in Para 06 of her cross-examination deposed that her daughter-in-law Sanju alias Bitti used to go out with Satyaveer from nighbourhood for two-four days and used to stay overnight with him. This witness further deposed that her son Virendra and husband deceased Asharam used to forbid her daughter-in-law not to go with Satyaveer and not to invite Satyaveer to her house and over this matter, Satyaveer committed murder of her husband by means of knife.
(22) Smt. Chameli (PW-7) in her police diary statement Ex.P10 deposed that on the date of incident around 07:00 pm, she was sitting at the door of her house. Her younger son Ravindra had gone to Porsa. Her elder son-Virendra (appellant) came home in drunken state and started bearing his wife Sanju and said his wife that if she does not earn money by working as labourer, he will throw out of house. He also doubted his wife's character and started bearing her with kicks and fists. He caught hold of her both fingers and twisted them. He went inside the house and brought a grinding stone (sil) and hit his wife Sanju on the head. Due to which, she got hurt and fell on the ground. Other people of village came to rescue and intervened. After a while, her son Virendra ran and started bearing his wife again. He went inside the house and brought a knife. When her husband Asharam tried to save her daughter-in-law Sanju, her son- appellant Virendra with intention of killing her, stabbed the knife directly in the chest and twisted it, as a result of which, her husband Asharam fell on the bed and blood started oozing out. Then, people of village came and saw that her husband was already dead. Her elder son Virendra killed her husband- Asharam by stabbing him in the chest with knife.
(23) From the evidence of this witness, it is apparent that there are many discrepancies and inconsistencies in her police diary statement and Court statement, that is why she was declared hostile by the prosecution.
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 10(24) Considering the evidence of the prosecution witnesses, it was found that PW-1 Sanju @ Bitti Bai is the wife of appellant and injured witness. The evidence of wife of deceased was totally unrebutted in her cross-examination, which is duly supported by her son Vipul (PW-2) and medical evidence. So, in the considered opinion of this Court, it has been found proved from the evidence of PW-1 Sanju @ Bitti Bai and Vipul (PW-
2) that appellant has caused death of the deceased by means of knife blow.
(25) So far as the injuries caused by appellant to his wife Sanju alias Bitti Bai (PW-
1) is concerned, Dr. P.P. Sharma (PW-12) in his Court statement deposed that Dr. S.N. Mevafaros, who examined injured Sanju alias Bitti Bai, has passed away and he identified the handwriting and signature of Dr. Mevafaros. The following injuries were found on the body of injured Sanjy alias Bitti Bai vide MLC Ex. P21:-
Injury No.1 contusion on the right side of forehead measuring 5x5 cm.
Injury No.2 contusion on right cheek measuring 4 x 4 cm.
Injury No.3 contusion measuring 3x3 cm below ear on cheek.
Injury No.4 peeling and swelling on left hand finger next to middle and little finger measuring 4x4 cm.
Injury No.5 contusion on right back measuring 6x6 cm.
According to opinion of doctor, all the injuries were within six hours and were inflicted by hard and blunt object. X-ray was advised to know the condition of injury no.4. All other injuries are of simple in nature. As per X-ray report of injured Sanju prepared by Dr. Mevfros (Ex.P22) fracture of injury no.4 was found.
(26) So, considering the evidence of PW-1 Sanju @ Bitti Bai and the medical evidence, it is proved that appellant voluntarily with intention caused grievous injuries to his wife Sanju @ Bitti Bai. The prosecution has rightly established appellant guilty for commission of offence punishable under Section 325 of IPC.Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 11
(27) The next pivotal question for determination is whether cause of death of deceased was homicide, not amounting to murder or not ?
(28) The provisions under Section 304 of IPC regarding punishment for culpable homicide not amounting to murder read as under:-
''Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.'' (29) The Hon'ble Supreme Court in the matter of Gurmukh Singh vs. State of Haryana (2009) 15 SCC 635, in detail, has discussed the relevant factors which are required to be taken into consideration before awarding appropriate sentence to accused as under:-
''10. We have carefully perused the judgments of the trial court and the High Court as also the evidence of witnesses. It is fully established from the evidence on record that the appellant had caused the injury to the deceased Hazoor Singh which proved fatal.
11. The short question which falls for consideration of this court is whether, on consideration of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 IPC should be upheld or the conviction be converted to one under Section 304 Part II IPC? Appropriate sentencing is a very vital function and obligation of the court.
12. There are significant features of the case which are required to be taken into consideration in awarding the appropriate sentence to the accused:Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 12
(1) Admittedly, the incident happened at the spur of the moment;
(2) It is clear from the evidence on record that the appellant was not using that path everyday.
(3) The appellant gave a single lathi blow on the head of the deceased which proved fatal;
(4) The other accused did not indulge in overt act therefore, except the appellant, the other co-accused namely Niranjan Singh, Harbhajan Singh and Manjit Singh have been acquitted by the trial court;
(5) The incident took place on 8.1.1997 and the deceased remained hospitalized and ultimately died on 14.1.1997;
(6) The trial court observed that there was no previous enmity between the parties.
Therefore, it is abundantly clear that there was no pre-
arranged plan or that the incident had taken place in furtherance of the common intention of the accused persons. When all these facts and circumstances are taken into consideration in proper perspective, then it becomes difficult to maintain the conviction of the appellant under section 302 IPC.
14. This Court had an occasion to deal with cases of similar nature. In Jagrup Singh v. State of Haryana (1981) 3 SCC 616, the accused had inflicted a single blow in the heat of moment in a sudden fight with blunt side of Gandhala on the head of the deceased causing his death. According to the opinion of the doctor this particular injury was sufficient in the ordinary course of nature to cause death. But, according to this Court, the intention to cause such an injury was likely to cause death had not been made out. This Court altered the conviction of the accused from section 302 IPC to section 304 Part II IPC and the accused was directed to suffer rigorous imprisonment for a period of seven years.
15. In Gurmail Singh & Others v. State of Punjab (1982) 3 SCC Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 13 185, the accused had no enmity with the deceased. The accused gave one blow with the spear on the chest of the deceased causing his death. The injury was an incised wound. The Sessions Judge convicted the accused under section 302 IPC and sentenced him to rigorous imprisonment for life. The High Court affirmed the same. This Court, while taking into consideration the age of the accused and other circumstances, converted the conviction from section 302 IPC to one under section 304 Part II IPC and sentenced him to suffer rigorous imprisonment for five years and a fine of Rs.500/-, in default to suffer rigorous imprisonment for six months.
16. In Kulwant Rai v. State of Punjab (1981) 4 SCC 245, the accused, without any prior enmity or pre-meditation, on a short quarrel gave a single blow with a dagger which later proved to be fatal. This Court observed that since there was no pre-meditation, Part 3 of section 300 of the Indian Penal Code could not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the facts and circumstances of that case, the conviction of the accused was altered from section 302 to that under section 304 Part II IPC and the accused was sentenced to suffer rigorous imprisonment for five years.
17. In Jagtar Singh v. State of Punjab (1983) 2 SCC 342, the accused in the spur of the moment inflicted a knife blow in the chest of the deceased. The injury proved to be fatal. The doctor opined that the injury was sufficient in the ordinary course of nature to cause death. This Court observed that:- (SCC p. 344 , para 8) ''8. the quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. This Court altered the conviction of the appellant from section 302 IPC to section 304 Part II IPC and sentenced the accused to suffer rigorous imprisonment for five years.
18. In Hem Raj v. State (Delhi Administration) (1990) Supp.
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 14SCC 291, the accused inflicted single stab injury landing on the chest of the deceased. The occurrence admittedly had taken place in the spur of the moment and in heat of passion upon a sudden quarrel. According to the doctor the injury was sufficient in the ordinary course of nature to cause death. This Court observed as under:
"14. The question is whether the appellant could be said to have caused that particular injury with the intention of causing death of the deceased. As the totality of the established facts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without pre- meditation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury; but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300 IPC will be attracted......"
This Court while setting aside the conviction under section 302 convicted the accused under section 304 Part II and sentenced him to undergo rigorous imprisonment for seven years.
19. In Abani K.Debnath & Another v. State of Tripura (2005) 13 SCC 422, this Court, in somewhat similar circumstances, while converting the sentence from section 302 IPC to one under section 304 Part II IPC observed as under: (SCC p. 424, para 5) "5. This leads us to consider as to under what Section of law A-1 Abani K. Debnath is liable to be convicted in a given facts of the case. The prosecution evidence clearly discloses that the dao blow dealt by A-1 is preceded by a mutual quarrel. We have already noted that there was no common intention to kill Ranjit Das. From the nature of injuries it is disclosed that A-1 dealt only one dao blow perhaps in the Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 15 spur of moment. The incident had taken place on 10.8.1990 and the deceased succumbed to injury on 15.8.1990 after a lapse of 7 days. Taking the prosecution evidence and medical evidence cumulatively we are of the view that the conviction of A-1 also cannot fall under Section 34 IPC but at the most under Section 304 Part II. We accordingly convert the sentence of A-1 Abani K. Debnath under Section 34 IPC to that one under Section 304 Part II IPC and sentence him to suffer R.I. for five years. The fine amount imposed by the trial court and Page 2091 affirmed by the High Court is maintained. It is stated at the Bar that A-1 has undergone about 18 months' imprisonment, if that is so, he will be entitled to get the benefit of Section 428 Cr.P.C."
20. In another case Pappu v. State of M.P. (2006) 7 SCC 391, this Court observed as under: (SCC pp. 394-95, paras 13-16) "13.......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 IPC. 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 have 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'.
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 1614. It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 IPC is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body it was given and several such relevant factors.
15. Considering the factual background in the case at hand it will be appropriate to convict the appellant under Section 304 Part II IPC, instead of Section 302 IPC as has been done by the trial court and affirmed by the High Court. Custodial sentence of eight years would meet the ends of justice. The appeal is allowed to the aforesaid extent."
21. In the instant case, the occurrence had taken place at the spur of the moment. Only the appellant Gurmukh Singh inflicted a single lathi blow. The other accused have not indulged in any overt act. There was no intention or pre-
meditation in the mind of the appellant to inflict such injuries to the deceased as were likely to cause death in the ordinary course of nature. On consideration of the entire evidence including the medical evidence, we are clearly of the view that the conviction of the appellant cannot be sustained under section 302 IPC, but the appropriate section under which the appellant ought to be convicted is section 304 Part II IPC.
22. Before we part with the case, we would like to clearly observe that we are not laying down that in no case of single blow or injury, the accused cannot be convicted under section 302 IPC. In cases of single injury, the facts and circumstances of each case has to be taken into consideration before arriving at the conclusion whether the accused should be appropriately convicted under section 302 IPC or under section 304 Part II IPC.
23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:
a) Motive or previous enmity;Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 17
b) Whether the incident had taken place on the spur of the moment;
c) The intention/knowledge of the accused while inflicting the blow or injury;
d) Whether the death ensued instantaneously or the victim died after several days;
e) The gravity, dimension and nature of injury;
f) The age and general health condition of the accused;
g) Whether the injury was caused without pre-meditation in a sudden fight;
h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
i) The criminal background and adverse history of the accused;
j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
k) Number of other criminal cases pending against the accused;
l) Incident occurred within the family members or close relations;
m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.
24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 18 proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.
25. When we apply the settled principle of law which has been enumerated in the aforementioned cases, the conviction of the appellant under section 302 I.P.C. cannot be sustained. In our considered view, the accused appellant ought to have been convicted under section 304 Part II I.P.C. instead of under section 302 I.P.C.'' (30) Looking to the factual scenario as well as evidence of above material witnesses, it is not in dispute that on the alleged date of incident i.e. 08-06-2020, appellant came to his house in drunken state and beat her, tell his wife to work, earn money and give it to him. Appellant always suspects character of his wife alleging that his wife used to go with other persons Satyaveer of village, Ulfat and people of her maternal home without informing him for many days and used to stay with them and because of this, appellant abused his wife in filthy language and started beating her with kicks and fists and also twisted both fingers of her left hand. Appellant took out a grinding stone (sil) and hit on the right side of forehead of his wife. He beat his wife on both eyes and cheeks with fists and also hit her on her back and waist. The incident happened because appellant felt that deceased should not come in the way of quarrel. On hearing her screams, the deceased, who was sleeping on a cot outside house, came there. On the spur of the moment, appellant took out a knife from house. There was no pre-meditation or pre-concerted plan or malice on the part of appellant. Although appellant stabbed the deceased in the chest with knife, which is a vital part of the body, but there was no intention of appellant to cause death or causing particular injury, which has proved fatal as per medical evidence. Appellant, Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/21/2025 06:12:43 PM 19 at least, could be imputed with a knowledge that he was likely to cause an injury which caused death of deceased. Therefore, the appellant is shown to have committed an offence under Section 304 Part II of IPC.
(31) Accordingly, considering the injuries sustained by wife of appellant in the alleged incident, while maintaining conviction and sentence of appellant under Section 325 of IPC and maintaining the fine amount awarded by the trial Court under Section 302 of IPC, the sentence of life imprisonment is set aside and the instant criminal appeal so far as it relates to present appellant stands allowed in part by setting aside the judgment of conviction and order of sentence dated 02-12-2022 passed by Second Additional Sessions Judge, Ambah, District Morena in Special Case No.1000258 of 2020 and instead, he is convicted under Section 304 Part II of IPC and sentenced to suffer rigorous imprisonment of five years. The fine amount as awarded by learned Trial Court stands maintained. In default of payment of fine, accused shall have to go further imprisonment awarded by trial Court.
(32) As far as the contention of appellant, at this stage, that appellant has already suffered incarceration of more than four years and six months is concerned, on completion of aforesaid period of five years jail sentence and on verifying the same by the jail authorities concerned, the appellant shall be released, if not required in any other case.
(33) A copy of this judgment along-with record be sent to concerned Trial Court for necessary information, so also a copy of this judgment be forwarded to concerned Jail Authority for information and compliance.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 4/21/2025
06:12:43 PM