Madan vs The State of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 15/12/1995 passed in Sessions Trial No. 167/94.

Prosecution story in brief is that on 26/08/1994, deceased and other persons were standing at a gumti. Appellant-Madan came there, thereafter

he told that nobody can touch me. In that event deceased had touched him, thereafter, there were hot talks between them. Then appellant had

taken out gupti and inflicted a blow at the stomach of the deceased. Deceased was taken to the hospital on motor bike and report of incident was

lodged at the police station. On 29/08/1994 in the night deceased was died at the hospital. Police conducted investigation and filed charge-sheet

against the appellant. Appellant abjured his guilt and pleaded innocence. The trial court held appellant guilty for commission of murder and

awarded sentence of life.

Learned counsel for the appellant has submitted that the prosecution witnesses turned hostile. Conviction of the appellant is based on dying

declaration of the deceased which is not reliable. In alternate, learned counsel for the appellant has submitted that incident had occurred all of

sudden, in heat of passion, hence the offence of appellant is covered under exception 4 of Section 300 of IPC and the offence committed by the

appellant would fall under Section 304 Part-I of IPC.

Learned Government Advocate for the State has contended that the appellant was armed with a deadly weapon. He had inflicted blow on vital

part of the body, hence, incident had happened in a planned manner. The trial court has relied on dying declaration of the deceased and the trial

court has rightly convicted the appellant for commission of offence of murder.

It is an admitted fact that conviction of appellant is based on dying declaration of the deceased because most of prosecution witnesses turned

hostile. PW/1 Gopal Pawar deposed that police came on the spot and prepared spot map which is Ex. P/1 I signed the same. I also signed seizure

memo Ex. P/2. PW/2 Manntoo turned hostile. He denied the fact that any quarrel had taken place before him. PW/3 Chhannoo turned hostile. He

also denied the fact that he had given any statement to the Police Ex. P/4. Similarly PW/4 turned hostile. PW/5 turned hostile. He denied the fact

that he had given any statement ""A to A"" to the police Ex. P/6. PW/7 turned hostile. PW/8 turned hostile. PW/9 turned hostile. PW/10 also turned

hostile.

PW/11 Smt. Manni Bai, is the wife of the deceased. She deposed that Harisingh had told me that present appellant had killed the deceased,

thereafter, present appellant met with me near at nala. He told me that I had killed the deceased and he had also inflicted some injuries at me.

PW/12 Dr. P.K. Tiwari deposed that on 26/08/1994 I was posted at P.S.C. Multai. I examined the deceased and I noticed following injuries.

One stab wound size 1 cm. x 1/4 cm. in depth. The injury was caused by penetrating hard object.

I referred the deceased to District Hospital, Betul. Report is Ex. P/12 and I signed the same.

PW/15 Dr. P.S. Thakur who performed postmortem of the deceased. He deposed that I noticed one stab wound in middle of 12th rib size 1

cm.x 1/ 2 cm. which was antemortem injury. There were clotting in liver and left lung. In para 10 of his cross examination he admitted that if proper

treatment was given to the deceased at the time of incident he could not have been saved.

PW/13 M.S. Malviya, who was working as Naib Tehsildar recorded the dying declaration. He deposed that at 5.15 in the evening I received

information and thereafter I went to the hospital and recorded dying declaration of the deceased. At the time of recording dying declaration

nobody was present where deceased was lying on the bed. I recorded dying declaration in question answer form. Deceased told me that appellant

had inflicted a blow of gupti on me. At the time of recording dying declaration, deceased was in a fit mental condition.

In dying declaration is Ex. P/14, it is mentioned that deceased was in fit mental condition to give dying declaration. In the aforesaid dying

declaration, it is mentioned that present appellant-Madan inflicted a blow of gupti on stomach of the deceased. It is further mentioned that there

was no cause for inflicting blow and I do not know that why appellant had inflicted blow. Relevant portion in Hindi reads as under:-

VERNACULAR MATTER OMITTED

Except this evidence there is no other evidence on record. I.O. has not been examined. Dying declaration was recorded by the Naib Tehsildar

Executive Magistrate. He deposed that deceased was in a fit mental condition to give dying declaration. In the dying declaration, deceased has

named present appellant who had inflicted a blow of gupti.

It is well settled principle of law that person can be convicted on the sole evidence of dying declaration if it was properly recorded and relied

on by the courts below for resting the appellant''s conviction and deceased was in a fit state of mind at the time of giving dying declaration it is not

essential that a doctor may give certificate that the patient was in a fit condition as held by the Apex Court in the case of Shama Vs. State of

Haryana (2017) 11 SCC 535. The Apex Court has held as under:-

Dying declaration made by the deceased is admissible in evidence under Section 32(1) of the Evidence Act, 1872. In the absence of any kind

of infirmity or/ and suspicious circumstances surrounding its execution, once it is proved in evidence in accordance with law, it can be relied on for

convicting an accused even in the absence of corroborative evidence but with a rule of prudence that it should be so done with extreme care and

caution. (See Panchdeo Singh V. State of Bihar).

One of the principles which is always kept in mind while examining the dying declaration of the deceased is that ""a man will not meet his maker

with a lie in his mouth"". As aptly said by Mathew Arnold in a very old English case (see lyre LCR in R.v. Woodcock) ""Truth sits on the lips of a

dying man"". This principle is deduced from a well-known Latin Legal maxim ""nemo moriturus Praesumitur Mentire.

Now the next question is that what offence appellant has committed. Doctor who performed autopsy of the deceased PW/15 deposed that he

noticed only one stab wound on the person of the deceased. It was of size 1 cm. x 1/ 2 cm. Doctor PW/12 who examined the deceased initially

also deposed that there was one stab wound 1 cm. x1/4 cm. in depth. The injury was caused by gupti. Prosecution witnesses in their 161

statements deposed that number of persons were standing at the gumti. Madan came there and told that nobody can touch him, at that time

deceased had touched him thereafter, there were hot talks between present appellant-Madan and deceased then Madan had taken out a gupti and

inflicted a blow of gupti. Prosecution relied on the aforesaid statement of the witnesses because the prosecution cross-examined their own

witnesses on the aforesaid statements. Apart from this, deceased himself in his dying declaration stated that he does not know that why appellant

had inflicted blow of gupti at him. The Apex Court in the case of Arjun and another Vs. State of Chhattisgarh, (2017) 3 SCC 247 has held as

under that whether the offence is murder or it would fall under exception 4 of Section 300 of IPC.

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 vs. Union Territory

of Chandigarh (1989) 2 SCC 217, 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 vs. State, Rrepresented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590, 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:-

.......""18. 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 accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events

that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-

meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken ""undue advantage"" or acted in a cruel

manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the

appellants are entitled to the benefit under Section 300 exception (4) IPC.

From the evidence on record, it is clear that in the present case the incident had occurred all of a sudden without premeditation and in the heat

of passion. There was a sudden quarrel, in that event appellant had inflicted one blow of gupti and caused injury. The appellant has not taken any

undue advantage. Hence, in our opinion, there was no motive of the appellant to cause death of the deceased. Consequently the offence committed

by the appellant would fall under Section 304 part I of the IPC. Sentence of the appellant was suspended vide order dated 25/09/2002 by a

Division Bench of this court. He had suffered actual jail sentence of near about 8 years and more than 10 years of sentence including remission,

hence in our opinion, it would be just and proper to award the sentence to the appellant as already undergone.

Consequently, the appeal filed by the appellant is partly allowed. His conviction and sentence awarded by the trial court is hereby set-aside.

The appellant is convicted for commission of offence punishable under Section 304 Part I of IPC and he is awarded sentence as already

undergone. He is on bail his bail bonds are hereby discharged.