Madhya Pradesh High Court
Bhavsingh vs The State Of Madhya Pradesh on 11 January, 2024
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 11 th OF JANUARY, 2024
CRIMINAL APPEAL No. 1354 of 2016
BETWEEN:-
BHAVSINGH S/O SOMJI BHIL, AGED ABOUT 45 YEARS,
OCCUPATION: NOT MENTION VILLAGE AMBAMAL
BHILKHEDI, TEH. SARDARPUR (MADHYA PRADESH)
.....APPELLANT
( MS. NIDHI BOHARA-ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THRU. P.S. SARDARPUR, DISTT. DHAR
(MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI AMIT RAWAL- GOVERNMENT ADVOCATE)
This appeal coming on for judgment this day, Justice Vivek Rusia
passed the following:
JUDGMENT
Appellant has filed the present criminal appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (herein after referred to as the Code) challenging the judgment of conviction and order of sentence dated 27.11.2015 passed by learned Additional Sessions Judge, Sardarpur, (M.P.) in Sessions Trial No.186 of 2011, whereby he has been convicted for offence under Section 302 of Indian Penal Code, 1860 (herein after referred to as IPC) for committing murder of his wife Jogdibai on 12.04.2011 and sentenced to undergo rigorous 2 imprisonment for life and pay a fine of Rs.1,000/-; and in default of payment of fine, additional rigorous imprisonment for three month.
Facts of the case in short are as under:
2. The son of appellant gave a merg intimation that his mother Jogdibai was in the house. She had dispute with her husband i.e. appellant in respect of some money. His father assaulted her from blunt side of Axe. He sustained the injury and died. The police registered an FIR at Crime No.127/2011 for the offence punishable under Section 302 of IPC. The appellant was arrested. Dead body of deceased was sent for postmortem which was conducted by Dr. Sayyed Noushad Ali (PW-1). As per postmortem report fracture was found on the nose and kidney was found ruptured of the deceased. The dead was homicidal. Police seized the Axe on the disclosure of appellant.
3. After completion of investigation, charge-sheet was filed against the accused/ appellant before the JMFC, Sardarpur, who has committed the case to the Court of Sessions, Sardarpur. The learned Sessions Judge on the basis of allegation made in the charge-sheet framed charge under Section 302 of IPC. The appellant abjured his guilt and pleaded complete innocence.
4. In order to bring home the charges, prosecution examined as many as 9 witnesses and exhibited 17 documents. The appellant has not examined any witness in defence. Learned Sessions Court after considering evidence available on record convicted the appellant for the offence under Section 302 of IPC and sentenced her as mentioned in the impugned judgment.
5. Learned counsel for the appellant submits that the appellant has wrongly been convicted for the offence punishable under Section 302 of IPC.
Had it been intention to kill his wife then he would assaulted her from the sharp side of Axe, therefore, the offence would not travel more than under Section 3 304 (Part-II of IPC). The appellant is in jail more than 10 years which is sufficent for the offence punishable under Section 304(Part-II of IPC). In support of her contention, learned counsel for the appellant placed reliance over the judgment passed in cases of Gurpal Singh v. State of Punjab, AIR 2017 SC 471 and Hardev Bhanji Joshi vs State Of Gujarat reported in AIR 1993 SC 297.
6. Learned Government Advocate opposes the aforesaid prayer by submitting that the deceased sustained injuries by means of Axe. He had an intention to kill the deceased wife, therefore, he has rightly been convicted under Section 302 of IPC, hence no interference is called for.
Heard learned counsel for the parties and perused the record.
7. We may very briefly advert to the material facts necessary to appreciate this submission. According to the learned counsel, the appellant the deceased and appellant are wife and husband. On the fateful day, the appellant demanding money for marriage for their daughter from his wife which she lend her brother, because of the sudden provocation he gave blows to the deceased and due to which she died. He had no intention to kill her wife because he used the blunt side of the axe. Had there been an intention to kill her, he would have used the sharp side of Axe. He is in jail since last more than 10 years, therefore, the sentence be reduced from life to 10 years or the period already undergone whichever is lesser.
8. Since the appellant is not challenging the findings, therefore, we are not inclined to interfere with the said finding but we are convinced with the argument raised by the learned counsel for the appellant that it is a case of an offence punishable under Section 304 Part-II because the appellant had no 4 intention to kill his wife as he used the blunt side of the Axe. The Axe was already there in the house which was used for causing the injury. There was no pre-planned murder of the deceased by the appellant and the unfortunate incident took place due to sudden provocation, therefore, in our considered opinion the act of the appellant falls under the purview of Section 304 Part-II of IPC instead of Section 302 of IPC.
9. The Hon'ble Supreme Court in a case of Gurpal Singh v. State of Punjab, AIR 2017 SC 471 has altered the conviction from Section 302 to 304 Part-1 on the following circumstances. Para 10 of the judgment 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 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 has laid down the law in the case of 5 Prabhakar Vithal Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if the assault on deceased could be said to be on account of the sudden fight without premeditation, 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 judgment 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 premeditation, 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."
11. In case of Hardev Bhanji Joshi vs State Of Gujarat reported in AIR 1993 SC 297 has held as under-
65. Even, according to P.W. 2, A-2 dealt only one blow. The nature of the injury shows that the sharp edge of the axe was not used, he whole thing happened in a sudden manner. Under these circumstances Clause I of Section 300 I.P.C. is not attracted. If A-2 had the intention to cause death, one would expect him to use the sharp edge of the axe. The very fact that he used the blunt side of the axe shows that he had no intention to. cause the death. Further it is not a premeditated act. Now coming to clause III of Section 300 I.P.C., admittedly he caused only one injury with the blunt side of the axe which unfortunately resulted in fracture of skull bone. Further this happened during the quarrel. Under these circumstances, it is difficult to hold that he intended to cause that particular injury which the Doctor found to be sufficient in the ordinary course of nature to cause death. Under similar circumstances, the courts have held that the offence punishable would be one of culpable homicide as the knowledge that he was likely to cause death by such an act can be attributed to the accused. Accordingly, we set aside the conviction of the appellant under Section 302 I.P.C. and the sentence ofimprisonment for life thereunder. Instead, we convict him under Section 304 Part II and sentence him to five years R.I. He shall surrender and serve out the sentence. The appeal is partly allowed.
12. In view of the above discussion we hereby allow the appeal in part. The appellant is held guilty for the offence under Section 304 Part-II of IPC instead of Section 302 of IPC. Considering the nature of the incident, the relation of the appellant with the deceased and period of custody and other facts and circumstances of the case, we find that the ends of justice would be achieved by awarding sentence of imprisonment already undergone. Hence appellant is held guilty for the offence under Section 304 part-II of IPC and imprisonment for the period already undergone with fine as awarded by the learned trial Court.
713. With the aforesaid, the appeal is partly allowed and disposed of. Record be sent back to the Court concerned. The appellant be immediately released from the jail if he is not required in any other offence.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Praveen
Digitally signed by PRAVEEN
Date: 2024.01.12 14:07:51
+05'30'