Rakesh @ Gote vs State of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 08.08.2007 passed in Sessions Trial No.15/2007. The trial Court held the appellant

guilty for commission of offence punishable under Section 302 of Indian Penal Code and awarded sentence of life imprisonment alongwith fine of

Rs.1000/- and in default of payment of fine, further imprisonment for two months.

Prosecution story in brief is that on the date of incident i.e. on 30.09.2006 wives of the deceased and his brother Vishnu namely Pappobai and

Sunitabai were preparing chapaties (bread). At that time, appellant came there and told Pappobai and Sunitabai to touch his feet. He forced them

to do so. The deceased obstructed the appellant and told him not to do the aforesaid act. In that event, the appellant went inside of the house and

he had taken out a kataar (dagger) from the house and inflicted a blow on the stomach of the deceased. The deceased was taken to a local doctor.

When the ailment aggravated, on 02.10.2006, report of the incident was lodged at the police station. The deceased was admitted in the hospital.

He died during treatment on 03.10.2006 at around 10:45 PM in the night. After death of the deceased, an intimation was sent to Police Station

Gopalganj. Police recorded merg intimation and registered the offence against the appellant. Police conducted investigation and filed charge-sheet

against the appellant. The appellant abjured the guilt and pleaded innocence. The trial Court, after trial, held the appellant guilty for commission of

offence and awarded sentence as mentioned above in the judgment.

Learned counsel for the appellant has not pressed the appeal on merits. However, he has submitted that even the evidence of prosecution be

accepted as it is, the offence alleged to have been committed by the appellant would fall under Section 304 Part I of IPC and for that offence, the

appellant has already undergone a jail sentence of RI 10 years.

Learned counsel for the State has submitted that there is sufficient evidence on record against the appellant to convict him for commission of

offence of murder. The trial Court has not committed any error and passed a proper sentence.

PW-1 Ashish is an eye witness. He deposed that the deceased was elder brother of my father. At around 9 O''clock, the appellant was insisting

my mother and my elder mother (badi ma) to touch his feet. He was in a drunken state. My mother and elder mother told him that they would

touch the feet of the appellant after preparing chapaties. The appellant started hurling abuses to them. Thereafter, my elder father (deceased) came

there. He asked the appellant why he was abusing them and asked him to leave the place. Appellant went inside the house. He inflicted a blow of

kataar at the deceased, which hit below stomach of the deceased. Thereafter, we had taken the deceased to the hospital.

PW-2 Kuldeep is another eye witness. He deposed that deceased was elder brother of my father. Number of persons were present at the

house. My mother was preparing chapaties. Appellant came there. He told my mother to touch his feet. My mother told him that she would touch

his feet after preparing chapaties. Appellant started abusing her. My elder father told him to go inside the house and sleep. Thereafter, the appellant

went inside the house and had taken out a kataar and inflicted a blow on the stomach of the deceased and ran away. We had taken the deceased

to the hospital.

PW-5 Pappobai is wife of the deceased. She deposed the same facts that she and her devrani (sister-in-law) Sunitabai were preparing

chapaties. At that time, appellant came there and he insisted us to touch his feet. We told him that we would touch his feet after preparing

chapaties. He started abusing us. At that time, my husband (deceased) came there and told the appellant not to abuse us and asked him to go

inside the house. Appellant went inside the house and taken out a kataar and inflicted a blow on the stomach of my husband. Same facts have been

deposed by PW-6 Sunita. She was also preparing chapaties alongwith her jethani Pappobai (PW-5). PW-7 Vishnu also deposed the same facts.

He further deposed that he went to Gopalganj Police Station to give intimation of death of the deceased and had handed over the slip given by the

doctor, which Ex.P4. On the basis of which, merg intimation Ex.P5 was registered.

PW-9 Ghanshyam Das Sen deposed that I was posted as ASI on 30.09.2006 at Police Station Gopalganj. On 02.10.2006, complainant

Prahlad (deceased) lodged a report at the police station, which Ex.P10 and I signed the same. PW-4 Jawahar Singh deposed that I prepared

arrest memo of the appellant, which is Ex.P2 and signed the same. PW-10 Badriprasad Patel is witness of seizure and memorandum of the

appellant. He turned hostile. However, he admitted his signatures on memorandum Ex.P11 and seizure memo Ex.P12.

PW-10 Dr. K.K. Jain, who performed postmortem of the deceased, deposed that on 04.10.2006 I conducted autopsy of the deceased and

noticed one stitched injury on left inguinal region, which was 2 CM long. It was deep upto sigmoid colon. Sigmoid colon was punctured. Punctured

wound on sigmoid colon was 1/2 CM long. It was antemortem and caused by sharp pointed weapon. He further deposed that the deceased died

due to shock due to toxemia of the aforesaid injury. He further deposed that if proper treatment was given to the deceased and operation was

done, the deceased could have been saved.

PW-13 Kailash Nahta in the Investigating Officer. He deposed that I prepared spot map Ex.P3 on 05.10.2006 and signed the same. On

10.11.2006, I recorded memorandum of the appellant Ex.P11 and signed the same. On the memorandum of the appellant, an iron kataar was

seized from the house of the appellant vide seizure memo Ex.P12. I signed the same. I recorded statements of the witnesses Khemchandra,

Pappobai, Sunitabai, Vishnu, Ashish, Laxman and Bablu. The appellant was arrested.

From the evidence of the witnesses PW-1, PW-2, PW-5, PW-6 and PW-7, this fact has been proved that the appellant inflicted a blow by

kataar on the stomach of the deceased. Doctor, who performed postmortem of the deceased (PW-12), verified the fact that deceased died due to

incised wound suffered by him in sigmoid colon. The injury was antemortem in nature. Hence, it is proved that due to the injury caused by the

appellant, deceased was died. A kataar was seized from the possession of the appellant.

Now, the question is that whether the offence committed by the appellant would fall under Section 304 part I of IPC. The Hon''ble Apex

Court in the case of Arjun and another vs State of Chhattisgarh, (2017) 3 SCC 247 has held that to invoke exception 4 of Section 300 of IPC,

following ingredients have to be established:

To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. UT, 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.....

In the present case, the appellant was in a drunken state. He was insisting the women to touch his feet. They told him that they would touch his

feet after preparing chapaties. In that event, deceased told the appellant not to abuse the women and he prevented the appellant from abusing

them. Thereafter, appellant went inside the house and took out a kataar and inflicted a blow on the stomach of the deceased. It was a sudden act

of the appellant. There was no premeditation. The act was done in a heat of passion and the appellant had not taken undue advantage. The doctor

who performed postmortem on the body of the deceased deposed that if proper treatment had been given to the deceased, his life could be saved.

The deceased died after three days of the incident. In such circumstances, the offence committed by the appellant would fall under Section 304

part I of IPC.

The appellant was arrested on 19.10.2006. His sentence was suspended on 01.07.2015. He was in custody during trial. He has completed

more than 9 years of actual jail sentence and more than 10 years jail sentence including remission. Hence, in our opinion, it would be just and

proper if the appellant be awarded a sentence as already undergone.

Consequently, Appeal filed by the appellant is partly allowed. His conviction and sentence awarded by the trail Court is hereby set aside. The

appellant is convicted for commission of offence punishable under Section 304 part I of IPC. He is awarded a sentence of already undergone. At

present, he is in jail. He be released forthwith, if he is not required in any other case.

The appellant is imposed a fine of Rs.1000/- and in case of default of payment of fine, he is ordered to suffer further imprisonment for two

months. He has completed the sentence of default stipulation, hence, it is not necessary to deposit the fine amount.