Ram Bharat Chachre vs The State of Madhya Pradesh

None for the appellant. Shri A.N. Gupta, G. A. for the respondent/ State. Appeal is of the year 1995. Since no one appeared on behalf of the

appellant, hence, Shri Sharad Singh Baghel, Advocate, who is Panel Lawyer of Legal Service committee, is appointed as amicus-curie to assist the

Court. With the assistance of Shri Sharad Singh Baghel, Advocate appeal is heard finally.

Appellant has filed this appeal against the judgment dated 16/03/1995 passed in Sessions Trial No. 40/94. The trial court held the appellant

guilty for commission of offence punishable under Sections 302 of IPC and awarded sentence for life.

Prosecution story in brief is that before incident there was quarrel between the appellant and deceased. Present appellant had beaten the

deceased on the date of incident i.e. on 17/08/1993. Accused-appellant was going along with his cattle, deceased was also there. There was

quarrel between appellant and the deceased. In that event, appellant had inflicted a blow by axe on the temporal region of the head of the

deceased, he fell down. Thereafter, other persons who were present at the spot took the deceased to the hospital. At the hospital deceased was

declared dead. On the information received from the hospital, Station House Officer registered marg 0/93 thereafter police reached at the spot and

conducted investigation and filed charge-sheet. Accused abjured his guilt during trial and pleaded innocence. The trial court held the appellant guilty

for commission of offence punishable under Section 302 of IPC and awarded sentence for life.

Learned counsel for the appellant has submitted that there is only one eye witness PW/1, he has not reliable. He has further submitted that even

if the prosecution evidence be accepted as it is, the offence committed by the appellant would fall under Section 304 Part I of IPC.

Contrary to this, learned Government Advocate for the State has submitted that there is sufficient evidence to hold the appellant guilty for

commission of offence punishable under Section 302 of IPC. The appellant applied sufficient force and inflicted a blow on the temporal region of

the head of the deceased. He was having axe, hence the trial court has rightly held the appellant guilty for commission of offence punishable under

Section 302 of IPC.

PW/1 Hariram eye witness deposed that on the date of incident I was sitting at my Otle, Ramesh Chachre was also there. Appellant was going

along with his cattle. From the opposite side son of Sharmaji was coming. There was quarrel between both of them, I told them not to quarrel. In

that event deceased Rajesh had beaten the appellant thereafter appellant had inflicted a blow by axe at Rajesh on his temporal region of head, he

fell down. Thereafter I wrapped the injury which was sustained by the deceased from cloth, Satyanarayan and his son Mohan also reached at the

spot. They had taken the deceased to Harda. Police prepared the spot map before me which is Ex. P/1 and I signed the same. Police also seized

plain and red earth vide seizure memo Ex. P/2 I signed the same.

PW/2 Satyanarayan is the father of the deceased. He deposed that I was at house, Tarachand informed me that Bharat had inflicted a blow by

axe at the deceased Rajesh, he was unconscious thereafter, I reached at the spot. At that time Hariram and one person was also there. I had taken

the deceased to hospital where he was declared dead. Prior to one month of the incident, there was quarrel between appellant and the deceased. I

lodged report Ex. P/3 and signed the same. Police came on the spot. I also signed Panchayatnama of the body of the deceased Ex. P/5

PW/3 Tarachand, declared hostile.

PW/4 Amratlal, is the witness of seizure. He deposed that before me the appellant had given memorandum that he had kept the axe in his house.

Thereafter, from the house of the appellant on his instruction axe was seized, memorandum is Ex. P/8 and Ex. P/9 is the seizure memo. I signed

both the documents.

PW/5 Manmohan, deposed that Tarachand had told me that Bharat had inflicted a blow by axe at the deceased.

PW/6 Premchand, deposed that I prepared spot map Ex. P/10 and signed the same.

PW/7 Dr. Sudheer Jaisani, who performed postmortem of the deceased deposed that I performed postmortem of the deceased and noticed

one incised injury present over cheek extending from external auditory meatus of lt. ear to short of lt. angle of mouth 10 cm in length. All underlying

structures divided including muscle bone of arteries and buccal mucosa were cut, maxilla was fractured width of the wound was 2.5 cms. It could

be caused by axe. The injury was antemortem in nature.

PW/11 Narendra Singh Vaishy, is the investigating officer. He deposed that I received information on wireless that deceased was taken to

hospital. He was dead, I recorded the aforesaid information on Rajnamcha, thereafter, I reached at the hospital and from there to the spot. Father

of the deceased had given information that the appellant had inflicted a blow of axe to the deceased I registered Dehati Nalsi Ex. P/3 and signed

the same. Thereafter I conducted the investigation and recorded statements of Satya Narayan, Manmohan, Tarachand Sharma, Manohar Singh,

Ramesh Chachre, Hariram Jat and Mahesh Sharma. I prepared spot map which is Ex. P/1 seized plain earth and red earth vide seizure memo Ex.

P/2 and signed both the documents. Appellant was arrested vide arrest memo Ex. P/15. On the memorandum of appellant Ex. P/8 axe was seized

from his house vide seizure memo Ex. P/9. I signed both the documents. Thereafter, I recorded statements of other witnesses. The seized material

was sent to FSL.

PW/1 Hariram, is an eye witness. His presence is natural. He was sitting at his house. He narrated the incident. He specifically deposed that

there was quarrel between the deceased and appellant and deceased had beaten the appellant and thereafter the appellant had inflicted a blow by

axe at the deceased on his temporal region of the head. The same facts have been narrated by other witnesses.

The Apex Court in the case of Arjun and another Vs. State of Chhattisgarh, (2017) 3 SCC 247 has further 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.

In the present case as per the evidence of PW/1 there was quarrel between appellant and the deceased, thereafter deceased had beaten the

appellant, in that event the appellant had inflicted a blow of axe on the person of the body of the deceased. There was no premeditation on behalf

of the appellant to kill the deceased. The incident had occurred all of a sudden in a heat of passion without any premeditation. The appellant had

inflicted one blow of axe, he has not acted in a cruel manner. He was having axe because he was going along with his cattle. In this view of the

matter, in our opinion, the offence committed by the appellant would fall under Section 304 Part I IPC.

Consequently, the appeal filed by the appellant is partly allowed. Conviction and sentence awarded by the trial court to the appellant is

modified. The appellant is convicted for commission of offence punishable under Section 304 Part I of IPC and he is awarded sentence of RI for

ten years. The appellant is on bail. His bail bonds are canceled. He is directed to surrender before the trial court for undergoing remaining jail

sentence.