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2003 Supreme(MP) 392
2003(2) JLJ 166
(SUPREME COURT)
Shivaraj V. Patil and Arijit Pasayat, JJ.
Ghapoo Yadav and others v. State of M.P.
Cri. Appeal No. 229 of 2003; against the judgment of M.P. High
Court passed in Cri. Appeal No. 718 of 1989; Decided on 17.3.2003.
L.N. Gupta for appellants;
R.P. Gupta with Ms. Kamakshi S. Mehlwal for respondent.
Headnote:(1) Penal Code, 1860 -- Ss. 304 Part I and 302/149 -- accused acting in heat of passion upon a sudden quarrel-- provisions of exception 4 of S. 300 attracted -- offence falls under S. 304 Part I.
Lekhram (PW 2) and Gopal (hereinafter referred to as "the deceased") were sons of Ramlal (PW 1). Accused Ghapoo Yadav is the father of accused Janku, Kewal and Mangal Singh. Accused Sunder is the nephew of accused Ghapoo. The deceased, the witnesses and the accused belonged to the same village and there was land dispute between them. On a request made by Ramlal (PW 1), measurement of the land was done by the Revenue Authority. On the basis of the said measurement, it was found that• land belonging to accused Mangal Singh was in the possession of Ramlal (PW 1) and over the said land, a berry tree existed. Though initially the tree was in possession of Ramlal, after measurement he parted with possession thereof. The said tree was cut by the family members of Ramlal (PW 1) a day prior to the incident for which the deceased had altercation with the accused persons. On the date of incident, i.e., 9.6.1986, there were altercations between the accused persons and the deceased, his brother Lekhram and father Ramlal. Accused Janku enquired from the deceased as to why they were cutting the tree. Lekhram responded that it was cut three days prior to the incident as the tree belonged to them and was planted by their family members. The deceased claimed that he had not cut the tree. This led to altercations and scuffles amongst them and the accused person assaulted the deceased, which resulted in a fracture of his leg. When Ramlal and Lekhram went to save him, the accused persons ran towards them threateningly. Ramlal and Lekhram fled away from the place of incident, and returned later on with the other villagers. They took the deceased, who was then• gasping for breath, on a cot to Maharajpur Police Station. Information was given by the deceased to the police at 8.45 p.m. He was sent for treatment and was examined by Dr. R.K. Chaturvedi (PW 3). On examination, he found seven injuries on his body. His dying declaration was recorded. Later on, the deceased took his last breath on 10.6.1986.
[Para 3
Held: In the heat of passion upon a sudden quarrel followed by a fight, the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner. That being so, exception 4 to section 300, IPC is clearly applicable. The fact situation bears great similarity to that in Sukhbir Singh v. State of Haryana [(2002) 3 SCC 327]. The appellants are to be convicted under section 304 Part I, IPC and custodial dial sentence of 10 years and fine as was imposed by the trial Court would meet the ends of justice. (2002) 3 SCC 327 relied on. [Para 11
(2) Penal Code, 1860 -- S. 300, exceptions 1 and 4 -- difference between -- when can exception 4 be invoked.
The fourth exception of section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of exception 1 there is total deprivation of self-control, in case of exception 4, there is only .that. heat of passion which clouds men‘s sober reason and urges them to deeds which they would not otherwise do. There is provocation in exception 4 as in exception 1; but the injury done is not the direct consequence of that provocation. In fact, exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. 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. [Para 10
(3) Penal Code, 1860 -- S. 300, Exception 4 -- word ‘fight‘ -- it takes two to make a fight -- heat of passion requires that there must be no time for passions to cool down -- besides sudden quarrel and absence of premeditation it must also be shown that accused has not taken undue advantage nor acted in cruel or unusual manner. [Para 10
¼1½ naM lafgrk] 1860&Hkkx 304 Hkkx 1 rFkk 302@149&vpkud >xM+k tfur vkos‘k dh rhozrk esa vfHk;qDr }kjk fd;k x;k dk;Z&/kkjk 300 ds viokn 4 ds mica/k vkÑ"V&&vijk/k /kkjk 304 Hkkx 1 ds v/khu vkrk gSA
ys[kjke ¼v lk 2½ rFkk xksiky ¼,rfLeui‘pkr~ ^^e`rd** ds :i esa fufnZ"V½ jkeyky ¼v lk 1½ ds iq= gSaA vfHk;qDr ?kkiw ;kno] vfHk;qDr tudw] dsoy rFkk eaxyflag dk firk gSA vfHk;qDr lqanj] vfHk;qDr ?kkiw dk Hkrhtk gSA e`rd] lk{khx.k rFkk vfHk;qDrx.k ,d gh xzke ds gSa rFkk muds e/; Hkwfe dks ysdj fookn FkkA jkeyky ¼v lk 1½ }kjk fd, x, vuqjks/k ij jktLo çkf/kdkjh }kjk Hkwfe dk ekitks[k fd;k x;kA mDr ekitks[k ds vk/kkj ij ik;k x;k fd eaxyflag dh Hkwfe jkeyky ¼v lk 1½ ds dCts esa Fkh rFkk mDr Hkwfe ij csjh dk o`{k FkkA ;|fi vkjaHk esa o`{k jkeyky ds dCts esa Fkk] rFkkfi ekitks[k ds i‘pkr~ mlus o`{k dk dCtk NksM+ fn;kA ?kVuk ds ,d fnu iwoZ mDr o`{k jkeyky ¼v lk 1½ ds dqVqac ds lnL;ksa us dkV fn;k ftlds dkj.k e`rd dh vfHk;qDr O;fDr;ksa ls dgk&lquh gks xbZA ?kVuk ds fnu vFkkZr~ 9-6-1986 dks vfHk;qDr O;fDr;ksa rFkk e`rd] mlds HkkbZ ys[kjke vkSj firk jkeyky ds e/; dgk&lquh gqbZA vfHk;qDr tudw us e`rd ls iwNk fd og o`{k D;ksa dkV jgs gSaA ys[kjke us mÙkj fn;k fd og ?kVuk ls rhu fnu iwoZ dkV fn;k x;k Fkk D;ksafd o`{k mudk Fkk vkSj mls muds dqVqac ds lnL;ksa }kjk jksfir fd;k x;k FkkA e`rd us nkok fd;k fd mlus o`{k ugha dkVkA blls muesa dgk&lquh vkSj gkFkkikbZ gqbZ rFkk vfHk;qDr O;fDr;ksa us e`rd ij geyk fd;k ftlds ifj.kkeLo:i mlds iSj esa vfLFkHkax gks x;kA tc jkeyky vkSj ys[kkjke mls cpkus x, rks vfHk;qDr O;fDr mudh vksj /kedh Hkjs #[k ls nkSM+sA jkeyky rFkk ys[kjke ?kVukLFky ls Hkkx x, rFkk ckn esa xzke ds vU; yksxksa ds lkFk ykSVsA og e`rd dks] tks rc dfBukbZ ls lk¡l ys jgk Fkk] [kfV;k ij egkjktiqj iqfyl Fkkuk ys x,A e`rd }kjk vijkà 8-45 cts iqfyl dks bfÙkyk nh xbZA mls mipkj ds fy, Hkstk x;k rFkk Mk- vkj-ds prqosnhZ ¼v lk 3½ }kjk mldk ijh{k.k fd;k x;kA ijh{k.k djus ij mUgksaus mlds ‘kjhj ij lkr {kfr;k¡ ikbZA mldk e`R;qdkfyd dFku vfHkfyf[kr fd;k x;kA ckn esa 10-6-1986 dks e`rd us viuh vafre lk¡l yhA ¼iSjk 3½
vfHkfu/kkZfjr % vpkud >xM+k tfur vkos‘k dh rhozrk esa gqbZ yM+kbZ esa vfHk;qDr O;fDr;ksa us e`rd dks {kfr;k¡ dkfjr dh Fkh ijarq Øwjrkiw.kZ ;k vçkf;d jhfr ls dk;Z ugha fd;k FkkA ,sls gksus ds dkj.k] naM lafgrk dh /kkjk 300 dk viokn 4 Li"Vr% ykxw gksrk gSA rF;kR;ed ifjfLFkfr esa lq[kchj flag fo- gfj;k.kk jkT; ¿ ¼2002½ 3 ,l lh lh 327À dh ifjfLFkfr;ksa ls dkQh lekurk gSA vihykFkhZx.k naM lafgrk dh /kkjk 304 Hkkx 1 ds v/khu fl)nks"k Bgjk, tk,¡xs rFkk fopkj.k U;k;ky; }kjk ;Fkk vf/kjksfir 10 o"kZ ds vfHkj{kk naMkns‘k rFkk tqekZus ls U;k; dh iwfrZ gks tk,xhA ¼2002½ 3 ,l lh lh 327 voyafcrA ¿iSjk 11
¼2½ naM lafgrk] 1860&/kkjk 300 viokn 1 rFkk 4&esa Hksn&viokn 4 dk vkJ; dc fy;k tk ldrk gSA
naM lafgrk dh /kkjk 300 ds prqFkZ viokn ls vpkud gqbZ yM+kbZ esa fd, x, ÑR; vkPNkfnr gSA mDr viokn vfHk;kstu ds ,sls ekeys ds ckjs esa gSa tks çFke viokn }kjk vkPNkfnr ugha gSa] ftlds i‘pkr~ viokn 4 fLFkr gksrk rks vf/kd mi;qDr gksrkA ;g viokn mlh fl)kar ij vk/kkfjr gS D;ksafd nksuksa esa iwoZfparu dh vfo|ekurk gSA ijarq tcfd viokn 1 ds ekeys esa vkRefu;a=.k dk iw.kZ oapu gS] viokn 4 ds ekeys esa vkos‘k dh dsoy og rhozrk gS ftlls euq"; dk larqfyr foosd {kh.k gks tkrk gS rFkk mUgsa ,sls dk;ks± ds fy, mÙksftr djrk gS tks og vU;Fkk ugha djrsA viokn 4 es viokn 1 ds leku çdksiu gS( ijarq igq¡pkbZ xbZ {kfr ml çdksiu ls lh/ks ifj.kr ugha gksrhA okLro esa] viokn 4 ,sls ekeyksa ds ckjs esa gSa ftuesa çgkj fd;k x;k] vFkok fookn ds vkjaHk esa çdksiu fd;k x;k vFkok >xM+k fdlh Hkh çdkj vkjaHk gksrs gq, Hkh] nksuksa i{kdkjksa ds i‘pkrorhZ vkpj.k ls mudk nks"k ls leku laca/k gks tkrk gS ^^vpkud yM+kbZ** ls ikjLifjd çdksiu rFkk çR;sd vksj ls çgkj foof{kr gSA rc fd, x, ekuo o/k dk ewy Li"Vr% ,di{kh; çdksiu rd ugha tkrk] u] ,sls ekeyksa esa laiw.kZ nks"k ,d i{k ij yxk;k gh tk ldrk gSA D;ksafd ;fn ,slk gksrk rc tks viokn vf/kd mi;qDr :i ls ykxw gksrk] og viokn 1 gksrkA yM+us ds fy, dksbZ Hkh iwoZrj fopkj&foe‘kZ vFkok fu‘p; ugha gksrkA yM+kbZ vpkud gks tkrh gS ftlds fy, dqN va‘k rd nksuksa i{kdkj nks"kh gksrs gSaA gks ldrk gS fd muesa ls ,d us yM+kbZ vkjaHk dh] ijarq ;fn nwljs i{k us mls vius vkpj.k ls xq#rj ugha cuk;k gksrk rc og ml xaHkhj eksM+ rd ugha igq¡prh tgk¡ og igq¡phA vr% ikjLifjd çdksiu rFkk xq#rj djus okyk vkpj.k jgk rFkk çR;sd yM+us okys dks yxus okys nks"k dk va‘k çHkkftr djuk dfBu gSA viokn 4 dh lgk;rk dk vkJ; fy;k tk ldrk gS ;fn e`R;q ¼d½ iwoZfparu ds fcuk] ¼[k½ vpkud tfur >xM+s esa( ¼x½ vijk/kh }kjk vuqfpr ykHk mBk, fcuk ;k Øwjrkiw.kZ ;k vçkf;d jhfr ls dk;Z fd, fcuk( rFkk ¼?k½ ekjs x, O;fDr ls gqbZ yM+kbZ esa dkfjr gqbZ gksA fdlh ekeys dks viokn 4 ds Hkhrj ykus ds fy, mlesa mfYyf[kr leLr ?kVd ik, tkuk pkfg,A ¿iSjk 10
¼3½ naM lafgrk] 1860&/kkjk 300 viokn 4&‘‘kCn ^yM+kbZ*&yM+kbZ djus ds fy, nks i{k pkfg,&vkos‘k dh rhozrk esa visf{kr gS fd vkos‘k la;fer gksus ds fy, le; ugha gks&vpkud >xM+k gksus vkSj iwoZfparu dh vfo|ekurk ds vfrfjDr ;g Hkh n‘kkZ;k tkuk gksxk fd vfHk;qDr us vuqfpr ykHk ugha mBk;k] u mlus Øwjrkiw.kZ ;k vçkf;d jhfr ls dk;Z gh fd;kA ¿iSjk 10
Pasayat, J. – 1. Leave granted.
2. The appellants (hereinafter referred to as "the accused" by their respective names) question the legality of the judgment of the Madhya Pradesh High Court dated 18.4.2001, upholding their conviction for offences punishable under sections 148 and 302 read with section- 149 of the Indian Penal Code, 1860 (in short "IPC") and the sentence of rigorous imprisonment for three years and fine of Rs. 2,000/- with default stipulation, and imprisonment for life and fine of Rs. 5,000/- with default stipulation respectively.
3. Factual scenario as described by the prosecution is essentially as follows:
Lekhram (PW 2) and Gopal (hereinafter referred to as "the deceased") were sons of Ramlal (PW 1). Accused Ghapoo Yadav is the father of accused Janku, Kewal and Mangal Singh. Accused Sunder is the nephew of accused Ghapoo. The deceased, the witnesses and the accused belonged to the same village and there was land dispute between them. On a request made by Ramlal (PW 1), measurement of the land was done by the Revenue Authority. On the basis of the said measurement, it was found that land belonging to accused Mangal Singh was in the possession of Ramlal (PW 1) and over the said land, a berry tree existed. Though initially the tree was in possession of Ramlal, after measurement he parted with possession thereof. The said tree was cut by the family members of Ramlal (PW 1) a day prior to the incident for which the deceased had altercation with the accused persons. On the date of incident, i.e., 9.6.1986, there were altercations between the accused persons and the deceased, his brother Lekhram and father Ramlal. Accused Janku enquired from the deceased as to why they were cutting the tree. Lekhram responded that it was cut three days prior to the incident as the tree belonged to them and was planted by their family members. The deceased claimed that he had not cut the tree. This led to altercations and scuffles amongst them and the accused person assaulted the deceased, which resulted in a fracture of his leg. When Ramlal and Lekhram went to save him, the accused persons ran towards them threateningly. Ramlal and Lekhram fled away from the place of incident, and returned later on with the other villagers. They took the deceased, who was then gasping for breath, on a cot to Maharajpur. Police Station. Information was given by the deceased to the police at 8.45 p.m. He was sent for treatment and was examined by Dr. R.K. Chaturvedi (PW 3). On examination, he found seven injuries on his body. His dying declaration was recorded. Later on, the deceased took his last breath on 10.6.1986 at 2.00 a.m. Dr. Chaturvedi sent the intimation of death to the police station. Though initially the case was registered under section 307 IPC, the same was convet1ed to one under section 302 IPC. Post-mortem was conducted by Dr. D.N. Adhikari (PW 6). Investigation was undertaken and on completion thereof charge-sheet was filed indicating alleged commission of offences punishable under sections 147, 148 and 302 read with section 149 IPC. The case was committed to the Court of Sessions, and finally charges were framed under sections 148 and 302 read with section 149 IPC.
4. The accused persons pleaded innocence and claimed false implication.
5. On consideration of the evidence on record, the trial Court found that .the accused persons were guilty and accordingly convicted and sentenced them as aforenoted. It is to be noted that apart from the evidence of the two eye-witnesses, reliance was also placed on the dying declaration (Ext P-1) recorded by Dr. Chaturvedi (PW 3). In appeal, the conviction and consequential sentences imposed were upheld.
6. Though, in support of the appeal learned counsel for the appellants attacked the findings recorded, ultimately he confined his arguments to the question relating to the nature of the offence. He further conceded that if the factual findings as recorded are affirmed then sections 148 an
