Madhya Pradesh High Court
Thawar Singh vs State Of M.P. on 27 June, 2017
1
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(DIVISION BENCH: HON. MR. JUSTICE PRAKASH SHRIVASTAVA
& HON. MR. JUSTICE VED PRAKASH SHARMA)
Criminal Appeal Nos.71/08 & 438/07
Thavar Singh S/o Bhimsingh .... Appellant
Aged 34 Years, Occ. - Agriculturist
R/o - Umariya, Bedpura,
P.S. Rajpur.
Vs.
State of M.P. through P.S. Rajpur,
District - Barwani .... Respondent
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Ms. Seema Sharma, learned counsel for the appellant (as
Amicus Curiae in Criminal Appeal No.438/07).
Shri Mukesh Kumawat, learned counsel for the
respondents/State.
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Whether approved for reporting :
JUDGMENT
(Delivered on 27/6/2017) Per Prakash Shrivastava, J :-
1/ These appeals are directed against the judgment dated 7.2.2007 passed by the District & Sessions Judge, Barwani in Sessions Trial No.50/2006 convicting the appellant for offence under Section 302 of the IPC and sentencing him to imprisonment for life and fine of Rs.3,000/- and default sentence of one year RI.
2/ Two appeals against the same judgment of conviction and sentence by the same accused are not maintainable, hence the Criminal Appeal No.71/2008 filed later in point of time is dismissed.2
3/ The prosecution case is that on 6.4.2006 around 10 P.M. complainant Kashiram was sitting outside his house, when his uncle Chandar Singh came shouting on Bhimsingh that he had killed his goats by giving beans of Khejde (Khejde Ki Phali). Appellant who was sitting in the house of his father Bhimsingh, came out with a Falia in his hand telling Chandar Singh that he was abusing and shouting his father daily, therefore, he would kill him and appellant gave a blow of Falia on Chandar Singh which caused injury on the left side of his neck and Chandar Singh fell down and died on the spot. The eyewitnesses Gulsingh, Dinesh, Anita and Savitri Bai came running and appellant ran away towards the field carrying Falia in his hand.
4/ After investigation Challan was filed and the appellant was charged for commission of offence under Section 302 of the IPC. He had abjured his guilt and the trial took place, in which he has been convicted and sentenced by the impugned order.
5/ Learned counsel for the appellant submits that the doctor has not opined if the death was homicidal or suicidal. She further submits that it is a case of single injury with no premeditation of mind and the incident had taken place in the spur of a moment on account of sudden provocation, therefore, it is a case of culpable homicide not amounting to murder falling in Part 1 or 2 of Section 304 of the IPC. She further submits that the appellant has already remained in custody for considerable long period of time.
6/ Learned counsel for the State has supported the impugned judgment.
7/ Having heard the learned counsel for the parties and on perusal of the record, it is noticed that PW-8 Dr. Deepak 3 had conducted the postmortem of deceased Chandar Singh and had found one cut injury posterolateral with anterior extending which was spread from back side of the neck to posterolateral anterior. The postmortem report is Ex.P/9. The cause of death was cut of neck, spinal cord and excessive haemorrhage. Though PW-8 has not stated in the P.M. report whether the death was homicidal or suicidal but considering the nature of injury and the eyewitnesses account discussed hereinafter, the trial Court has rightly concluded that the death was homicidal.
8/ The FIR Ex.P/1 was promptly lodged by Kashiram after the incident disclosing the details of the incident as also the names of the eyewitnesses Gulsingh, Dinesh, Anita and Savitri Bai. PW-1 Kashiram, one of the eyewitness of the incident, has stated that Chandar Singh was coming from the side of the road abusing Bhimsingh and alleging that he had killed his goats by giving beans of Khejde. Appellant was sitting in the house of his father Bhimsingh and he had given blow with Falia saying that he would kill him, which had caused injury on the left side of the neck of Chandar Singh. The version of other eyewitnesses PW-3 Gulsingh, PW-5 Sheru, PW-6 Dinesh and PW-7 Manjiya is the same, who have duly supported the prosecution case. From the statement of these witnesses it is clear that appellant had caused death of Chandar Singh by causing injury on the neck by means of Falia.
9/ The argument of counsel for the appellant that it is not a case of murder but it is a case of culpable homicide not amounting to murder, needs to be examined in the light of the factual and legal position on record.
10/ The Supreme Court in the matter of Ramanlal and 4 others Vs. State of Haryana reported in 2015(4) Crimes 275 (SC) in a case where the accused had inflicted one Lathi blow on the head of the deceased which was sufficient in the ordinary course to cause death, on finding that the incident took place without any premeditation and in sudden quarrel and fight and injuries upon the deceased were inflicted in heat of passion and appellant did not take any undue advantage or acting in a cruel or unusual manner, held it to be a case falling under Exception 4 of Section 300 IPC, culpable homicide not amounting to murder and convicted the accused under Section 304 Part-1 of the IPC.
11/ In the matter of Abdul Nawaz Vs. State of West Bengal reported in 2012(2) Crimes 289 (SC) in a case where accused had hit the deceased on head with sharp weapon and then pushed him in the sea, it has been held that the act tantamount to commission of culpable homicide but not amounting to murder as the same was committed without any premeditation and in a sudden quarrel in the heat of passion, the sentence was altered from Section 302 to Section 304 Part- 1 of the IPC by holding that the Exception 4 of Section 300 of the IPC is attracted.
12/ In the matter of Kailash Vs. State of M.P. reported in 2006(4) Crimes 351 (SC) in a case where the deceased had suffered a single blow at the hands of the accused/appellant on a sudden provocation and without premeditation, it has been held to be a case falling under Section 304 Part-2 of the IPC.
13/ In the matter of Kesar Singh and Another Vs. State of Haryana reported in 2008 SAR (Criminal) 580 the Supreme Court in a case where a single blow was administered by the reverse side of Kassi (spade) to hit the deceased on his 5 head, while holding that intention to cause bodily injury was proved, has observed that mere fact that single blow was administered does not preclude existence of intention. In that case also the judgment of the High Court convicting the appellant under Section 304 Part-1 of the IPC was upheld.
14/ In the present case PW-1 Kashiram in Para-8 has stated that there was no prior enmity between the appellant and Chandar Singh. PW-10 N.S. Dawar, the Investigating Officer, in para 26 has also admitted that there was no prior report of any enmity between the appellant and Chandar Singh. No other witness has stated about prior enmity. Hence prior to the incident there was no enmity between the appellant and deceased Chandar Singh.
15/ Evidence also indicate that at the time of incident deceased was under the influence of liquor. PW-8 Dr. Deepak who had conducted the postmortem of the deceased has stated that in the stomach of the deceased undigested food was there and smell of alcohol was coming. PW-10 N.S. Dawar, Investigating Officer, has also stated that he had seen the postmortem report of Chandar Singh revealing that Chandar Singh was under the influence of liquor.
16/ All the eyewitnesses have consistently stated that at the time of incident Chandar Singh was abusing Bhimsingh, father of the appellant. Their statement also reveal that appellant was provoked by it and he had given blow of Falia to Chandar Singh.
17/ The eyewitnesses have also stated that at the time of the incident appellant was sitting in the house of his father. None of the witnesses have stated that Chandar Singh had come prepared with Falia to his father's house to attack 6 Chandar Singh.
18/ Considering the aforesaid factual and legal position, it is clear that in the present case there was no previous enmity. The incident took place in a spur of moment on account of sudden provocation by the deceased who was under the influence of liquor and abusing the father of the appellant and also that the appellant had not come to the spot prepared with the weapon Falia but at that time he was sitting in his father's house, I am of the opinion that it is a case clearly falling under Exception 1 of Section 300 of the IPC. Exception 4 is also attracted because it is a case of sudden fight in heat of passion without premeditation. Hence the offence is culpable homicide not amounting to murder. Hence the conviction of the appellant under Section 302 IPC can not be maintained and it is altered to Section 304 Part-1 of the IPC. The appellant has already remained in custody for about 11 years, therefore, the sentence is reduced to the period undergone by him.
19/ The appeal is allowed to the extent indicated above. Appellant is in jail. The learned trial Court is directed to release the appellant Thavar Singh forthwith on deposit of fine amount, if he is not wanted in any other criminal case.
20/ Office is directed to send a copy of this judgment along with the record of the trial Court, immediately to the trial Court for its compliance.
(Prakash Shrivastava) (Ved Prakash Sharma)
Judge Judge
Trilok.