Madhya Pradesh High Court
Singhal vs The State Of Madhya Pradesh on 5 January, 2019
Bench: Rohit Arya, Virender Singh
1.
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
Cr. A. No.239 of 2011
Singla vs. The State of M.P.
SPECIAL DIVISION BENCH
HON'BLE SHRI JUSTICE ROHIT ARYA
HON'BLE SHRI JUSTICE VIRENDER SINGH, JJ.
Criminal Appeal No.239 of 2011
Singla
Versus
The State of Madhya Pradesh
-x-x-x-x-x-x-x-x-x-x-x-
Shri Praveen Rawal, learned Counsel for the appellant
(Legal Aid).
Shri Mukesh Kumawat, learned Public Prosecutor for
the respondent/State.
-x-x-x-x-x-x-x-x-x-x-x-
JUDGMENT
( 05/01/2019) Per.:- Justice Virender Singh, J.
1. The appellant has preferred this appeal against his conviction awarded by Special Judge, District--Dhar vide judgment dated 24.12.2010 delivered in Sessions Trial No.138/2010 whereby the learned trial Court has held the appellant guilty for the offence under Section 302 of IPC and sentenced him for life imprisonment.
2. Prosecution case in brief is that on 06.09.2010, at about 4:00 in the evening, the complainant Munna alongwith his wife Naktibai were manuring in their filed of chilly. The deceased Walsingh crossed them and as he reached opposite to the house of Singla (the appellant), he came out stating that as to why is not allowing his wife to come to his house, he picked up a stone and threw on his head. He sustained injury on skull and fell down. Singla again threw a stone and 2. HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.239 of 2011 Singla vs. The State of M.P. caused injury on his head. Blood started oozing out and Singla ran away from the spot. Munna informed some Nagda, Somjya and Malsing about the incident and reported the matter to the police station Silawad which was registered at Crime No.131/10. The police visited on the spot, prepared Punchnama Lash, sent the body for post-mortem with requisitioned, recorded statements of the witnesses, prepared spot map, arrested the accused, seized blood stained and plain soil and after usual investigation, filed charge-sheet.
3. The accused was charged, tried and convicted for the offence under Section 302 of IPC and awarded sentence as stated in para no.1, above.
4. The appellant has preferred this appeal on several ground but during arguments, learned counsel representing him submitted that the appellant does not want to press his appeal on merits. There is no evidence of intention, per- meditation or preparation of the incident on the part of the appellant to cause death of the deceased. Both the parties are belongs to Scheduled Tribes. There is no motive behind the crime. No weapon is used in the incident. He never took any undue advantage of the situation. He is in jail since 07.09.2010 and has completed more than 8 years of imprisonment, therefore, his case does not fall within the purview of Section 302 of IPC instead it falls within the purview of Section 304 Part-II of IPC, therefore, his conviction be altered to one under Section 304 part II and he be awarded punishment for the period already undergone.
5. Learned public prosecutor for the State has opposed the prayer but has not controverted the factual part of the 3. HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.239 of 2011 Singla vs. The State of M.P. submissions of the appellant. He has fairly admitted that the incident took place suddenly in a fit of rage. No deadly weapon is used and the appellant has not taken any undue advantage of the situation.
6. We have considered the contentions of both the parties and have gone through the evidence and documents produced by the prosecution before the trial Court.
7. In view of the submissions of the appellant, first we have a look at the law laid down in the field. In Annamalai Vs. State reported in 2016 CRI.L.J. 2727, the Division Bench of Madras High Court has considered the mitigating circumstances and has held in para-13 of the judgement as under:-
"Now turning to the punishment, the accused is the sole bread winner of the family. He has got three brothers. He has got a big family to take care. He has no bad antecedents. After the occurrence also, it is not reported that he was involved in any other crime. Further, there are lot of chances for reformation. So far as the aggravating circumstances are concerned, there was no premediation for the accused to commit the murder of the deceased. Having regard to these mitigating as well as aggravating circumstances, we are of the view that sentencing the accused to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/- would meet the ends of justice."
8. In Chand Khan Vs. State of M.P. reported in 2006(3) M.P.L.J. 549, the Division Bench of this Court has also converted the conviction of the appellant in attaining facts and circumstances of the case. Para -10 & 11 of the judgment are relevant which reads thus:-
4.HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.239 of 2011 Singla vs. The State of M.P. "10. If the present case is considered in the light of the aforesaid decisions of the Supreme Court, it would show that the appellants caused single injury on the head of the deceased by farsa, which is a sharp edged weapon, but unfortunately Aziz Khan (PW-11) and Ishaq Khan (PW-13) have stated that he gave lathi blow on the head of the deceased. Even after considering this contradictory evidence it has to be taken into consideration that it is a case of single farsa blow inflicted by only appellant Chandkhan and appellant Naseem inflicted only lathi blow on the non-vital part of the body and in the absence of this evidence that the injury no.
(i) was sufficient to cause death in the ordinary course of nature and also looking to the various other circumstances like that the accused as well as the deceased are close relatives and the deceased was a person of criminal background and the incident started because of the abuses made first by the deceased himself, we find that the case will not fall within the purview of section 300, Indian Penal Code but it will fall under section 304 Part II, culpable homicide not amounting to murder.
11. consequently, appeal is partly allowed. Conviction of appellants under section 302/34 Indian Penal Code, is set aside and instead they are convicted under section 304 part II, Indian Penal Code, .......... "
9. The Hon'ble Supreme Court has held in Gurpal Singh v. State of Punjab AIR 2017 SC 471. Para 10 of the judgement reads thus:
"10. However, in the singular facts of the case and noticing in particular, the progression of events culminating in the tragic incident, we are inclined to reduce the sentence awarded to him. Incidentally, the occurrence is of the year 2004 and meanwhile twelve years have elapsed. Further, having regard to the root cause of the incident and the events that sequentially 5. HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.239 of 2011 Singla vs. The State of M.P. unfolded thereafter, we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger so much so that he was deprived of his power of self-control and being drawn in a web of action reflexes, fired at the deceased and the injured, who were within his sight. The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof. Be that as it may, on an overall consideration of the fact situation and also the time lag in between, we are of the view that the conviction of the appellant ought to be moderated to one under Sections 304 Part 1 IPC and 307 IPC. Further, considering the facts of the case in particular, according to us, it would meet the ends of justice, if the sentence for the offences is reduced to the period already undergone. We order accordingly."
10. The Hon'ble Supreme Court held in Arjun and Anr. Vs. State of Chhattisgarh AIR 2017 SC 1150 that:
"19. The point falling for consideration is whether the conviction of the appellants under Section 302 IPC is sustainable. As discussed earlier, the evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred due to a sudden fight which, in our view, falls under exception (4) of Section 300 IPC.
20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. Union Territory of Chandigarh (1989) 2 SCC 217 : (AIR 1989 SC 1094, Para 6), it has been explained as under:
"7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of 6. HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.239 of 2011 Singla vs. The State of M.P. wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.............."
21. Further in the case of Arumugam v. State, Represented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590 : (AIR 2009 SC 331, Para 15), in support of the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:
"9. .......
"18. 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 Penal Code, 1860. 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 had 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'."
11. The Hon'ble Supreme Court has laid down in 7. HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.239 of 2011 Singla vs. The State of M.P. Prabhakar Vithal Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if assault on deceased could be said to be on account of sudden fight without pre-meditation, in heat of passion and upon a sudden quarrel, Conviction of the appellant cannot be sustained under S. 302 and altered to one under Section 304 part-I of IPC. Relevant para 7 of the judgement reads thus:
"7. In the facts and circumstances noted above, there appears merit in the submission advanced by learned counsel for the appellant that in view of Exception 1 or Exception 4 in Section 300 of the IPC the case made out against the appellant is that of culpable homicide not amounting to murder. It would be natural for the family members of juvenile offender Balu on hearing his cries, to rush for his help and when injury on the appellant has also been proved there is sufficient material to infer the reasonable possibility of a grave and sudden provocation. The assault on the deceased, in absence of intention to cause death could be on account of sudden fight without pre-meditation, in the heat of passion and upon a sudden quarrel. We therefore feel persuaded to and do set aside the conviction of the appellant under Section 302 IPC and substitute the same with conviction under Section 304 Part I of the IPC. The certificate of imprisonment available on record discloses that the appellant has by now undergone more than 12 years of actual imprisonment. The aforesaid period, in our estimate is sufficient to meet the ends of justice. Hence the sentence of imprisonment for life is reduced to imprisonment for the period already undergone by the appellant. In view of such modification in the sentence, the appellant is directed to be released from custody forthwith if not required to be kept in custody in connection with any other criminal case. The appeal stands allowed to the aforesaid extent."
12. In Sikandar Ali Vs. State of Maharashtra AIR 2017 SC 2614 the Court altered the conviction u/s 302 IPC to one u/s 304 part-2 IPC in the following circumstances:
"7. We have no doubt about the complicity of all the accused in the homicide of Sarfraj. A-1 attacked the 8. HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.239 of 2011 Singla vs. The State of M.P. deceased with the knife and caused injury on his neck which resulted in his death. The other accused assisted him in committing the crime by holding the hands of the deceased. However, the only question that falls for our consideration is whether the accused are liable to be punished for an offence under Section 302 IPC. After considering the submissions made by the counsel for the Appellants and scrutinising the material on record, we are of the opinion that the accused are not liable to be convicted under Section 302 IPC. We are convinced that there was neither prior concert nor common intention to commit a murder. During the course of their business activity the accused reached the dhaba where the deceased was present. An altercation took place during the discussion they were having behind the dhaba. That led to a sudden fight during which A-1 attacked the deceased with a knife. Exception 4 to Section 300 is applicable to the facts of this case. As we are convinced that the accused are responsible for the death of Sarfraj, we are of the opinion that they are liable for conviction under Section 304 part II of the IPC. We are informed that A-1 has undergone a sentence of seven years and that A-2 to A-4 have undergone four years of imprisonment. We modify the judgment of the High Court converting the conviction of the accused from Section 302 to Section 304 part II of the IPC sentencing them to the period already undergone. They shall be released forthwith."
13. The Hon'ble Apex Court laid down in Madhavan and Ors. Vs. State of Tamil Nadu AIR 2017 SC 3847 that:
"8. Notably, the High Court has not considered the issue of quantum of sentence at all, but mechanically proceeded to affirm the sentence awarded by the Trial Court. From the factual position, which has emerged from the record, it is noticed that there was a pre- existing property dispute between the two families. The incident in question happened all of a sudden without any premeditation after PW1 questioned the appellants about their behaviour. It was a free fight between the two family members. Both sides suffered injuries during the altercation. The fatal injury caused to Periyasamy was by the use of thadi (wooden log) which was easily available on the spot. The appellants, on their own, immediately reported the matter to the local police alleging that the complainant party was the aggressor. No antecedent or involvement in any other criminal case has been reported against the appellants.9.
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.239 of 2011 Singla vs. The State of M.P. Taking oral view of the matter, therefore, we find force in the argument of the appellants that the quantum of sentence is excessive.
9. We may usefully refer to the decision of this Court (one of us, Justice Dipak Misra speaking for the Court) in the case of Gopal Singh v. State of Uttarakhand (2013) 7 SCC 545 : (AIR 2013 SC 3048) enunciated the necessity to adhere to the principle of proportionality in sentencing policy. In paragraphs 18 and 19 of the said decision, the Court observed thus:
"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors 10. HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.239 of 2011 Singla vs. The State of M.P. which we have indicated here-in-before and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment.
19. A Court, while imposing sentence, has to keep in view the various complex matters in mind. To structure a methodology relating to sentencing is difficult to conceive of. The legislature in its wisdom has conferred discretion on the Judge who is guided by certain rational parameters, regard been had to the factual scenario of the case. In certain spheres the legislature has not conferred that discretion and in such circumstances, the discretion is conditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. The special reasons have to rest on real special circumstances. Hence, the duty of Court in such situations becomes a complex one. The same has to be performed with due reverence for Rule of the collective conscience on one hand and the doctrine of proportionality, principle of reformation and other concomitant factors on the other. The task may be onerous but the same has to be done with total empirical rationality sans any kind of personal philosophy or individual experience or any a-priori notion."
10. Considering the above and keeping in mind the facts of the present case, the nature of the crime, subsequent conduct of the appellants, the nature of weapon used and all other attending circumstances and the relevant facts including that no subsequent untoward incident has been reported against the appellants and the mitigating circumstances, we are inclined to modify the sentence period in the following terms:- xxxxxxx.
14. In the case of Ghappo Yadav & Ors. vs. State of M.P. reported as (2003) 3 SCC 528, the Apex Court held that in a heat of passion there must be no time for the passion to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being 11. HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.239 of 2011 Singla vs. The State of M.P. the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 IPC. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite:
"10. .......... 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 Indian Penal Code. 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 a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
"11...........After the injuries were inflicted the injured had fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused-appellants had come prepared and armed for attacking the deceased. ............. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on 12. HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.239 of 2011 Singla vs. The State of M.P. the deceased, but had not acted in a cruel or unusual manner. That being so, Exception 4 to Section 300 IPC is clearly applicable. (emphasis supplied).
15. In the case of Sukbhir Singh v. State of Haryana, reported as (2002) 3 SCC 327, the appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The Apex Court held that the appellant had acted in a cruel and unusual manner. Reversing the view taken by the Apex Court this Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 to Section 300, IPC. In cases where after the injured had fallen down, the appellant-accused did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. Hon'ble the Supreme Court observed:-
"19..........All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, theaccused who was armed with bhala caused injuries at random and thus did not act in a cruel or unusual manner."(Emphasis supplied).
16. In the case of Mahesh v/s. State of M.P. reported as (1996) 10 SCC 668, where the appellant had saulted the deceased in a sudden fight and after giving him one blow he had not caused any further injury to the deceased which fact situation was held by Apex Court to be sufficient to bring the case under Exception 4 to Section 300 of IPC. Apex Court held: -
13.HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.239 of 2011 Singla vs. The State of M.P. "4. ..............Thus, placed as the appellant and the deceased were at the time of the occurrence, it appears to us that the appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heels. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault PW 2 or PW 6 who were also present along with the deceased and who had also requested the appellant not to allow his cattle to graze in the field of PW 1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception 4 to Section 300 IPC is clearly attracted to the case of the appellant and the offence of which the appellant can be said to be guilty would squarely fall under Section 304 (Part I) IPC........."
(Emphasis supplied)."
17. In the case in hand, wife of son of the deceased has come with the appellant, but again she went back to the son of the deceased. The appellant was suspected that deceased has incited her and he was not allowing her to come back with the appellant. On this action, the appellant was annoyed with the deceased on the date of incident. When he saw the deceased crossing his house, suddenly, he got infuriated, took the stone lying there and threw it on the head of the deceased which unfortunately proved fatal for his life. The incident happened all of sudden. The appellant did not take any undue advantage of the situation. It does not appear that he was having any intention to kill the deceased. No evidence is there to show any intention, preparation or premeditation for the offence the appellant is charged with. The appellant has no criminal antecedent. Therefore, we are also agree that the case of the appellant qualifies all parameters i.e. (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner and therefore, his act does not fall under the purview of the offence punishable 14. HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.239 of 2011 Singla vs. The State of M.P. under Section 302 of IPC but falls under the purview offence punishable under Section 304 Part-II of IPC.
18. In view of the aforesaid discussion and also the law laid down by the Hon'ble Supreme Court in Madhavan and Ors. Vs. State of Tamil Nadu, Sikandar Ali Vs. State of Maharashtra, Arjun and Anr. Vs. State of Chhattisgarh and Elavarasan Vs. State supra, the appeal is partly allowed. The judgment passed and sentence awarded by the learned trial Court are set aside to the extent that we hold the appellant guilty for committing the offence under Section 304 part II of IPC instead of the offence under Section 302 of IPC.
19. The appellant is in jail since 07.09.2010 and he has served imprisonment of approximately 8 years and 4 months. Considering the nature of incident and keeping in view the facts and circumstances of the case, in our considered opinion, ends of justice would be served if the appellant is awarded punishment under Section 304(2) of IPC instead of 302 of IPC. Therefore, so far as sentence under Section 302 of IPC is concerned, it is modified and he is awarded sentence under Section 304(2) of IPC for 10 years R.I. alongwith fine of Rs.5,000/-. In default of payment of fine amount he further to undergo 6 months R.I.
20. Order of the trial Court regarding disposal of property stands confirmed.
(Rohit Arya) (Virender Singh)
Judge Judge
amit
Digitally signed by Amit
Kumar
Date: 2019.01.09 18:39:54
+05'30'