Kamal S/o Kailash vs State of Madhya Pradesh

All these three appeals are arising from the common judgment dated 05/08/2006 passed in S.T. No. 06/2005 by Additional Sessions Judge, Narsinghgarh, therefore, they are heard together and are being decided by this common judgment.

Out of these 3 appellants, appellant- Dashrath is convicted for the offence under Section 302 of the IPC, appellant-Kamal is convicted for the offence under Section 302/34 of the IPC and appellant-Rukmani Bai is convicted for offence under Section 302 read with 109 of the IPC. They all are awarded Life Imprisonment with fine of Rs. 5,000/- each. In default of payment of fine; 1 year additional R.I. is also awarded to them.

The prosecution case in brief is that on 26/11/2004, somebody informed the complainant- Jagdish of village Mawasa that his cousin Radheshyam is lying near well of Devchand Dhakad, situated at Badli of Shankakrpura in injured condition and his motorcycle is also lying there.

The complainant rushed to the spot and saw injuries on the head of Radheshyam caused by Pharsa and he was unconscious. The complainant, his uncle Bane Singh, Shankarlal, Parvat Singh and Ummed Singh took him to the hospital by Marshal Jeep.

As Radheshyam regained consciousness, he revealed that he was coming back after dropping his sister at Village- Berasiya. On the way, near well of Devchand Dhakad, appellants Dashrath and Kamal met him. They were standing with their motorcycle and with intent to kill him, Dashrath gave a Pharsa blow on the back side of his head, due to which he fell down from his motorcycle and became unconscious.

Dr. Mahendra Gupta (PW/12) examined Radheshyam at Narsinghgarh Hospital, where he was first admitted and submitted report Ex. P/14.

He also recorded his dying declaration Ex. P/15 in the presence of Dr. Mustfa Raza PW/19. He referred him to Hamidia Hospital, Bhopal instead he was admitted to Suditi Hospital, Narsinghgarh by his relatives, where during the treatment he died on 28/11/2004 i.e. after two days of the incident. Dr. Anil Garg PW/17, Surgeon, Suditi Hospital referred the case for autopsy to Hamidiya Hospital, Bhopal.

After receiving the dead body of Radheshyam, the authorities of Hamidiya Hospital, Bhopal, intimated to the Police-Station-Kohefiza, Bhopal, where Merg Ex. P/21 was registered. In the mean time, the complainant- Jagdish lodged Dehati Nalsi (Ex.P/1) at Police Station-Narsinghgarh.

Thereafter, on the basis of Merg intimation, the Police- Station Narsinghgarh registered a crime Ex. P/17, collected blood stained and plain soil from the spot vide Ex. P/2, prepared spot map Ex. P/3, prepared memo of corpse Ex. P/5 & P/6 and obtained report Ex. P/13, seized blood stained clothes of the deceased, vide Ex. P/16, interrogated appellant/accused-Dashrath and recorded his statement Ex. P/8 and seized an axe from his possession (Ex. P/9), sent the seized articles to FSL and obtained report (Ex. P/19). The police arrested all the accused persons and after completion of investigation filed charge-sheet against them.

The appellants were charged as stated above. They abjured their guilt. After considering the evidence, the learned trial Court held that the offence was proved and punished the appellants as stated in para 2 above.

All the appellants have preferred separate appeals almost on similar grounds. The appeals are preferred mainly on the grounds that judgment and order of the trial Court is contrary to law and facts available on record. The learned trial Court committed error in not considering the material contradictions and omissions appeared in the statements of prosecution witnesses and also in discarding defence version. The appellants have falsely been implicated, therefore, they prayed that the impugned judgment and order be set-aside and they be acquitted.

Learned Public Prosecutor has supported the judgment and order by submitting that there are clear allegations that Dashrath had committed the

crime. Witnesses Jagdish and Bane Singh in their statement; clearly deposed that the deceased revealed before them that Dashrath gave a Pharsa blow on back side of his head, due to which he fell down from his motorcycle and became unconscious. Dr. Mahendra Gupta and Dr. Mustafa Raza has stated that Dr. Gupta recorded dying declaration of the deceased in the presence of Dr. Raza (P.W.19). According to them; the deceased had name the appellant Dashrath as assailant in his dying declaration. Axe used in the crime is also recovered from possession of the appellant- Dashrath. The prosecution has established that Rukmani Bai was having illicit relations with the appellant- Dashrath and deceased was objecting the same, therefore, she hatched a conspiracy with other coaccused/ appellants for committing the murder of deceased and in connivance with them, they committed the crime. Accordingly, learned trial Court has rightly found them guilty for the alleged offence and awarded them punishment. Therefore, all these appeals deserve to be dismissed.

We have considered rival contentions of the parties and have perused the record.

It is not disputed by the learned counsel for the appellants that on the date, time and place of the incident the deceased had sustained injury on his head and during treatment he died on 28/11/2014, at Suditi Hospital, Narsighgarh and his death was homicidal; therefore, without discussing in detail the evidence brought on record in this regard, we uphold the findings of the learned trial Court to the effect.

Now, first we consider the evidence produced by the prosecution against appellant- Rukmanibai. Shankarlal S/o Banshilal (P.W.7) and Kailash (P.W. 8), have been examined by the prosecution to prove involvement of Rukmanibai in the crime. Kailash had stated that at the floor-mill (Ata Chakki), he heard that Rukmanibai was asking Dashrath to kill Radheshyam. He has also stated that accused- Dashrath used to visit Rukmani Bai. Shankarlal (PW/7) has deposed that when he was returning from the Pan Shop after eating tobacco, he saw that Dashrath was standing near the house of Rukmani Bai. No other evidence is available against Rukmani Bai. Thus, Shankar has stated nothing against Rukmanibai. He has been declared hostile by the prosecution, but nothing could be extracted from his cross examination by the learned Public Prosecutor. No details could be given by Kailash (PW/8) and he has never disclosed this fact to anybody before the incident. Therefore, his statement cannot be relied upon. Ghisalal (PW/9), who is father of the deceased has stated that appellant Dashrath used to visit Rukamanibai.

Shop of the deceased was opposite to the house of the appellant Rukmanibai, therefore, Radheshayam knew that Dashrath frequently visited Rukmanibai. But this statement alone is not sufficient to connect Rukmanibai to the offence. No other prosecution witness has stated anything against Rukmani Bai and any role played by her in the alleged incident, therefore, statements of Shankarlal (PW/7), Kailash (PW/8) or Ghisalal (PW/9) cannot form the basis for conviction of appellant- Rukmanibai.

Against appellant- Kamal, Munshilal (PW/5), who is said to be an eye witness, has stated that at the time of incident Kamal was also present with co-accused-Dashrath and they both have stopped the deceased, while he was coming back by his motorcycle and Kamal instigated Dashrath to kill the deceased. Jagdish (PW/1) has stated that after regaining consciousness, the deceased revealed that on the date of the incident when he was returning back after dropping his sister, Kamal and Dashrath met him and threatened him as to why he was unnecessary interfering in the matters of others and threatened to kill him on this issue. Bane Singh (PW/3) has stated that in his presence after the deceased regained consciousness, he revealed before his father Ghisiya that Dashrath and Kamal had struck him. In his statement before the Court, father of the deceased Ghisiya has stated that the deceased had revealed before him that Dashrath and Kamal had beaten him.

On the contrary, Devchand (PW/4), who claimed to be an eye witness has not stated that Kamal was present at the time of the incident. Dr. Gupta, who has recorded dying declaration, has not stated that the deceased ever named Kamal as assailant. In the dying declaration also name of Kamal is not mentioned as assailant. Shankar Lal S/o Kashiram (PW/6) has also stated that Jadish has mention only Dashrath's name before him.

Shankar Lal S/o Bansilal (PW/7) has also not named Kamal. He has been declared hostile by the prosecution. Munshilal has admitted that after the incident he ran away from the spot and never disclosed the incident before anybody. He further admitted that after reaching the village, he revealed the incident only to Bane Singh but Bane Singh has not stated in his statement that Munshilal (PW/5) has ever revealed anything before

him. Thus, his statement becomes suspicious. Therefore statements of Jgdish, Bane Singh, Munshilal and Ghisiya, who are related and interested witnesses, are not trustworthy. In view of the aforesaid, Kamal also cannot be convicted for the offence.

As far as appellant-Dashrath is concerned, though he has preferred this appeal on various grounds, but learned counsel appearing on his behalf submitted that she does not want to press merits of the case. She submits that it is a case of only single blow and there is no motive behind this crime and there is nothing on record to show preparation or premeditation on part of the accused, therefore, his case does not fall within purview of Section 302 of IPC instead it falls within the purview of Section 304 part II of the IPC; therefore, he may be held guilty for the offence under Section 304(II) of IPC and may be sentenced for the period already undergone as he has already completed more than 13 years of imprisonment.

We have considered the contention.

In view of the submissions of the learned counsel, 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.

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:-

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.

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, ..........

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:-

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.

The Hon'ble Supreme Court held in Arjun and Anr. Vs. State of Chhattisgarh AIR 2017 SC 1150 that:

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.

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:

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 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..............

Further in the case of Arumugam v. State, Represented by Inspector of Police, Tamil 3Nadu, (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:

.......

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".

The Hon'ble Supreme Court has laid down in 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:

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.

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:

We have no doubt about the complicity of all the accused in the homicide of Sarfraj. A-1 attacked the 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.

The Hon'ble Apex Court laid down in Madhavan and Ors. Vs. State of Tamil Nadu AIR 2017 SC 3847 that:

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. Taking oral view of the matter, therefore, we find force in the argument of the appellants that the quantum of sentence is excessive.

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:

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 selfadhered 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 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.

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.

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:- ........

In this case, the deceased had gone to drop his sister and after dropping her, he was on his way back home, met the assailant by chance as there is no evidence that his returned schedule was known to anyone. Thus, the incident cannot be said to be premeditated. The case of the prosecution regarding motive behind the incident could not be established. Offence against co-accused persons has not found proved. Only single injury was found on the deceased. The appellant did not repeat any blow even when the deceased fell down and he was having full opportunity, but he did not take undue advantage of the situation. After striking once, he fled from the spot. It does not appear that the accused was having any intention to kill the deceased. No evidence is there to show any preparation for the offence the appellant is charged with. The appellant has no criminal antecedent. Therefore, we are also in agreement with the learned counsel that the case of the appellant qualifies all parameters. Therefore, the act of the appellant Dashrath does not fall under the purview of the offence punishable under Section 302 of IPC but falls under the purview offence punishable under Section 304 Part-II of IPC.

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 of Dashrath 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 Dashrath guilty for committing the offence under Section 304 part II of IPC instead of the offence under Section 302 of IPC.

The appellant is in jail since 07.12.2004 and he has served more than 13 years of imprisonment. 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 for the period of jail sentence already undergone.

Consequently, the appeal of Kamal and Rukmanibai is allowed. Their conviction and sentence is hereby set-aside. They both are acquitted from the charges under section 302/34 and 302 read with 109 IPC respectively. Their bail and personal bonds are discharged.

The appeal of Dashrath is partly allowed. The conviction of the appellant Dashrath is converted to one under Sections 304 Part II IPC and the sentence is reduced to the period already undergone. The appellant is hereby ordered to be set at liberty forthwith, if he is not required to be detained in connection with any other case.

Order of the trial Court regarding disposal of property stands confirmed.