Devkaran S/O Bondaji Balai vs State Of Madhya Pradesh, Dewas

Shailendra Shukla, J

This appeal under Section 374 of Cr.P.C. has been preferred by the appellant - Devkaran S/o Bondaji Balai against the judgement of conviction and sentence pronounced on 20.11.2013 by the Sessions Judge, Dewas in S.T. No.459/2012, whereby the charge framed against the appellant under Section 302 of IPC has been found proved and has been sentenced to life imprisonment with fine of Rs.50,000/- and in default of payment of fine, to suffer additional 1 year RI.

Brief facts of the case are that deceased Umrao and appellant Devkaran were real brothers and deceased had loaned some money to the appellant and on 19.10.2012, the deceased had gone to the house of the appellant demanding back the money he had loaned. This led to an altercation and appellant took out a knife and stabbed Umrao while other co-accused Shantabai, wife of the appellant and another relative Madhubai caught hold of deceased Umrao. The knife blow on deceased Umrao pierced his left lung and heart resulting in his death on the spot. When the altercation was going on, witness Anita rushed and called Baskanyabai, wife of deceased Umrao from her house who witnesses the incident. Report was then lodged on the same day by Baskanyabai which was registered as Crime No.257/2012. Merg was registered and investigation was initiated. Blood smudged soil was collected, Panchnama of the dead body was carried out and spot map was prepared. Thereafter, dead body was sent for post-mortem examination. Appellant Devkaran was arrested on 22.10.2012 and on the basis of his memorandum, blood stained knife and clothes were seized. These items were sent to FSL, Sagar. The other two co-accused persons namely, Shantabai and Madhubai were also arrested.

After completing necessary investigation, charge-sheet was filed. Learned Trial Court framed charges under Sections 302 and 302/34 of IPC against all the three accused persons namely, Devkaran, Shantabai and Madhubai. The accused persons abjured their guilt and pleaded for trial. The trial was initiated and the prosecution examined eight witnesses in all whereas, three defence witnesses were examined by the appellant. After conclusion of trial, judgement was pronounced on 20. 11.2013 wherein charges against appellant Devkaran was found proved whereas two other co-accused persons were acquitted.

Being aggrieved, appellant Devkaran has filed this present appeal before this Court in which it has been stated that the lower Court has drawn wrong conclusion and unwarranted inferences and has looked over the contradictions appearing in the evidence of prosecution witnesses and defence version has been discarded without any basis and therefore, it is concluded that the appellant be acquitted.

During the course of oral submissions, learned counsel for the appellant has not challenged the conclusion drawn by the Trial Court that Umrao was stabbed by the appellant however, he submits that there was no intention on the part of the appellant to murder the deceased and incident occurred all of a sudden and therefore, appellant could not have been convicted under Section 302 of IPC. He has stated that the circumstances of the case show that deceased had barged into the house of the appellant and had also inflicted injury on Shantabai, wife of the appellant who had to be admitted in the hospital. This fact has been proved by the defence witnesses and therefore, instead of Section 302 of IPC, conviction at best could have been under Section 304 of IPC.

Per contra, learned Public Prosecutor for the State has submitted that the injury has been caused on the vital part of the body resulting the death of deceased therefore, intention to commit murder can be gathered from the circumstances.

The question before this Court is whether in view of the grounds contained in the appeal as also submissions made as aforesaid, the appellant ought not have been convicted under Section 302 of IPC.

As already seen, learned counsel for the appellant has not challenged the fact that appellant had stabbed the deceased resulting in his death.

Dr. Dewan Unni (PW-8) in his deposition states that on 20. 10.2012, he had carried out the post-mortem of the deceased Umrao and had found two injuries on his person, first one is abrasion of size 3cm x 2cm and the second one was stab wound travelling through middle axillary between 7th and 8th rib which had punctured left ventricle of the heart and also incised injury was found on the left lung measuring 3cm x 2cm. It was opinioned that death had occurred due to excessive blood loss resulting in failure of the heart and respiratory system. This injury was sufficient in the ordinary course of nature to cause death. Post-mortem report is Exhibit-P/12-A. Thus, one can see that there was only one injury on the vital part and this injury was sufficient in ordinary course of nature to cause death of deceased. This in itself invites applicability of Section 299 of IPC, which pertains to culpable homicide not amounting to murder. Now it has to be seen whether in the facts and circumstances of the case, case would fall within the exception of Section 300 of IPC or not. For this, the evidence available on record will have to be perused.

Anita (PW-2), who is the daughter of deceased Umarao states that on the date of incident, her father had gone to the house of the appellant and had demanded money which resulted in altercation and she brought her mother over there who was trying to pacify the wife of appellant and at that point of time, Devkaran stabbed her father. Witness Baskanyabai (PW-1) corroborates evidence of Anita (PW-2) and states that she accompanied her daughter Anita when altercation was going on between the appellant and the deceased and then appellant stabbed the deceased resultant to which deceased fell down and died. Report is Exhibit-P/1. In the cross-examination, in para-8, she had stated that prior to stabbing, appellant and deceased had indulged in physical assault with each other. One another witness who has seen the incident is Kavita (PW-3). She also stated to have witnessed the incident. These witnesses have been given the suggestion that the altercation started as deceased entered into the house of the appellant and tried to take liberty with Madhubai, daughter-in-law of the appellant. All the three witnesses have denied these suggestions.

From the perusal of the statements of these witnesses, it appears that it was the deceased Umrao who had entered into the house of the appellant where an altercation took place between them and both of them assaulted each other and in the fit of rage, appellant stabbed the deceased who fell down and died due to the sole injury on his chest.

The appellant has also examined three defence witnesses to prove the defence version that Shantabai was assaulted by the deceased and it was in self defence or due to fit or rage that the deceased was stabbed. Dr. H. S. Rana (DW-3) is the Medical Officer in Dewas and on examination of Shantabai on 19.10.2012 has found two injuries on her person, first one being contusion on chest of size 2cm x 2cm and the second injury being lacerated wound on the right hand measuring 1.5cm x ½cm x ½cm. Report is Exhibit-D/1. Dr. Vinit (DW-2) is another defence witness who states that on 20.10.2012, while this witness was posted at M. Y. Hospital, Shantabai was brought into the surgical department and as per report given to him, she had been assaulted with hard and blunt object leading her to loose consciousness and also vomiting twice. An eye-witness Sarjubai (DW-1) states that on the date of incident, she heard Shantabai crying out loud, lying on floor and blood oozing out of her skull.

Thus, it is found proved that prior to appellant stabbing the deceased, an altercation had taken place in which Shantabai, wife of the appellant got injured, which led to physical assault and thereafter the appellant stabbed the deceased. Such facts invite the application of Exception 4 to Section 300 of IPC, which is reproduced below :-

Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Learned counsel for the appellant in support of this conclusion has furnished some citations, which are K. Ravi Kumar vs. State of Karnataka, (2015) 2 SCC (Cri.) 185, State of Rajasthan vs. Daud Khan, (2016) 1 SCC (Cri.) 793, Maruti @ Nago S/o Keshavram Damahe vs. State of M. P., (2019) 2 MPLJ (Cri.) 252 and Arjun & another vs. State of Chhattisgarh, (2017) 2 SCC (Cri.) 53. He has also submitted that the appellant is in jail and has completed seven years in jail and the period undergone be considered to be adequate punishment looking to the facts and circumstances of the case.

We are thus of the considered opinion that case falls under Exception 4 to Section 300 IPC and thus it is culpable homicide not amounting to murder and therefore, appellant is held liable under Section 304-I of IPC. Thus, conviction of the appellant under Section 302 of IPC is altered to that of Section 304-I of IPC. Now adverting to the quantum of sentence, learned counsel for the appellant submits that the appellant is 66 years of age and has completed seven years behind the jail and the period spent in jail be considered to be adequate punishment.

Considering the facts and circumstances of the case, we are of the considered opinion that the appellant has been found guilty for committing offence under Section 304-I of IPC and he be sentenced to 10 years RI without remission with fine of Rs.10,000/- and in default. to suffer additional 6 months RI.

This appeal consequently stands allowed in part on the question of conviction and quantum of sentence in above terms. The order pertaining to property passed by the Courts below stands affirmed.

A copy of this order be sent to the Trial Court for ensuring compliance.