Pappan vs State Of Madhya Pradesh

Sheel Nagu, J.

This appeal is directed against the judgment of conviction and the order of sentence dated 16/2/2010, rendered by the Court of Sessions Judge,

Gwalior (M.P.) convicting the appellant Pappan for the offence punishable u/S. 302 IPC and sentencing him to undergo imprisonment for life and to

pay fine of Rs. 1000/-, and in default of the payment of fine to further undergo 2 months R.I.

In nut-shell, the case set up by the prosecution in the course of trial was that the house of Kammod Singh, PW-1 (brother of deceased Sanju @

Sanjay) is situated opposite the house of the accused/appellant. On the fateful day i.e., 28/4/2009 at about 1 p.m., PW-1 was sitting in front door of his

house. The motive alleged was that deceased had borrowed Rs. 1,000/- from accused Rajaram and on the issue of return of money, arguments

started between the deceased and accused Rajaram. Appellant Pappan who is son of accused Rajaram was also involved in the argument. During the

course of heated arguments, Jagat Singh, PW-4 brother of the deceased came to the spot when the appellant stabbed the deceased in the stomach

and on other parts of the body. The deceased became unconscious. The incident was witnessed by PWs 1 to 5, namely, Kammod Singh, Panchilal,

Pawan, Jaagat Singh and Guddi. PW-1 who took the deceased in injured state to the police station where on the behest of PW-1 FIR, Ex.P/1 was

lodged by PW-7 Rajendra Singh and Crime No. 279/09 was registered alleging offfence punishable u/S. 307/34 IPC against two Pappan and Rajaram.

The injured (deceased) was taken to the hospital where during treatment he succumbed to the injuries. On being intimated, the police altered the

offence from Sec. 307 to Sec.302 IPC.

After investigation, charge-sheet was submitted. The matter was committed to the Court of Sessions and charges were framed against the

appellant and accused Rajaram for the offence punishable u/S 302/34 IPC.

1 Both the accused pleaded not guilty to the charges and sought trial.

2 The prosecution examined as many as 9 prosecution witnesses, namely, PW-1 Kammod Singh, PW-2 Panchilal, PW-3 Pawan, PW-4 Jagat Singh,

PW-5 Guddi, PW-6 Laxmanprasad, PW-7 Rajendra Singh, PW-8 Deepak Bhargava and PW-9 Dr.N.Shivhare.

3 The accused were called upon to enter on their defence but they did not produce any evidence, in their defence.

4 After hearing the learned counsel for the rival parties and on going through the evidence on record, the trial Court, convicted and sentenced the

appellant Pappan for the offence of murder punishable u/S. 302 IPC but acquitted the other accused Rarajam of the charge of murder but however

accused Rajaram was found guilty of offence punishable u/S. 323 IPC against which it is informed that the said accused Rajaram has not preferred

any appeal.

3.5 Feeling aggrieved by the judgment of conviction and the order of sentence, the instant appeal is filed by the present appellant Pappan.

3.6 We have heard Shri R.K.Sharma, learned Sr. Counsel assisted by Shri V.K.Agrawal, counsel appearing for the appellant and Shri B.M.Patel,

learned Public Prosecutor for the State. We have also gone through the record carefully.

The trial court found the factum of homicidal death having been proved by the ocular evidence of the eye-witnesses PW No. 1 to 5 duly supported

by the postmortem report of the deceased Sanju @ Sanjay vide Ex.P/18, which was proved by PW-9 Dr. N.Shivhare, who opined the injury leading to

rupture of the liver and the heart to be the cause of death.

Learned Sr. counsel for the appellant at the very outset restricted his argument by submitting that looking to the attending facts and evidence where

assault was made by knife blows in the heat of passion arising out of the argument and altercation between the rival parties, the element of intention to

terminate the life of the deceased is missing. Though, learned Sr. counsel for the appellant admits that the evidence on record may indicate presence

of knowledge that the act of the appellant was sufficient to cause death and therefore it is submitted that the offence u/S.302 IPC be watered down to

that u/S. 304 Part-II IPC and since the appellant has already suffered more than 9 years of incarceration he deserves to be released on the sentence

already undergone.

On the contrary, learned Public Prosecutor for the State contended that there was intention on the part of the accused/appellant to cause death of

deceased and the trial Court, rightly recorded conviction and awarded sentence for the offence punishable u/S. 302 IPC. He supported the judgment

of conviction, and the order of sentence of the trial Court and prayed for dismissal of the appeal.

In view of the above, the moot question which arises for consideration is as to whether the offence committed by the appellant would be culpable

homicide amounting to murder punishable u/S. 300 IPC or would be culpable homicide not amounting to murder punishable u/s. 304 Part-II IPC (with

the aid of Exception 4 to Sec. 300 IPC).

1 Let us first reproduce the said provision which reads as under:-

Exception 4 to Section 300 of IPC reads as follows:

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.

Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault.

7.2 In order to bring the offence under this exception IV of Sec. 300 IPC four things shall be proved by the accused:

I. That the act was without premeditation.

II. There was a sudden quarrel

III. In the heat of passion upon a sudden quarrel there was a sudden fight.

IV. Offender did not take undue advantage or acted in a cruel or unusual manner.

7.3 Now turning to the facts of the present case, the evidence on record in shape of ocular and as well as other circumstantial evidence including

medical, reflects that immediately prior to the assault made by the appellant Pappan, heated arguments took place between the deceased on one hand

and accused Rajaram and appellant on the other hand when during the course of this argument, the appellant who happens to be son of the accused

Rajaram interfered and inflicted knife blows upon the deceased. Thus the element of premeditation does not seem to exist in the present case where

the assault has taken place on the spur of the moment in the heat of passion with no prior preparation which can attract Exception IV to Sec. 300

IPC.

7.4 Further more, the evidence on record does not indicate that the appellant had intention of causing such bodily injury as the appellant knew to be

likely to cause death of the deceased.

7.5 The testimony of eye-witnesses namely, Kammod Singh, Panchilal, Pawan, Jaagat Singh and Guddi clearly spell out the assault having taken place

during the course of heated arguments and altercation between the deceased and the son of the appellant on the issue of return of borrowed money.

7.6 However, the witnesses have stated that there were repeated blows which were found by Dr. N.Shivhare, PW-9 to be 5 stab wounds. The

number of 5 stab wounds may ostensibly reflect conduct of unusual or cruel nature which may indicate presence of the element of intention but the

fact remains that all the 5 incised wounds were inflicted in one go without any break and only 2 out of the 5 were inflicted on vital part of the body.

The case of the appellant may not be that of a single bow but all the blows inflicted were in rapid succession in a single transaction impelled by heated

arguments and altercation. Since all the blows had no time gap between them they can safely be viewed as a single transaction for inferring absence

of element of intention.

7.7 More so, looking to the nature of injuries inflicted it does not appear that the appellant intended to inflict such bodily injury which was sufficient in

the ordinary course of nature to cause death.

7.8 In view of the above discussion, it is obvious that the absence of premeditation and the assault having taken place in a sudden quarrel in the heat of

passion entitles the appellant to the benefit of Exception IV to Sec. 300 IPC to hold him guilty under Section 304 Part II instead of for murder.

7.9 In the case of Atul Thakur vs State Of Himachal Pradesh reported in 2018 (2) SCC 496 the Apex Court while dealing with a somewhat similar

situation has observed as under:-

“12. Taking overall view of the matter, the facts of the present case warrant invocation of Exception 4 to Section 300 of IPC. For, it is a case of

culpable homicide not amounting to murder inasmuch as the incident happened on account of sudden fight between the friends who had gathered for a

drink party arranged at the behest of Hitesh Thakur. There was no pre-mediation and the act done by the appellant was in the heat of passion without

the appellant taking any undue advantage or acted in a cruel manner. The number of wounds caused by the appellant, it is a well established position,

by itself cannot be a decisive factor. The High Court committed manifest error in being influenced by the said fact. What is relevant is that the

occurrence was sudden and not premeditated and the offender acted in the heat of passion. The evidence supports the case of the appellant in this

behalf. The fact that the appellant used weapon such as knife, is also not a decisive factor to attract Section 302 of IPC. Neither the use of a knife in

the commission of offence nor the factum of multiple injuries given by the appellant would deny the appellant of the benefit of Exception 4.

Dealing with a somewhat similar situation, in the case of Surain Singh Vs. State of Punjab 1, this Court has restated the settled legal position about

the purport of Exception 4 to Section (2017) 5 SCC 796 300 of IPC. Even in that case, the accused had repeatedly assaulted the deceased with a

Kirpan and caused injuries resulting into death. After restating the legal position, the Court converted the offence to one under Section 304 Part-II

instead of Section 302 IPC. Following the same legal principle and keeping in mind the factual position as unfolded, the view taken by the Trial Court

of convicting the appellant for offence punishable under Section 304 Part-II, is unexceptionable. The Trial Court had observed thus:

“60. The evidence placed on record by the prosecution, reveals that deceased Hitesh and the accused were having cordial relations since long,

knowing to each other and were good friends. A party was organized by the deceased in the room of accused Mukesh and deceased himself invited

all the accused to attend the party. In this party, large quantity of alcohol was consumed by them and suddenly an altercation took place between

deceased Hitesh and accused Atul Thakur as a result of which accused Atul stabbed Hitesh, which resulted into his death……

There is no doubt that Hitesh met a homicidal death on the night intervening 27/28.07/2011 at IGMC, Shimla consequent to stab injury inflicted by

accused Atul Thakur. The queston which arises for consideration is whether this action of the accused which caused the death of Hitesh would

amount to murder or culpable homicide not amounting to murder. It is an admitted fact that there was no enmity between the deceased and this

accused rather they were having cordial relations. The fact that there was a physical fight between the deceased and the accused Atul, cannot be

denied because it has come in the evidence of PW-11 Himanshu, PW-12 Manoj Bansal and PW-1 Ashutosh that a physical fight has taken place

between them.

In these circumstances, this Court will have to examine the prosecution evidence whether the accused Atul had taken an undue advantage or acted in

a cruel or inimical manner so as to deprive him of the benefit of exception 4 of Section 300. In fact, the prosecution could not prove any motive for

killing the deceased by the accused. The drinking session in the room of the accused Mukesh Thakur was by mutual consent. From these

circumstances, it can be held that the incident in question took place in a sudden fight in the heat of possession. The next question which arises for

consideration is whether the accused Atul did take an undue advantage of the said fight or acted in a cruel or inimical manner. Keeping in view the

fact that both the deceased and accused had consumed considerable amount of alcohol which is established from the evidence of the prosecution

witnesses, it cannot be altogether ruled out that the stab injuries inflicted were not with an intention of taking undue advantage by the accused Atul. It

is probable that in an inebriated condition the accused inflicted the injuries because of the physical fight between them. Moreover, keeping in view the

nature of the injuries noticed by Dr. Sandeep Kaushik in the MLC Ext. PW-18/A, it is difficult to accept the accused Atul Thakur intended to cause

the death of Hitesh or that the injuries were so dangerous that they would in all probability, cause death.

Nevertheless, the injuries were quite serious, the accused can surely by credited with the knowledge that if an injury is caused with a knife on the

chest or abdomen of a person then this act is likely to cause the death of the victim.

Having considered the material on record this Court is of the opinion that the accused Atul Thakur can only be found guilty of an offence

punishable under Section 304 Part II, Indian Penal Code.â€​

As aforesaid, the High Court overturned this finding of the Trial Court on the question of nature of offence, by mainly observing that the appellant

had caused repeated blows with a weapon like knife, causing six serious injuries to Hitesh Thakur to which he succumbed. We are of the opinion that

neither the factum of use of knife by the appellant during the assault nor the multiple blows (six) given by the appellant can be the sole basis to deny

the appellant of the benefit available under Exception 4 to Section 300 of IPC. The Court is obliged to take an overall view of the matter on the basis

of the established facts. This principle is restated in Surain Singh’s case (supra).

7.10 Similarly in the case of Surain Singh vs State Of Punjab reported in (2017) 5 SCC 796, it is observed as under:-

-----------------In the present case, the Kirpan used by the appellant-accused was a small Kirpan. In order to find out whether the instrument or

manner of retaliation was cruel and dangerous in its nature, it is clear from the deposition of the Doctor who conducted autopsy on the body of the

deceased that stab wounds were present on the right side of the chest and of the back of abdomen which implies that in the spur of the moment, the

appellant-accused inflicted injuries using Kirpan though not on the vital organs of the body of the deceased but he stabbed the deceased which proved

fatal. The injury intended by the accused and actually inflicted by him is sufficient in the ordinary course of nature to cause death or not, must be

determined in each case on the basis of the facts and circumstances. In the instant case, the injuries caused were the result of blow with a small

Kirpan and it cannot be presumed that the accused had intended to cause the inflicted injuries. 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. It is clear from the materials on record that

the incident was in a sudden fight and we are of the opinion that the appellant-accused had not 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.

Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention

to cause murder and bodily injury then the same would fall under Section 304 Part II. We are inclined to the view that in the facts and circumstances

of the present case, it cannot be said that the appellant- accused had any intention of causing the death of the deceased when he committed the act in

question. The incident took place out of grave and sudden provocation and hence the accused is entitled to the benefit of Section 300 Exception 4 of

the IPC.

Thus, in entirety, considering the factual scenario of the case on hand, the legal evidence on record and in the background of legal principles laid

down by this Court in the cases referred to supra, the inevitable conclusion is that the act of the appellant-accused was not a cruel act and the

accused did not take undue advantage of the deceased. The scuffle took place in the heat of passion and all the requirements under Section 300

Exception 4 of the IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300 IPC is attracted to the fact situations and the

appellant-accused is entitled to this benefit.

In the backdrop of the facts and evidence available on record, we are unable to maintain the conviction of appellant u/S. 302 IPC. The appropriate

offence found proved is u/s. 304 Part II IPC.

In the result, the appeal preferred by the appellant is partly allowed. The conviction of the appellant is altered from one u/S. 302 IPC to that of u/s.

304 Part II IPC by reducing the sentence from life imprisonment to the period already undergone by him with fine of Rs. 1,000/- with default

punishment, as directed by the trial court.

Let the appellant be set at liberty, if not wanted in any criminal case provided the amount of fine is deposited by him.

A copy of this judgment be sent to the trial court concerned alongwith the record of this case for information.