Madhya Pradesh High Court
Madan Lal(Deleted) vs The State Of Madhya Pradesh on 30 May, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR-IV
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
CRIMINAL APPEAL No. 853 of 2014
BETWEEN:-
1. MADAN LAL (DELETED) S/O SHRI MOHAN LAL
GADRI, AGED-65 YEARS, R/O VILLAGE
DADONIA THANA, JAMNER GUNA (MADHYA
PRADESH)
2. SHESHNARAYAN S/O MADAN LAL, AGED-28
YEARS, R/O VILLAGE DADONIA THANA
JAMNER, GUNA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ASHOK JAIN - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH INCHARGE
POLICE STATION AARAKSHI KENDRA JAMNER
GUNA (MADHYA PRADESH)
.....RESPONDENT
( BY SHRI A.K.NIRANKARI - GOVERNMENT ADVOCATE)
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Reserved on 03/05/2024
Delivered on 30/05/2024
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This petition coming on for hearing this day, Hon'ble Justice
Milind Ramesh Phadke passed the following:
ORDER
1. The present Criminal Appeal u/S 374 of CrPC has been 2 preferred by aforesaid appellant, challenging the judgment and order dated 18.07.2014 passed by learned Second Additional Sessions Judge, District Guna (MP) in Sessions Trial No.341 of 2012, whereby appellant has been convicted under Section 302/34 of IPC and sentenced to undergo Life Imprisonment with fine of Rs.500/- each with default stipulations.
2. The case of prosecution in nutshell is that one Hemraj (deceased) and complainant Kamlesh when were returning to their village Dadoniya after selling milk at about 8 AM, near Jamner Pulia that the present appellant Sheshnarayan along with one Madanlal (deceased), Sarjan and Brahma armed with farsi, lohangi etc in continuation of some previous enmity in relation a dispute regarding certain land, stopped them and started hurling filthy abuses and when the deceased and complainant tried to stop them that the present appellant Sheshnarayan gave a farsi blow on the head of deceased Hemraj and Madanlal (since deceased) inflicted lohangi blow to the deceased and all the four after threatening them for life went away. Deceased Hemraj was taken to Primary Health Center, Maqsoodangarh, but as his condition 3 was serious, he was referred to Guna hospital, but after reaching the hospital at Guna he succumbed to his injuries and died.
3. On the basis of the information given by complainant Kamlesh, Dehati Nalisi exhibit P/15 was recorded and on the basis of Dehati Nalisi offence under Sections 307, 294, 323, 506B and 341 of IPC was registered against the present appellant and other co-accused persons.
4. From the spot blood stained soil as well as normal soil were siezed and the statements of the witnesses were recorded. On 01.09.2012 appellant Sheshnarayan and Madanlal (deceased) were arrested vide exhibit P/2 and P/3 respectively and on the basis of their memo exhibit P/4 and P/5 respectively one lohangi from the custody of Madanlal (deceased) and one farsi from the custody of Sheshnarayan were seized. Along with the blood stained soil the farsi, lohangi and one stick(lathi) recovered from the appellant and other co-accused were seized and were sent for examination to FSL, Gwalior vide exhibit P/34 and from the FSL report Exhibit C/1 human blood was found on farsi and lathi (stick). After completion of the investigation challan was filed 4 against the present appellant Sheshnarayan and Madanlal (deceased) in the Court of Raghogarh and so far as other co- accused Sarjan and Brahma were concerned since they were minor challan was submitted before the Juvinile Court. After committal, the matter was sent to the Sessions Court and, thereafter, the appellant and the other co-accused were put to trial.
5. The offences were denied by the present appellant and the co-accused and in their 313 Cr.P.C statements they submitted that the complainant/party wanted to take illegal possession of their land and in pursuance thereof they have wrongly implicated the appellant with the incident and in defence they got examined one Gopaldas and Ramnath Singh.
6. Learned Trial Court framed four issues and recorded statements of 17 prosecution witnesses. After analysing the statements as well as material available on record, learned Trial Court found both the appellant guilty under Section 302/34 of IPC, but exonarated them from the offence under Section 294 and 506 part 2 and convicted them accordingly as mentioned above.
7. Learned counsel for the appellant while assailing the 5 statements of complainant Kamlesh had argued that Dehati Nalisi recorded at his behest doesn't reflect the exact time when it was recorded as the time mentioned is 08/10 Hrs whereas his 161 statement was recorded at 09:30 AM and in both Dehati Nalisi as well as 161 statements, he had stated that at the time of incident he was driving the bicycle and Hemraj was sitting on the back seat, but no where it has come that when deceased was pulled down from the bicycle, he also fell down and sustained injuries, which would had been natural, but not a single injury had been caused to his person, which creates doubt of his presence on the spot. It was further submitted that in Dehati Nalisi Exhibit P/15 and in the 161 statement Exhibit D/2 the complainant Kamlesh has specifically stated that he and deceased after selling the milk at Jamner were returning back to their village Dadoniya, but he in his Court statement has not stated that he was going on the same bicycle rather he had only stated that when they were returning after selling the milk that the present appellant and other co- accused persons had assaulted him.
8. It was further argued that though it could be said that there 6 was motive for the appellant and other co-accused persons to assault the deceased, but the intention of causing homicidal death cannot be presumed from the very act as the injuries which were caused by the present appellant Sheshnarayan was on the head which was not the cause of death of the deceased rather the cause of death was rupture of left lung which ruptured due to the fracture of two ribs and none of the injuries were on the chest which could be attributed to the appellant, as in all total 8 injuries were found by PW-8 Dr.Vinod Chaurasia which were on head, legs and hands.
9. It was further argued that the Dr. Vinod Chaurasia in his cross-examination had submitted that the fracture of the ribs could be due to fall of the deceased on stones and rest of the injuries which were on the body of the deceased were simple in nature, thus, at the most the case of the appellant would fall under the exception of 304 part II.
10. It was further submitted that the version of the eye witnesses and the contradictions in their testimony since are manifestly clear and are not trustworthy, thus, could not have been 7 relied to convict the present appellant, only due to a fact mentioned by the witnesses that there was some previous enmity with regard to certain land between the deceased and the accused persons and in absence of any cojent material it cannot be presumed that there was some previous enmity between them.
11. It was further submitted that complainant Kamlesh PW-9 in his cross-examination in para 6 had specifically stated that with regard to previous enmity between the deceased and accused in relation to certain piece of land is not within his knowledge which itself belies the story of the prosecution that due to enmity between the deceased and accused persons they have assaulted the deceased and has committed his homicidal death.
12. It was further argued that the weapons which has been alleged to be used in the incident are normal articles which the villagers carry along with them in their fields and it cannot be said that there was some pre-mediation of minds between them to have assaulted the deceased and causing his death which makes the present case fall under Section 304 part II of the IPC and it cannot be said to be a murder in terms of Section 300 of IPC attracting 8 conviction therein. It was further submitted that looking to the nature of the injuries caused to the deceased and the number of injuries caused, it could be seen that the appellant and the other co-accused never intended to kill the deceased otherwise the injuries would have been much more in number and also as none of the injuries caused by the appellant had proved to be fatal and had caused death of the deceased, the case of the appellant can very well be covered under the definition of 304 part II of IPC.
13. It was further argued that the case of the appellant can be said to fall under the sub-Section 4 of Section 300 of IPC, as the act of the appellant and the other co-accused persons were not pre-mediated and can be said to have occurred in the heat of passion upon a sudden quarrel as from the very statements of the eye witnesses it is not clear whether the said assault was done immediately when the deceased reached the spot or it was after some altercation between them.
14. It was also argued that the appellant have already under gone actual jail sentence for more than 9 years (to be precise 9 years, 9 months and 16 days) and if the present case is converted 9 to Section 304 part 2 of IPC then the sentence can be reduced to one already under taken by the appellant.
15. On the other hand, learned counsel for the respondents/State has opposed the prayer and had argued that looking to the factual backdrop as has been brought by the prosecution the guilt of the appellant and the other co-accused persons is very well established. It was argued that looking to the deposition of PW-1 Pappu s/o Mathuralal, PW-2 Kamlesh s/o Dhanlal, PW-9 Kamlesh s/o Santosh the act of the appellant causing injury over the head of the deceased by means of farsi which is a vital part of the body, is duly established.
16. It was further argued that the blow given by the appellant was fatal, therefore, the alternative prayer made by the learned counsel for the appellant for conversion of the offence under Section 304 part II cannot be accepted as there were in all three cut wounds which could be attributed to the present appellant and which proves the intention of the appellant.
17. It was further submitted that none of the eye witnesses had turned hostile or can be said that had not supported the case of the 10 prosecution, and only on the basis that there are some contradictions and ommissions in their 161 statements and the Court statements, it cannot be said that the present appellant along with other co-accused persons had not committed homicidal death, thus, it was prayed that no fault can be found in the judgment and the same requires no interference.
18. Heard the counsels for the parties and perused the record.
19. From the MLC total 7 injuries were found on the body of the deceased. Injury no.1, 2, 5 and 6 were inseized wounds caused by means of sharp edged object. Injury no.1 was on left parital reason, no.2 was on left elbow, no.5 was on right forearm below elbow and no.6 was on shin of left leg/left knee and other three injuries were bruises. Except for the injury on the head none of the injuries were on the vital part of the body. The said injuries were coraborated by the injuries as mentioned in the postmortem and proved by PW-8 Dr. Vinod Chaurasia, who had conducted postmortem.
20. From the postmortem report Exhibit P/14 in all 8 injuries have been found on the person of the deceased. The injuries are as 11 follows:
1- ,d flyk gqvk ?kko Fkk tks rhu lseh yack gS tks fd flj ds ck;sa iSjkbVy Hkkx ij fLFkr FkkA 2- ,d flyk gqvk ?kko tks nkfguh vxz Hkqtk ij Fkk ftldh yackbZ nks lseh FkhA 3- ,d flyk gqvk ?kko tks ck;ha Hkqtk ij fLFkr Fkk ftldh yackbZ ,d lseh FkhA 4- cgqr lkjs uhyxw fu'kku Fks ftudk vkdkj dze'k% 3x1 lseh] 2.5 x 1 lseh , 1x 1 lseh FksA 5- nks flys gq, ?kko tks ck;ha Vkax ij fLFkr Fks ftudk vkdkj nks lseh ,oa ,d lseh yacs FksA 6 ,d uhyxw ftldk vkdkj 6 x 1 lseh Fkk tks ck;aha tka?k ij Fkk ykfyek fy;s FkkA 7 ,d uhyxw ftldk vkdkj 3 x 1 lseh tks nk;ha tka?k ij Fkk ykfyek fy;s FkkA 8 rhu fNyu ds fu'kku tks ck;ha Vkax ij fLFkr Fks ftudk vkdkj dze'k% 2.5 x 0.5 lseh] 1.5x 0.5 lseh] 1 x 0.5 lseh FksA jDr tek gqvk FkkA
21. Both the Drs PW-5 Dr. Mukesh Sharma and PW-8 Dr. Vinod Chaurasia who had conducted the MLC and postmortem respectively had in their cross-examination stated that though the injuries caused to the deceased were grievous in nature, but were not fatal which could had caused the death.
22. So far as the statements of PW-5 Dr. Mukesh Sharma is 12 concerned, in para 5 he had stated that injury no.1 i.e. on the head could have been caused if the deceased would have fallen on a pointed stone and the other injuries could be caused, if the deceased would had rolled on the floor for number of times. He has further stated that if the deceased would have got the better treatment, he would have survived. Further from the statements of PW-8 Dr. Vinod Chaurasia who had conducted the postmortem, the cause of death shown is due to rupture of left lung, that may had been caused to the deceased when he was brought down from the cycle. None of the injuries which have been caused by the appellant and the other co-accused persons were the cause for rupture of the left lung. Further PW-8 Dr. Vinod Chaurasia had submitted that except for the injuries in the lungs, none of the injuries caused to the deceased, would had resulted in death.
23. Since the report made to the police was immediate after the incident and even the eye witnesses have supported the case of the prosecution, it could not be said that the appellant and other co- accused persons have not caused injuries to the deceased. Thus, involvement of the accused/appellant in the incident is duly 13 proved and finding of the Court below to that extent cannot be interfered with and is hereby affirmed.
24. With regard to the alternative plea of the counsel for the appellant for conversion of the offence under Section 304 part 2 of IPC as there was no intention of the accused and other co- accused persons to have caused homicidal death of the deceased though they may have knowledge that the injuries caused by them may be fatal is concerned, this Court after perusing the entire statements of the witnesses, the nature of injuries caused to the deceased and the other material available on record finds that as per the prosecution story the appellant and other co-accused persons had stopped the deceased and had thrown him on the ground, but had not immediately started assaulting him. It was after some heated altercations between the appellant and the deceased and when the deceased tried to stop the accused persons from uttering filthy abuses that the appellant and other co-accused persons inflicted farsi, lohangi and stick blows on the deceased. Thus, it can be said that there was no pre-mediation of minds to have committed homicidal death, at the most the act of the present 14 appellant and other co-accused persons can be said to have caused injuries to the person of the deceased and it can also be said that the unfortunate incident took place in heat of passion on spurr of a moment.
25. It is also to be seen that the assault made by the appellant and other co-accused persons by means of farsi, lohangi, sticks, the so called weapons, are readily available with the villagers and they usually carry with them whenever they are in on going to the fields, which also does not reflects that there was any pre- mediation.
26. Even otherwise the medical evidence which has come up on record goes to show that the injuries caused by the appellant and the persons were not sufficient in the ordinary course of nature to have caused death rather injury on the chest which had broken the ribs due to which left lung got ruptured was the cause of the death of the deceased. Apart from the aforesaid medical evidence, the injury which has been caused by the appellant by means of farsi on head, was also not fatal and the cause of death and it is also noteworthy that except for that injury no other injury has been 15 caued by the appellant on any vital part of the body, thus, at the most it can be said that by inflicting such injuries he only had knowledge that it is likely to cause death and in such an event the offence committed by him would come under the purview of culpable homicide not amounting to murder.
27. The Apex Court has laid down the litmus test for determination of the provisions which could be said to have been attracted in such type of cases in the matter of Pulicherla Nagaraju @ Nagaraja Reddy vs State Of A.P reported in 2006 (11) SCC 444 as per the dictum of the Hon'ble Apex Court the following factors need to be examined (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 16 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.
28. The Hon'ble Apex Court in the recent judgment in the case of Anbazhagan vs The State represented by the Inspector of Police in Criminal Appeal No.2043 of 2023 disposed of on 20.07.2023 has defined the context of the true test to be adopted to find the intention or knowledge of the accused in doing the act as under:
60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:-
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be 17 murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC.
Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed.
Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was 18 objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within 19 Clause (4) of Section 300 of the IPC.
Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC.
In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the 20 first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 21 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word 'likely' means probably and it is distinguished from more 'possibly'.
When chances of happening are even 22 or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall.
Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution 23 must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence.
Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, 24 degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder.
The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
25(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, 26 and the offence would be one under Section 304 Part II of the IPC.
29. In the instant case the weapons which has been used in the incident are usually carried by villagers so it cannot be said that they had brought the said weapons from home to have caused the incident. From bare reading of the prosecution story it could also be said that it was after the quarrel between the deceased, the appellant and other co-accused persons that the injuries were inflicted and that too were not fatal except the injury on chest, which broke the ribs, which could be attributed to fall from bicycle, thus, in this backdrop, we are of the considered opinion that the appellant at the best had knowledge that such blows may cause death, but had no intention to cause death.
30. There is another aspect which is to be considered to depict the intention of the appellant as has been raised by the State and in that regard the reference be had of the judgment of the Hon'ble Apex Court in the matter of Atul Thakur vs State Of Himachal Pradesh reported in 2018 (2) SCC 496 in para 8, 9, 12, 13 of the said judgment has been held as under:
27
8. Notably, the evidence on record plainly establishes that a sudden fight took place between the appellant and Hitesh Thakur and in the heat of passion, the appellant assaulted Hitesh Thakur causing serious bodily injuries. There is no shred of evidence, much less even a remote suggestion that the appellant had assaulted Hitesh Thakur with an intention to cause his death. Though the High Court found the appellant guilty, it has not held that the bodily injuries caused by the appellant were with an intention to cause the death of Hitesh Thakur. The High Court overturned the finding recorded by the Trial Court regarding the nature of offence, principally on the ground that the appellant gave repeated knife blows to Hitesh Thakur and Hitesh Thakur could not defend himself as he was unarmed. Thus, the appellant was found guilty of offence punishable under Section 302 of IPC.
9. In other words, the controversy in these appeals boils down to the nature of offence and the sentence to be awarded in that 28 behalf. As aforesaid, the evidence on record, as held by two Courts below and with which finding we are in full agreement, is that the appellant gave six knife blows to Hitesh Thakur on the fateful night to which he succumbed. Thus, it is a case of homicidal death. However, there is no evidence that the injuries inflicted by the appellant were with an intention to cause the murder of Hitesh Thakur. On the other hand, the evidence clearly establishes that the appellant assaulted Hitesh Thakur without any premeditation. The whole incident took place suddenly and, in the heat of passion a sudden quarrel started as Hitesh Thakur, while smoking, blew smoke on the face of the appellant. Resultantly, the appellant got enraged. He told him that he was senior in age and thus should not smoke in his presence much less blow the smoke towards him. Then a sudden physical fight started between them, in which the appellant, in heat of passion, gave six knife blows to Hitesh Thakur on different parts of his body.29
10. XXX
11. XXX
12. Taking overall view of the matter, the facts of the present case warrant invocation of Exception 4 to Section 300 of IPC. For, it is a case of culpable homicide not amounting to murder inasmuch as the incident happened on account of sudden fight between the friends who had gathered for a drink party arranged at the behest of Hitesh Thakur. There was no pre-mediation and the act done by the appellant was in the heat of passion without the appellant taking any undue advantage or acted in a cruel manner. The number of wounds caused by the appellant, it is a well established position, by itself cannot be a decisive factor. The High Court committed manifest error in being influenced by the said fact.
What is relevant is that the occurrence was sudden and not premeditated and the offender acted in the heat of passion. The evidence supports the case of the appellant in this behalf. The fact that the appellant used weapon such as knife, is also not a 30 decisive factor to attract Section 302 of IPC. Neither the use of a knife in the commission of offence nor the factum of multiple injuries given by the appellant would deny the appellant of the benefit of Exception 4.
13. Dealing with a somewhat similar situation, in the case of Surain Singh Vs. State of Punjab 1, this Court has restated the settled legal position about the purport of Exception 4 to Section (2017) 5 SCC 796 300 of IPC. Even in that case, the accused had repeatedly assaulted the deceased with a Kirpan and caused injuries resulting into death. After restating the legal position, the Court converted the offence to one under Section 304 Part-II instead of Section 302 IPC. Following the same legal principle and keeping in mind the factual position as unfolded, the view taken by the Trial Court of convicting the appellant for offence punishable under Section 304 Part-II, is unexceptionable. The Trial Court had observed thus:
"60. The evidence placed on record 31 by the prosecution, reveals that deceased Hitesh and the accused were having cordial relations since long, knowing to each other and were good friends. A party was organized by the deceased in the room of accused Mukesh and deceased himself invited all the accused to attend the party. In this party, large quantity of alcohol was consumed by them and suddenly an altercation took place between deceased Hitesh and accused Atul Thakur as a result of which accused Atul stabbed Hitesh, which resulted into his death......
61. There is no doubt that Hitesh met a homicidal death on the night intervening 27/28.07/2011 at IGMC, Shimla consequent to stab injury inflicted by accused Atul Thakur.
The queston which arises for consideration is whether this action of the accused which caused the death of Hitesh would amount to 32 murder or culpable homicide not amounting to murder. It is an admitted fact that there was no enmity between the deceased and this accused rather they were having cordial relations. The fact that there was a physical fight between the deceased and the accused Atul, cannot be denied because it has come in the evidence of PW-11 Himanshu, PW-12 Manoj Bansal and PW-1 Ashutosh that a physical fight has taken place between them. In these circumstances, this Court will have to examine the prosecution evidence whether the accused Atul had taken an undue advantage or acted in a cruel or inimical manner so as to deprive him of the benefit of exception 4 of Section 300. In fact, the prosecution could not prove any motive for killing the deceased by the accused. The drinking session in the room of the accused Mukesh Thakur was by mutual consent. From 33 these circumstances, it can be held that the incident in question took place in a sudden fight in the heat of possession. The next question which arises for consideration is whether the accused Atul did take an undue advantage of the said fight or acted in a cruel or inimical manner.
Keeping in view the fact that both the deceased and accused had consumed considerable amount of alcohol which is established from the evidence of the prosecution witnesses, it cannot be altogether ruled out that the stab injuries inflicted were not with an intention of taking undue advantage by the accused Atul. It is probable that in an inebriated condition the accused inflicted the injuries because of the physical fight between them. Moreover, keeping in view the nature of the injuries noticed by Dr. Sandeep Kaushik in the MLC Ext. PW-18/A, it is difficult to accept the 34 accused Atul Thakur intended to cause the death of Hitesh or that the injuries were so dangerous that they would in all probability, cause death. Nevertheless, the injuries were quite serious, the accused can surely by credited with the knowledge that if an injury is caused with a knife on the chest or abdomen of a person then this act is likely to cause the death of the victim.
62. Having considered the material on record this Court is of the opinion that the accused Atul Thakur can only be found guilty of an offence punishable under Section 304 Part II, Indian Penal Code."
31. Thus, after considering the over all facts of the case we do not find any shred of evidence, much less even a remote suggestion that the appellant had assaulted the deceased with an intention to cause his death, rather as per the medical evidence the injuries caused to the deceased by the appellant were not fatal in the ordinary course to had caused death, except for the chest 35 injury, which had broken the ribs, which may be due to fall from the bicycle, which goes to show there was intention of the appellant to kill the deceased, the case of culpable homicide amounting to murder is made out against the appellant so as to attract the punishment in terms of Section 302 of IPC.
32. Accordingly, we find substance in the arguments of the learned counsel for the appellant that the conviction deserves to be converted to Section 304 part II of IPC. As the appellant has already undergone the actual jail incarceration of 9 years, 9 months and 16 days and the incident is of the year, 2012, this Court deems it fit to convert to the period of sentence to Ten years R.I. Appellant shall be entitled to benefit of Section 428 Cr.P.C.
33. Resultantly, the impugned judgment dated 18.07.2014 passed by learned Second Additional Sessions Judge, District Guna (MP) in Sessions Trial No.341 of 2012 is altered to the extent where appellant has been held guilty under Section 302 of the IPC, instead the appellant shall be treated to be convicted under Section 304 part II and the jail sentence shall be treated to be one already undergone. If presence of appellant in custody is 36 not required in any other matter, he be released forthwith.
34. The appeal is partly allowed to the extended period above.
35. CC as per rules (Rajendra Kumar IV) (Milind Ramesh Phadke) Judge Judge chandni/- 30/05/2024 30/05/2024 CHANDNI NARWARIYA Digitally signed by CHANDNI NARWARIYA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=4a0af498d89b2d94b5abcc1b4614d98feabd8b78228e0ec6e ab9a0bd4e622c09, postalCode=474001, st=Madhya Pradesh, serialNumber=8C306C586AAA43D19976F07886865F6FAC4A246EEE6 BCCD256ACDFCE3DCF944F, cn=CHANDNI NARWARIYA Date: 2024.06.01 14:15:37 +05'30'