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IN THE HIGH COURT OF MADHYA PRADESH
Sujoy Paul and Shailendra Shukla,JJ.
Sonu Jain v. State of M. P.
Criminal AppealsNo. 474 of 2016, 616 of 2016 and 644 of
2016 (Indore): against the common judgment dated 23.2.2016 passed by the X Sessions Judge, Ujjain in Sessions Trial No.55614; Decided on 6.4.2021
(1) Penal Code, 1860 -- Ss. 302 and 304 Pt. II -- single blow -- cannot be said that accused cannot be convicted u/s.302 -- facts and circumstances of each case have to be taken into consideration before arriving at conclusion whether accused should be convicted u/s.302 or u/s.304 Part II -- relevant factors on strength of which said decision is required to be taken -- laid down by apex Court -- these factors illustrative and not exhaustive -- other relevant factors can also be taken into consideration while granting appropriate sentence to accused. (2009) 15 SCC 635 followed. (1981) 3 SCC 331, (1990) Supp. SCC 682, (1992) Supp. 3 SCC 21, (1993) Supp. 1 SCC 554 and (1997) SCC (Cri) 408 referred to. [Paras 18 & 19]
(2) Penal Code, 1860 -- Ss. 300, 302 and 304 Pt. II -- no previous enmity -- hot altercation -- after almost half hour, appellants rushed back to place of quarrel -- one appellant, with aid of other appellants, gave single knife blow to deceased -- gravity,dimension and nature of injury shows that knife was a deadly weapon -- otherwise rib could not have been cut and injury could not have been so deep as to reach upper portion of right lung -- injurysufficient in ordinary course of nature to cause death -- blow after almost half hour from altercation not covered by any Exception mentioned u/s.300 -- crime of murder cannot be reduced to mans laughter -- apart from this, appellants definitely acted in cruel manner -- deprives them from taking shelter of Exception 4 -- totally immaterial whether appellant gave single blow or multiple blows. (2017) 3 SCC 247, 2019 (4) JLJ 1 (SC) and 2018 (3) MPLJ Criminal 23 distinguished. [Paras 21, 23, 27 & 28]
(3) Penal Code, 1860 -- S. 300 Exception 1 -- doctrine of provocation -- provocationis external stimulus which can result into loss of self-control -- such provocation and resulted reaction needs to be measured from attended circumstances -- provocation must be such as will upsetnot merely hasty, hot tempered and hyper sensitive person, but also person with calm nature and ordinary sense -- protection extended by Exceptionis to normal person acting normally in given situation. (2010) 6 SCC 457 followed. 1941 (3) All ER 272 (HL) referred to. [Para 24]
(4) Penal Code, 1860 -- Ss. 85 and 86 -- intoxication -- burden on defence to establish/prove that degree of intoxication was such that they could not prevent themselves from committing act in question -- defence has not discharged burden to show that incapacity of appellants because of intoxication is of that degree where they canclaim any benefit -- it cannot be forgotten that drinking is purely their own act -- they cannot be permitted to take advantage of their own wrong. AIR 1956 SC 488 and (2006) 13 SCC 116 followed. AIR 1960 MP 242, (1836) 173 ER 131, (1838) 173 ER 610 and (1849) 4 Cox CC 55 relied on. [Paras 32 to 37]
(5) Evidence Act, 1872 -- S. 60 -- Criminal P. C., 1973 -- S. 154 -- omission and improvement -- mentioned in dehatinalishi and FIR that appellants caught hold of deceased -- Court statement that they caught hold of hand of deceased -- every omission is not contradiction -- minor details which are not indicative in FIR, lateron elaboratedin Court -- do not justify criticism that case originally presented has been abandoned to be substituted by another view -- variation in dehatinalishi/FIR and Courtstatements not so grave as to make prosecution evidence brittle and untrustworthy. (2019) 12 SCC 326, (2003) 10 SCC 414, (2003) 11 SCC 367 and (2010) 13 SCC 657 followed. [Paras 39 & 41]
¼1½ naM lafgrk] 1860 & èkkjk 302 rFkk 304 Òkx 2 & ,dek= çgkj & ;g ugha dgk tk ldrk fd vfÒ;qDr èkkjk 302 d¢ vèkhu n¨"kfl) ugha fd;k tk ldrk & bl fu"d"kZ ij igqapus d¢ iwoZ fd vfÒ;qDr d¨ èkkjk 302 d¢ vèkhu n¨"kfl) fd;k tkuk pkfg, ;k èkkjk 304 Òkx&2 d¢ vèkhu] çR;sd ekeys d¢ rF;¨a v©j ifjfLFkfr;¨a ij fopkj fd;k tkuk g¨rk gS & mDr fofu'p; ftu lqlaxr dkjd¨a d¢ cy ij fy;k tkuk g¨rk gS & lo¨ZPp U;k;ky; }kjk vfèkdfFkr & og dkjd n`"Vkar ek=] ifjiw.kZ ugha & vfÒ;qDr d¨ ;Fk¨fpr naMkns'k nsrs le; vU; lqlaxr dkjd¨a ij Òh fopkj fd;k tk ldrk gSA ¼2009½ 15 ,l lh lh 635 vuqlfjrA ¼1981½ 3 ,l lh lh 331] ¼1990½ lIyhŒ ,l lh lh 682] ¼1992½ lIyhŒ 3 ,l lh lh 21] ¼1993½ lIyhŒ 1 ,l lh lh 554 rFkk ¼1997½ ,l lh lh fufnZ"VA ¼iSjk 18 ,oa 19½
¼2½ naM lafgrk] 1860 & èkkjk 300] 302 rFkk 304 Òkx 2 & iwoZ ls 'k=qrk ugha & mÙksftr dgk&lquh & yxÒx vkèkk ÄaVs i'pkr~] vihykFkÊx.k >xM+s d¢ LFky ij >V ls y©Vs & ,d vihykFkÊ us] vU; vihykFkÊx.k dh lgk;rk ls] e`rd ij pkdw ls ,d çgkj fd;k & {kfr dh xaÒhjrk] vk;ke v©j çÑfr ls nf'kZr fd pkdw çk.kÄkrd gfFk;kj Fkk & vU;Fkk ilyh ugha dVrh v©j {kfr bruh xgjh ugha g¨rh fd nkfgus Q¢aQM+s d¢ Åijh Òkx rd igqap ldrh & {kfr çÑfr d¢ lkekU; vuqØe esa e`R;q dkfjr djus d¢ fy, i;kZIr & dgk&lquh ls yxÒx vkèkk ÄaVs i'pkr fd;k x;k çgkj èkkjk 300 esa mfYyf[kr fdlh Òh viokn ls vkPNkfnr ugha & gR;k dk vijkèk ÄVk dj ekuo oèk ugha fd;k tk ldrk & bld¢ vfrfjDr] vihykFkÊx.k us fuf'pr :i ls Øwjrkiw.kZ O;ogkj fd;k & og viokn 4 dh 'kj.k ysus ls oafpr & iw.kZr% rRoghu fd viykFkÊ us ek= ,d çgkj fd;k ;k vusdkusd çgkj fd,A ¼2017½ 3 ,l lh lh 247] 2019 ¼4½ ts ,y ts 1 ¼mPpre U;k;ky;½ rFkk 2018 ¼3½ ,e ih ,y ts fØfeuy 23 çÒsfnrA ¼iSjk 21] 23] 27 ,oa 28½
¼3½ naM lafgrk] 1860 & èkkjk 300 viokn 1 & çd¨iu dk fl)kar & çd¨iu og ckg~; mn~nhiu gS t¨ vkRe&fua=.k [k¨us esa ifj.kr g¨ ldrk gS & ,sls çd¨iu v©j Qfyr çfrfØ;k d¨ vkuq"kafxd ifjfLFkfr;¨a ls ekik tkuk vko';d & çd¨iu ,slk g¨uk vko';d ftlls vkrqj] بèkh v©j vfrlaosnu'khy O;fDr gh ugha] vfirq 'kkar LoÒko v©j lkekU; foosd dk O;fDr Òh mf}Xu g¨ & viokn dk laj{k.k fuèkkZfjr ifjfLFkfr esa lkekU;r% O;ogkj djus okys lkekU; O;fDr d¨ fn;k x;k gSA ¼2010½ 6 ,l lh lh 457 vuqlfjrA 1941 ¼3½ vkWy à vkj 272 ¼,p ,y½ fufnZ"VA ¼iSjk 24½
¼4½ naM lafgrk] 1860 & èkkjk 85 rFkk 86 & eÙkrk & ;g LFkkfir@lkfcr djus dk Òkj çfrj{kki{k ij g¨rk gS fd eÙkrk bl ifjek.k dh Fkh fd og Lo;a d¨ ç'uxr dk;Z djus ls j¨d ugha ldrs Fks & çfrj{kki{k us ;g nf'kZr djus d¢ Òkj dk fuoZgu ugha fd;k fd eÙkrk d¢ dkj.k vihykFkÊx.k dh vleFkZrk bl ifjek.k dh Fkh fd og fdlh Qk;ns dk nkok dj ldsa & ;g foLe`r ugha fd;k tk ldrk fd e|iku fo'kq)r% mudk ÑR; Fkk & mUgsa vius gh n¨"k dk Qk;nk mBkus ugha fn;k tk ldrkA , vkb vkj 1956 ,l lh 488 rFkk ¼2006½ 13 ,l lh lh 116 vuqlfjrA , vkb vkj 1960 ,e ih 242] ¼1836½ 173 Ã vkj 131] ¼1838½ 173 Ã vkj 610 rFkk ¼1849½ 4 ØkWDl lh lh 55 voyafcrA ¼iSjk 32 ls 37½
¼5½ lk{; vfèkfu;e] 1872 & èkkjk 60 & naM çfØ;k lafgrk] 1973 & èkkjk 154 & y¨i rFkk lqèkkj & nsgkrh ukfy'kh v©j çFke bfÙkyk fji¨VZ esa mfYyf[kr fd vihykFkÊx.k us e`rd d¨ idM+k & U;k;ky;hu dFku fd mUg¨aus e`rd dk gkFk idM+k & çR;sd y¨i foj¨èkkÒklh ugha g¨rk & x©.k ckjhfd;ka t¨ çFke bfÙkyk fji¨VZ esa crkà ugha xÃ] ckn esa U;k;ky; esa foLrkj ls crkà xà & ;g vky¨puk U;k;¨fpr ugha fd ,d vU; n`f"Vd¨.k ls çfrLFkkfir fd, tkus d¢ fy, ewyr% çLrqr fd, x, i{kdFku dk R;kx dj fn;k x;k & nsgkrh ukfy'kh@çFke bfÙkyk fji¨VZ v©j U;k;ky;hu dFku esa varj bruk xaÒhj ugha fd vfÒ;¨tu lk{; Òaxqj v©j vfo'okluh; g¨ tk,A ¼2003½ 11 ,l lh lh 367 rFkk ¼2010½ 13 ,l lh lh 657 vuqlfjrA ¼iSjk 39 ,oa 41½
JUDGMENT
Paul, J. -- 1. These criminal appeals filed under section 374 of the Cr.P.C are directed against the common judgment passed by learned 10th Sessions Judge, Ujjain in Sessions Trial No.556/14 decided on 23.2.2016.
2. The appellants are held guilty for the offence under section 302/34 and sentenced to undergo life imprisonment with fine of Rs.5000/- and in default of payment of fine, they shall further undergo five months RI. They are also held guilty for the offence under section 294 of IPC and sentenced to undergo three months RI with fine of Rs.1000/- and in default of payment of fine, they shall further undergo one month RI.
3. As per prosecution story, a premises (Ahata) is situated at Nayi Sadak, Ujjain wherein liquor was being served to the customers. Deceased Kishore used to sit on the counter of said “Ahata”. On 16.8.2014 at around 7 PM, appellants Santosh, Jiwan and Sonu visited the Ahata and ordered liquor and other food items. Akash (PW4) served the food and liquor to them. Since all the accused persons were frequent visitors of Ahata, Vinod was acquainted with them. After consuming liquor and finishing the food, appellants approached Kishore Panchal, who was manning the counter. A dispute arose regarding payment because of which altercation took place between Santosh and deceased Kishore. Kishore slapped Santosh. All the accused persons left the place by using filthy language and saying that Kishore will face dire consequences. After 25-30 minutes, all the appellants visited the same Ahata and started using abusive language for Kishore Panchal. Jiwan and Sonu caught hold of Kishore and asked Santosh to assault him. In furtherance thereof, Santosh took out a knife and assaulted Kishore at his right side of the chest. Because of said attack, Kishore fell down. Vinod (PW-3) and Akash (PW-4) witnessed the incident and immediately approached Kishore. All the appellants fled away. Kishore was immediately taken to Govt. Hospital, Ujjain. The doctor declared him as dead.
4. In turn, Head Constable Dinesh Saxena was informed about the said incident because of which “Merg intimation” (Ex.P/20) was recorded. SHO Gopal Parmar (PW-10) visited the place of incident. He also visited Civil Hospital, Ujjain. He came to know from Vinod (PW-3) about the details of incident which were reduced in writing in the shape of “Dehati Nalishi” (Ex.P/15). Consequently, Crime No.207/14 in FIR (Ex.P/21) was registered against the appellants.
5. During the investigation, Gopal Parmar (PW-10) prepared the “panchnama” of dead body. Postmortem was conducted. Spot map was prepared. Appellants were arrested. From the spot, bloodstained cotton, plain cotton and an old cycle of Santosh were recovered. The appellants were interrogated and their memorandum statements were recorded. During investigation, the bloodstained knife and clothes were recovered from appellants. In turn, said knife and bloodstained clothes were sent to FSL. Report of FSL was also obtained.
6. After completion of investigation, challan was filed. The matter was ultimately committed to the Court of Additional Sessions Judge for trial.
7. The appellants abjured the guilt. In their statements recorded under section 313 of CrPC they stated that they have been falsely implicated and they are innocent. In support of their stand, Jitendra Lashkari (DW-1) was examined.
8. The Court below framed three issues and after recording the evidence and hearing the arguments, passed the impugned judgment whereby appellants were held guilty for committing offence under sections 302/34 and 294 of IPC.
9. Shri Virendra Sharma, learned counsel for the appellants urged that necessary ingredients for attracting section 302 of IPC are missing against appellant Santosh. To elaborate, it is submitted that there was no previous enmity between appellants and deceased Kishore Panchal. It was deceased, who slapped Santosh because of which said incident had taken place. The size of the knife was 4 & 1/2” onl
The court ruled that a stabbing occurring during a quarrel, influenced by mutual provocation and intoxication, merited a conviction under Section 304-I of the IPC instead of Section 302.
The court ruled that actions taken under grave and sudden provocation can lead to a conviction for culpable homicide not amounting to murder, distinguishing it from murder under Section 302 IPC.
The court established that a lack of premeditation and intent to kill can lead to a conviction under Section 304 IPC instead of Section 302 IPC in cases of sudden provocation.
The main legal point established is that the appellant's actions did not qualify as a sudden provocation under Exception 1 to Section 300 IPC, as the deceased did not provoke the appellant and the ap....
The main legal point established in the judgment is the application of legal provisions and case laws to determine the nature of the offence and the intention of the accused.
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