Tallu vs State of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 12.02.2009 passed by the Sessions Judge, Damoh in Sessions Trial No. 112/2008

whereby the appellant has been convicted under Section 302 of Indian Penal Code and sentenced to undergo R.I. for life with fine of Rs. 2,000/-

and under Sections 25 and 27 of the Arms Act and sentenced to undergo RI for one year with fine of Rs. 1,000/- and default stipulations.

The prosecution story in brief is that the deceased was living with his mother. Deceased was salesman in a government shop. Appellant and his

wife came to the house of the deceased at 12 o''clock in the noon. At that time, the deceased was sleeping. They told Kusum Bai (PW-1) wife of

the deceased to tell the deceased not to come to their house. On the date of incident, at around 4 o''clock in the morning, wife of the deceased had

awaken, at that time appellant Tallu came there. He had a gupti (knife). He had inflicted a blow on the stomach of the deceased. The deceased

tried to catch hold of the appellant. Sapna-wife of the appellant Tallu also came there and she had pulled away the appellant. The deceased

walked towards the courtyard and fell down. He died after sometime. Report was lodged at police station and offence was registered. Police

conducted investigation and filed charge-sheet. The appellant abjured guilt and pleaded innocence during the trial.

The trial Court held the appellant guilty for commission of offence punishable under Section 302 of IPC and Sections 25 and 27 of the Arms

Act and awarded sentence as mentioned above. Before the trial Court the appellant and his wife both were prosecuted. The trial Court acquitted

Sapna-wife of the appellant from the charges.

Learned counsel for the appellant has submitted that there is no independent witness in the case. The evidence of wife of the deceased is

unreliable. There is a dispute with regard to place of occurrence. The prosecution has concealed vital evidence. There was no motive. In alternate,

learned counsel for the appellant has submitted that in view of the injuries sustained by the deceased, the offence committed by the appellant would

fall under Section 304 Part I of IPC and for the aforesaid offence, the appellant has already undergone sufficient jail sentence.

Learned counsel for the State has submitted that there is ample evidence to prove the guilt of the appellant. The wife of the deceased is a natural

witness. Appellant had entered the house of the deceased. He was armed with weapon. Deceased died on the spot. Hence, the trial Court has

rightly convicted the appellant for commission of offence punishable under Section 302 of IPC and awarded proper sentence.

Kusum Bai (PW-1) is the wife of the deceased. She deposed that, I was sleeping outside the house on a cot. At around 5 o''clock in the

morning, appellant came to our house. He had inflicted a blow on the stomach of my husband by a gupti. Thereafter, my husband (deceased)

abused the appellant and clung to him. Thereafter, my husband went towards the courtyard and he fell down. After sometime, one tailor and other

persons from the village came there. Those persons had taken my husband to the angan (courtyard). He died there. I and my mother-in-law went

to police station to lodge the report. Thereafter, police came there. A day prior to the incident, at around 2 o''clock in the afternoon, appellant

along with his wife Sapna had come to my house and told me to tell my husband not to come to their house. I lodged the report at police station

which is Ex. P/1. The information about the death of the husband is Ex. P/2. Police prepared the spot map which is Ex. P/3 and I signed the same.

Patwari prepared the spot map which is Ex. P/4 and I signed the same. In paragraph 6 of her cross-examination she deposed that my husband had

taken out the gupti from his stomach. Some blood was coming out from the injury and some blood was also dropped on the earth. My husband

was sleeping on a bed however, there was no blood on the bed. After receiving blow of gupti, my husband clung to the appellant. Thereafter, he

walked 15-20 feet on foot then he fell down. Wife of the appellant came there and she had taken her husband (appellant) back.

Vijay Shankar (PW-2) deposed that before him, the appellant had given his memorandum and on his memorandum which is Ex. P/6 gupti was

seized vide seizure memo Ex. P/7. From the house of the appellant, a banyan was also seized.

Ramkishan Mishra (PW-4) Patwari deposed that I prepared a spot map (Ex. P/4) and signed the same.

Ravishankar (PW-5) deposed that I had seen the appellant and his wife were running and appellant had a gupti in his hand. Same facts have

been deposed by Kamod Singh (PW-6).

Dr. Prakash Rai (PW-7) performed autopsy of the deposed. He deposed that he noticed one injury of 2.5 cm x 1 cm and on internal

examination I noticed that there was injury in the intestine and blood was collected in the peritoneal cavity. He further deposed that deceased died

due to shock caused by injury. In his cross-examination, he admitted the fact that I did not mention in the report that the injury was sufficient to

cause death. However, I mentioned the fact that the cause of death was excessive bleeding which was caused due to injury received by the

deceased. The main artery of the stomach was cut. He further deposed that I opined that the injury could be caused by the weapon gupti seized

from the appellant.

M.P.Mishra (PW-9) Investigating Officer deposed that I conducted investigation of the case and prepared spot map which is Ex. P/5. I

recorded statement of witnesses. The appellant was arrested and on his memorandum Ex. P/6 a gupti was seized vide seizure memo (Ex. P/7). I

signed both the documents. Seized articles were sent to FSL. In his cross-examination, he deposed that the body of the deceased was lying in the

backside of the temple. I enquired from the neighbors about the incident. But they did not tell anything. He further admitted that the dog squad was

called. In paragraph 8, he further deposed that at Sl. No. 6 and 9 mentioned in the spot map (Ex. P/3) I did not notice any blood and I inspected

the spot but I did not find any blood traces on the spot. He admitted that he did not file the proceedings of dog squad along with the charge-sheet.

P.D.Minj (PW-10) Station Incharge admitted that on the information of Kusum Bai, merg was registered which is Ex. P/2. He admitted the

fact that dog squad was called.

Appellant examined two defence witnesses in his support. Jitendra (DW-1) deposed that at around 7-8 in the morning I noticed that dead

body of the deceased was lying in front of his house. Later police dog was also brought there. Gulab Bai (DW- 2) is the mother of the appellant.

She deposed that in the morning dead body of the deceased was found and dog was called.

Kusum Bai (PW-2) had deposed that appellant had inflicted blow on the stomach of the deceased and thereafter, she told about the incident

to her mother-in-law. She was present at the time of incident. Report was also lodge by her. The evidence of Kusum Bai (PW-1) wife of the

deceased establishes the fact that the appellant had inflicted a blow by gupti. Ravishankar (PW-5) and Kamod Singh (PW-6) corroborated the

fact that they had seen the appellant and his wife running. Appellant had a gupti in his hand. They were not normal at that time. These two

witnesses have also verified the fact that the appellant was armed with gupti. The gupti was seized from the possession of appellant. As per the

FSL report (Ex. P/18) blood was not found on gupti.

In our opinion, the evidence produced by the prosecution has established the fact that the appellant had inflicted a blow of gupti on the

stomach of the deceased and the trial Court has rightly recorded the aforesaid findings.

The next question is what offence the appellant has committed.

There is discrepancy in the evidence of Kusum Bai (PW-1) and Investigating Officer (PW-9) with regard to the place of incident. Kusum Bai

(PW-1) deposed that she was sleeping outside the house. At that time, appellant had come to their house and inflicted a blow by gupti. She further

admitted that some blood had dropped on the spot from the stomach of the deceased and thereafter, the deceased had walked upto 15-20 steps

and then he fell down. Dr. Prakash Rai (PW-7) who performed the post-mortem of the deceased deposed that he had noticed one piercing injury

on the stomach of the deceased. Due to the aforesaid injury, the main artery was cut. The death of the deceased was due to excessive bleeding.

When the main artery of the stomach was cut, there must be profuse bleeding. Investigating Officer in paragraph 8 deposed that he did not notice

any blood at the time of spot inspection. At Sl. No. 6 to 9 mentioned in the spot map (Ex.P/3) he did not notice any blood. This is unnatural. It

means that the prosecution has tried to conceal the place of incident because if the place of incident was correct, as mentioned in the spot map (Ex.

P/3) and as per the statement of Kusum Bai (PW-1), then there must be some blood found on the spot. Kusum Bai (PW-1) has also deposed that

the deceased had abused the appellant and there was scuffle. It appears that due to some previous enmity, there was scuffle and hot talks between

the appellant and the deceased. In that event, the appellant had inflicted a blow of gupti on the person of the deceased.

The Hon''ble Apex Court in case of Arjun & Anr. Vs. State of Chhattisgarh [(2017) 3 SCC 247] has held as under with regard that, whether

offence would fall under Section 304 Part I of IPC or not :

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, Represented 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 postmortem 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, from the evidence, it appears that there was a sudden fight. It was done in the heat of passion. Appellant had not taken any

undue advantage or acted in cruel manner. In that view of the matter, in our opinion, offence committed by the appellant would fall under Section

304 Part I of IPC.

From the possession of the appellant, a gupti was seized which was used for committing the offence. Hence, appellant was also convicted

under Section 25 and 27 of the Arms Act, 1959. The trial Court has rightly convicted the appellant for commission of offence under Section 25

and 27 of the Arms Act, 1959 and awarded proper sentence.

Consequently, the appeal filed by the appellant is partly allowed. His conviction and sentence awarded by the trial Court under Section 302 of

IPC is hereby set aside. He is convicted under Section 304 Part I of IPC and awarded sentence of rigorous imprisonment for 10 years. The

conviction and sentence awarded by the Trial Court under Sections 25 and 27 of the Arms Act is hereby upheld. Both the sentences shall run

concurrently. Appellant is in jail. He has completed jail sentence of more than 10 years including remission. He shall be released forthwith if not

required in any other case.

Copy of this judgment be sent to the Court below for information and compliance along with its record.