Madhya Pradesh High Court
Bhartu @ Bhart vs The State Of Madhya Pradesh on 28 February, 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 28th February, 2025
CRIMINAL APPEAL No. 640 of 2016
BHARTU @ BHARATLAL
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Ashok Jain and Ms. Nikita Jain- learned counsel for appellant.
Shri Deependra Singh Kushwah- learned Additional Advocate General for
respondent-State.
JUDGMENT
Per:Justice Hirdesh :-
Being dissatisfied with the judgment of conviction and order of sentence dated 22/06/2016 passed by Sessions Judge, Sheopur (M.P.) in Sessions Trial No. 100026/2015 whereby, the appellant has been convicted under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.10,000/-, in default to suffer rigorous imprisonment for one and a half years.
(2) As per prosecution case, there was a dispute between complainant- Ramnarayan (P.W.1) and accused over the wall of house and on 28/01/2015 at about 5 PM, son of complainant- Makhan was standing in front of the house of Ramnarayan in Village Raghunathpur. At that time, Bhartu came with sickle in his hand and with intention to Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 2 kill Makhan stabbed him on the left side of chest as a result of which, blood started oozing and due to which, Makhan died on spot. At the time of incident, Satyendra (P.W.2) and Chaturbhuj (P.W.3) witnessed the incident.
(3) Ramanarayan (P.W.1) along with Satyendra (P.W.2) and Chaturbhuj (P.W.3) took deceased- Makhan to the police station in jeep and reported the incident. ASI-
Satish Kumar Dubey (P.W.7) of Police Station Raghunathpur, District Sheopur recorded Merg No. 01/2015 vide Ex.P.2 under Section 174 of Cr.P.C. FIR vide Ex.P.1-C in Crime No. 03/2015 was registered for offence punishable under Section 302 of IPC. Matter was investigated. Spot map vide Ex.P4 was prepared. Panchnama of dead body of deceased was prepared, postmortem of deceased- Makhan was conducted. Seizure memo vide Ex.P.5 of blood stained soil was prepared and relevant seizures were made. After completion of investigation and other formalities, police filed Final Report/charge-sheet before the competent Court of criminal jurisdiction.
(4) The Trial Court framed charges. Appellant abjured his guilt and pleaded complete innocence. During trial, prosecution in order to prove its case, examined as many as 7 witnesses. Accused, in order to lead his evidence, examined Dr. A.K.Garg (D.W.1) and Kailash (D.W.2).
(5) After conclusion of trial, appreciating the prosecution evidence and exhibited documents available on record, learned Trial Court convicted the appellant for commission of offence punishable under Section 302 of IPC and sentenced him accordingly with fine, as stated in Para 1 of this judgment.
(6) It is submitted on behalf of appellant that learned Trial Court committed an error in passing the impugned judgment of conviction and order of sentence against the appellant, which is contrary to oral and documentary evidence available on record. Evidence of Satyendra (P.W.2) does not support the medical evidence regarding Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 3 injuries sustained by deceased Makhan on the basis of postmortem report conducted by Dr. Pradeep Kumar (P.W.6), who opined that there was no injury found on the lungs and heart of deceased. There is discrepancy between postmortem report and the Court statement of Dr. Pradeep Kumar (P.W.6) regarding the injuries to the internal organs of deceased Makhan.
(7) It is further contended on behalf of appellant that although the police seized a sickle and blood-stained soil from the place of incident and the same was sent for examination to the FSL, but mere presence of human blood on the so-called seized sickle can not be considered to be a weapon used in the alleged incident, unless blood group of deceased is found on the seized sickle. Learned Trial Court has convicted appellant only on the basis of circumstantial evidence.
(8) It is further contended on behalf of appellant that there is no independent witness of the incident and only on the basis of statement of relative witnesses of deceased, without properly evaluating their evidence, the learned Trial Court has wrongly convicted the present appellant. Although Spot Map (Ex.P6) was prepared by the Investigating Officer Satish Kumar (P.W.7) in the presence of father of the deceased Ramnarayan (P.W.1), who is allegedly to be an eye-witness of the incident, but there is inconsistency and contradiction in the evidence of such witness.
(9) It is further contended on behalf of appellant that appellant had no intention to cause the alleged injury which was likely to cause death of deceased and appellant had inflicted only a single blow of sickle on the chest of deceased causing his death, therefore, the conviction of appellant under Section 302 of IPC be converted to one under Section 304 Part II of IPC.
(10) 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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 4 instant appeal.
(11) On the other hand, Counsel for State supported the impugned judgment of conviction and order of sentence. It is submitted that there is no infirmity or illegality in the impugned judgment of conviction and order of sentence. The learned Trial Court after evaluating the oral and documentary evidence as well as medical evidence available on record, has rightly convicted present appellant and sentenced him for the alleged offence. The findings arrived at by learned Trial Court do not require any interference by this Court. Hence, prayed for dismissal of this appeal.
(12) Heard counsel for parties at length and perused the record.
(13) The first question for consideration is that whether deceased Makhan died a homicidal death or not ?
(14) Dr. Pradip Kumar (PW-6), who was posted as Medical Officer at Community Health Centre, Vijaypur on 28-01-2015 deposed that on the said date, the dead body of deceased Makhan was brought from Police Station Raghunathpur by Constable Rahul Sharma for postmortem at 08:15 pm, but due to night, postmortem could not be conducted on that day. Next day i.e. 29-01-2015, he conducted postmortem of the deceased at 09:30 in the morning and found following external injuries on the person of deceased:-
''The deceased was wearing a white shirt, black vest, pants and underwear. Both eyes were open, the mouth was closed, rigor mortis were present throughout the body. A cut wound was found on the lest chest, extending from the upper left chest down to the axilla. The wound measured 11cm x 4 cm, penetrating the depth of the muscle, the lungs, and the heart, and blood was oozing from the wound. No other visible injuries were present on the body.'' (15) On internal examination, the following injuries were found on the body of Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 5 deceased:-
'' Undigested food was found in the stomach and small intestine of the deceased, and stool and gases were found in the large intestine. All other internal organs of the deceased were normal.'' (16) Dr. Pradip Kumar opined that the death of deceased was homicidal in nature to be caused by excessive internal bleeding. The chest injury was found on the deceased ruptured blood vessels. Death of the deceased was within 24 hours of postmortem examination. Postmortem report is Ex.P10.
(17) Dr. Pradip Kumar in his cross-examination, although admitted that he could not mention blood-stains on the clothes of deceased in postmortem report, but he deposed that chest injury on the deceased was oblique in shape, running from top to bottom and an incised wound holds special significance compared to other injuries. The chest injury started from the left axilla and went towards the right side of chest. Dr. Pradip Kumar denied that he wrote location of injury incorrectly. The incised wound found on the body of deceased could have been inflicted from the front or the side. Blood was oozing from the injuries of deceased because heart and lungs were ruptured. No symptom of disease was found.
(18) Dr. Pradip Kumar in his cross-examination further deposed that deep injuries found on organs which were ruptured. It is incorrect to say that there was no internal injury i.e. organs, lungs and heart of deceased. He cannot say whether injuries found on the deceased were inverted or everted. He cannot say whether there was any cut mark on the shirt worn on the upper part of chest injury he found. He is unable to say whether it was appropriate to seal clothes of deceased because there were no cut marks from a sharp object or blood stain on the clothes of deceased. He cannot say what kind of sharp weapon caused cut injury on the body of deceased. Police did not send any weapon to him for inquiry, therefore, he cannot say what kind of sharp weapon it was.Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 6
He cannot give a definite opinion as to whether injury found on the body of deceased is likely to have been inflicted from front. He did not measure depth of injury in the heart and only stated the width of injury was 4 cm. He in his cross-examination further deposed that the injury was depth and it is incorrect to say that cut injury found on the body of deceased was superficial.
(19) On behalf of appellant, Dr.A.K.Garg, who was examined as DW-2 regarding review of the postmortem of deceased Makhan (Ex.P10) in his evidence deposed that Doctor, who conducted postmortem found a wound going from left sternal end from left axilla to right, measuring 11x4 cm and reaching depth of lungs and heart and this wound is described as deep to muscle, but internal examination found no injuries to heart and lungs of deceased. Dr. Garg in Para 3 of his cross-examination deposed that considering type of wound during postmortem of deceased, it is possible that deceased died as a result of blood loss and shock.
(20) From the aforesaid medical evidence, it appears that there may be minor variations, but it does not material in the present case and fatal to the prosecution case, as it was found proved that death of deceased was homicidal in nature to be caused by excessive internal bleeding.
(21) The next question for consideration is that whether accused-appellant assaulted deceased Makhan by means of sickle due to which, the deceased succumbed to injuries?
(22) Ramnarayan (PW-1) father of deceased Makhan, in Para 1 of his examination- in-chief deposed that on the date of incident i.e. 28-01-2015 around 05:00 in the evening, he was at his home. His son- deceased was standing in front of the house. Accused-appellant came and caught hold of his neck from behind with one hand and in front, assaulted him with a sickle with intention to kill, as a result of which, the sickle Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 7 hit his son on the left side of chest and blood started oozing. His son fell down and died on spot.
(23) Satendra (PW-2) in Para 1 of his examination-in-chief deposed that on the date of incident around 05:00 in the evening, he was coming home from market. As soon as he reached near his house, Makhan was found standing in front of his house and at the same time, accused came with a sickle in his hand and assaulted Makhan with sickle with intention to kill him on the left side of chest causing wound and bleeding and Makhan died on spot. This witness further deposed that Ramnarayan was at his house at that time. He, Ramnarayan and Chaturbhaj witnessed the incident. After the incident, they put the body of Makhan in a vehicle and brought it to Police Station Raghunathpur, where report was lodged by Ramnarayan. Testimony of said witness stands rebutted.
(24) Chaturbhuj (PW-3) who is elder brother of deceased Makhan, in Para 1 of his examination-in-chief deposed that on the date of incident around 05:00 in the evening, he was standing outside his house. Makhan was standing in front of his house and came with a sickle and assaulted his brother Makhan on the left side of chest, as a result of which blood started oozing. His brother Makhan fell on the ground and died there. This witness in Para 5 of his cross-examination deposed that three hours before incident, Makhan and accused Bhartu had a quarrel over the wall of the house and he did not tell police during recording his statement that accused Bhartu had abused Makhan three hours before the incident. Ramnarayan, did not tell him that accused and Makhan had a fight three hours before the incident and said that the wife of deceased Makhan had told him about this. It is incorrect to say that there was no quarrel between accused and Makhan three hours before the incident.
(25) Wife of deceased-Rammurti (PW-5) in Para 1 of her examination-in-chief deposed that on the date of incident around 05:00 pm, her husband Makhan was Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 8 standing outside the house in front of door. She and her father-in-law Ramnarayan were also sitting at the door of house and her elder brother-in-law Chaturbhuj was also standing outside the house. Accused Bhartu alias Bharat came with a sickle and assaulted her husband Makhan on the left side of chest causing a wound as a result of which blood started oozing and then, her husband fell on the ground. This witness further deposed that accused committed murder of her husband over the wall dispute.
(26) Investigating Officer-Satish Kumar Dubey (PW-7) in Para 3 of his examination-in-chief deposed that on the same date, he had recorded statements of witnesses Ramnarayan and Satendra regarding the incident. He arrested accused in front of witnesses and prepared arrest memo Ex.P7. On the basis of memorandum of accused under Section 27 of the Evidence Act, sickle was recovered from tad (top of room) in the presence of seizure witnesses Narendra (PW-4) and Puspraj.
(27) So far as argument on behalf of appellant that prosecution witnesses Ramnarayan (PW-1), Satendra (PW-2), Chaturbhuj (PW-3) and Rammurti (PW-5) are all family members of the deceased Makhan and in absence of any independent witness, the evidence of interested relatives of deceased cannot be relied upon, is concerned, it cannot be said that an adverse inference should be drawn against the prosecution for not presenting independent witnesses. The statements of aforesaid witnesses do not reveal any material omissions or contradictions regarding the incident. It is settled principle of law that if the evidence of a relative or interested witnesses is completely credible and trustworthy, it cannot be discarded merely on the ground that the witness is a relative or interested witness. Closest relatives of the deceased would not want to save the real culprit and implicate an innocent person, they would want the real culprit, who murdered their family member to be punished. Therefore, the defence of appellant on this point is not acceptable.
(28) So, in view of the aforesaid discussion, in the considered opinion of this Court, Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 9 it is proved from the prosecution evidence that the appellant-accused had assaulted deceased Makhan by means of sickle due to which, deceased died.
(29) Learned Counsel for the appellant further argued that the accused had no intention to cause the alleged injury that was likely to cause death of the deceased and the appellant had inflicted only a single blow of sickle on the chest of deceased causing his death, therefore, the conviction of appellant under Section 302 of IPC be converted to one under Section 304 Part II IPC.
(30) Provision regarding punishment for culpable homicide not amount to murder under Section 304 of IPC reads 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.
(31) The Hon'ble Apex Court in the case of Gurmukh Singh vs. State of Haryana (2009) 15 SCC 635 in detail has discussed the factors which are required to be taken into consideration before awarding appropriate sentence to the 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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 10 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:
(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.
13. Section 304 IPC reads as under:
"304. Punishment for culpable homicide not amounting to murder.- 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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 11 death, or to cause such bodily injury as is likely to cause death."
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 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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 12 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. SCC 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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 13 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 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'.
14. 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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 14 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;
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;Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 15
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, 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.
(32) Reverting to the factual matrix in hand, as noted above, it stands proved that because of injury sustained by deceased caused by appellant-accused, the deceased died on spot. However, in the light of the law laid down by the Hon'ble Apex Court in the Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 16 above cited case and having regard to the facts and circumstances of the case, briefly enumerated above, particularly manner in which, it appears that accused had not acted with intention that it was likely to cause death of deceased although the injury caused by appellant to the deceased was found proved fatal. Admittedly, on perusal of evidence of relative witnesses of the deceased, it appears that although there was a dispute over trivial issue in regard to wall of the house between appellant and deceased, but there is no allegation that before the date of occurrence, there was any premeditation or pre- concerted plan. Further, from the evidence of prosecution witnesses, it does not appear that appellant has caused any repeated blows to the deceased. If he would have intended to kill the deceased, he must have inflicted repeated blows to the deceased. At the most, the evidence available on record indicates that case of accused falls within the offence punishable under Section 304 Part II of IPC. Therefore, this Court instead of convicting accused under Section 302 of IPC, this Court finds it apposite to convict him under Section 304 Part II of IPC.
(33) As regards sentence, the appellant accused has already suffered sentence of ten years, therefore, it would be sufficient to impose sentence on accused as already undergone by him i.e. 10 years by maintaining the fine amount of Rs.10,000/- as awarded by learned Trial Court and in default of payment of fine, a further rigorous imprisonment of one and a half years.
(34) Accordingly, the instant criminal appeal so far as it relates to present appellant stands allowed in part by setting aside the the judgment of conviction and order of sentence dated 22/06/2016 passed by Sessions Judge, Sheopur (M.P.) in Sessions Trial No. 100026/2015 for commission of offence under Section 302 of IPC and instead, he is convicted under Section 304 Part II of IPC and sentenced to the period already undergone by him i.e. 10 years. The fine amount of Rs.10,000/- as awarded by learned Trial Court stands maintained. In default of payment of fine, accused shall have to undergo further rigorous imprisonment of one and a half years. The accused is reported Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 07-Mar-25 3:32:04 PM 17 to be in jail. After verifying aforesaid period of incarceration, the concerned Jail Authority is directed to release appellant- accused immediately, if not required in any other case.
(35) 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: 07-Mar-25
3:32:04 PM