Vaman Rao S/O Shankar Rao Kanathe vs State Of Madhya Pradesh

S.K. Gangele, J

Appellant has filed this appeal against the judgment dated 24.2.2008 passed in S.T. No.156/2007.

Appellant was prosecuted for commission of offence punishable under Section 302 and 307 of IPC. Trial Court held appellant guilty for commission

of offence under Section 302 and 307of IPC and awarded sentence of life with fine of Rs.5,000/in earlier count while RI for seven years with fine of

Rs.5,000/- in later with a further direction that both sentences shall run concurrently.

Prosecution story in brief is that the deceased had given his T. V. and V. C. D. Player to the appellant fifteen days before from the date of the

incident. Appellant did not return back T. V. and V. C. D. Player. On the date of the incident the deceased and P. W. 1 both had gone to the house of

the appellant on a motorbike, they entered in the house. The deceased told the appellant to return back T. V. and V. C. D. Player because family

members were demanding the same. Appellant told the deceased that he had no money, hence, he had given T. V. and V. C. D. Player in the

marriage of sister-in-law, on that account the deceased abused the appellant. The deceased told him that T. V. and V. C. D. Player were given for

watching and not for giving the same in dowry. Appellant and deceased both were abusing each other. Appellant told the deceased that he would

return T. V. and V. C. D. Player after purchasing the same on receiving salary. On this count appellant had taken out an Axe and inflicted blow on

the head of the deceased. P. W. 1 tried to save the deceased, on which the appellant had inflicted blow of Axe on P. W.1 also. P. W.1 went to his

house and narrated the incident to his family members. They reached at the house of appellant Vaman, he did not open the door. Thereafter, appellant

came and opened the door, the deceased was found dead. P. W.1 was admitted at the hospital and appellant was arrested. Police conducted

investigation and filed charge-sheet. During trial appellant abjured his guilt and pleaded innocence. However, trial court held appellant guilty for

commission of offence punishable under Section 302 and 307 of IPC and awarded sentence as mentioned above.

Learned counsel for the appellant has contended that conviction of the appellant is based on the evidence of P. W.1, who lodged FIR. According to

FIR, there was a quarrel and scuffle between the appellant and the deceased. Both had beaten to each other by fists and kicks, in that event the

appellant had inflicted injuries. Hence, the appellant is entitled to get the benefit of right of private defence. In alternate, she has submitted that incident

had occurred all of sudden in heat of passion.

Hence, the offence committed by the appellant would fall under Section 304-I of IPC.

Learned counsel for the State has submitted that the appellant had given repeated blows of Axe. He had also given one blow of Axe to P. W.1,

which was serious in nature. He had used deadly weapon. Hence, trial Court has rightly convicted the appellant for commission of offence of murder.

In support of his contention learned counsel for the respondent has relied  on the following judgments of the Apex Court; (1) Ghanshyam Vs. State

of U. P. reported in 1990 (Supp) SCC 611, and (2) Munfait Vs. State of U. P. reported in 1995 Supp (4) SCC 587.

P. W.1 is injured eyewitness. He deposed that the deceased was my friend. Appellant was working as Peon in Government School. He was living

in a Government Quarter. The deceased had given T. V. and V. C. D. Player to the appellant. The deceased told me that we would go to the house

of the appellant to take back T. V. and V. C. D. Player because appellant did not return back the same since last four months. We went on a

motorbike at the residence of the appellant, we entered in the house. Thereafter, the deceased told the appellant to return back T. V. and V. C. D.

Player because his family members were demanding the same. Appellant did not return back T. V. and V. C. D. Player, he told the deceased that I

had given T. V. and V. C. D. Player in dowry in the marriage of my sister-in-law because I had no money, on that account the deceased was

shouting and abusing. He told the deceased that he would return T. V. and V. C. D. Player after purchasing the same on receiving salary in the next

month. The deceased and the appellant both were abusing to each other. Thereafter, appellant went in side of the house and taken out an Axe and

inflicted blow of Axe on the deceased. He fell down, I cried on which the appellant also inflicted a blow on my head and told me to keep mum.

Thereafter, he also inflicted some blows at the deceased. I ran away and went to my house. I told the incident to my family members. They went at

the house of the appellant. I was referred to Government hospital. I was admitted in the hospital for ten days. Villagers lodged the report at the police

station. I signed Ex.P.1, which is merg intimation, Ex.P.2, which is FIR and my T-shirt was seized by Ex.P.3.

Toga P. W.2 admitted that he signed Ex.P.6, Ex.P.7, and Ex.P.8, sezures of plain & red earth and sleepers.

Jhamlo Bai P. W.3 deposed that I went to the house of the appellant, which was locked from in side, house was not opened. Subsequently, house

was opened.

D. S. Kanwar P. W.4 is Naib Tahsildar, who prepared dead body Panchnama Ex.P.6.

Matan P. W.5 is the father of the deceased. He went to the spot after the incident.

Prabhakar Rao P. W.6 is Patwari, who prepared the spot map Ex.P.10.

Phundulal P. W.8 is the witness of seizure. He deposed that an Axe and T. V. were seized. Axe was seized by seizure memo Ex.P.15. I signed

both the documents.

Other witnesses had narrated the incidents.

Manish Balde P. W.17 is the Doctor, who performed postmortem of the deceased. He deposed that on 19.5.2007, I was posted as Assistant

Medical Officer at Community Health Center, Athner District Betul and performed postmortem of the deceased. I noticed following injuries on the

body of the person of the deceased:

(1) Sharp cut incised wound situated on right laterally on parietal region on head. Size 3½ x 3 x 1½ cm.

(2) Sharp cut incised wound situated on leftt laterally on parietal region on head. Size 2 x 3½ x 1½ cm.

(3) Sharp cut incised wound situated on central occipital region on head. Size 3½ x 2 x 1½ cm.

(4) Sharp cut incised wound situated on right laterally on occipital region on head. Size 3½ x 1½ x 1 cm.

(5) Sharp cut incised wound situated on left laterally on occipital region on head. Size 2½ x 1½ x 1½ cm.

On internal examination, I noticed sharp cut incised woundon the head. Injuries were antemortem in nature. The deceased was died due to injuries

suffered by him. I replied quarry of the police that the injuries suffered by the deceased could be caused by Axe, which was seized from the appellant.

I also examined injured witnesses P. W.1 and noticed one incised injury on his head.

D. K. Sakalle P. W. 15 is Investigation Officer. He deposed that I prepared spot map and signed the same. I seized plain and red earth from the

spot vide Ex.P.8 and I signed the same. Â I also recorded statements of Balakram, Mamta, Sabulal, Munna, Malan, Amlobai, Mathura, Birjobai,

Chintu @ Rajkumar, Panchhibai and Madhukar. Appellant was arrested on 22.5.2007. On his memorandum an Axe and clothes were seized. Axe

was seized by Ex.P.15. T-shirt which wearing the appellant was seized by seizure memo Ex.P.16. Seized articles were sent to FSL for examination.

In the present case, P. W.1 is the injured eyewitness. He was present on the spot. He lodged named FIR. The Apex Court in the matter of Abdul

Sayeed Vs. State of M. P. reported in (2010) 10 SCC 259 has held as under in regard to testimony of injured eyewitness :

“The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been

extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is

generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is

unlikely to spare his actual assailant(s) in order to falsely implicate someone. ""Convincing evidence is required to discredit an injured witness"". (Vide

Ramlagan Singh & Ors. v. State of Bihar, AIR 1972 SC 2593; Malkhan Singh & Anr. v. State of Uttar Pradesh, AIR 1975 SC 12; Machhi Singh &

Ors. v. State of Punjab, AIR 1983 SC 957; Appabhai & Anr. v. State of Gujarat, AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane & Ors. v.

State of Maharashtra, (1995) 6 SCC 447; Bhag Singh & Ors. (supra); Mohar & Anr. v. State of Uttar Pradesh, (2002) 7 SCC 606; Dinesh Kumar v.

State of Rajasthan, (2008) 8 SCC 270; Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477; Annareddy Sambasiva Reddy & Ors. v. State of

Andhra Pradesh, AIR 2009 SC 2261; Balraje alias Trimbak v. State of Maharashtra, (2010) 6 SCC 673).â€​

Apex Court has held that evidence of injured eyewitness is very reliable. Â

Apex Court further held in the matter of Mano Dutt Vs. State of U. P. reported in (2012) 4 SCC 79 has held that court can convict an accused on

statement of sole witness, even he is a relative of the deceased and interested party.

In the present case, P. W.1 is injured eyewitness. There is corroborative evidence to support the version of P. W.1. Axe was seized on

memorandum of the appellant. Clothes which appellant was wearing at the time of incident were also seized and as per FSL report Ex.P.28 on both

articles blood stains were found. FIR was lodged immediately after the incident. Hence, trial court has rightly held the appellant guilty for murder of

the deceased.

Now question is that what offence appellant has committed ?

Learned counsel for the State has strongly argued that the appellant had given repeated blows of Axe on the deceased. He had given one blow of

Axe to P. W.1 also. Hence, trial Court has rightly convicted the appellant for commission of offence of murder and awarded proper sentence. In

support of his contentions learned counsel for the respondent has relied  on the following judgments of the Apex Court; (1) Ghanshya Vs. State of

U. P. reported in 1990 (Supp) SCC 611, and (2) Munfait Vs. State of U. P. reported in 1995 Supp (4) SCC 587.

Contrary to this, learned counsel for the appellant has submitted that there is difference in the version of FIR, which was lodged by the P. W.1

immediately after the incident and his court statement. As per FIR the deceased went to the house of the appellant, he was abusing to him.

Thereafter, there was a scuffle between the deceased and the appellant. Both had beaten by fists and kicks to each other and in that event the

appellant had taken out Axe from the house and inflicted blow at the deceased.

Hence, the act of the appellant would fall under Section 304-I of IPC. Appellant examined his wife asD.W.1 in his defence. She deposed that the

deceased was trying to outrage her modesty. He entered in the house, at that time the appellant came there and when I prevented the appellant from

aforesaid act, both had beaten to each other.

There is slight difference in the evidence of P. W. 1 deposed by him before the court and the incident narrated by him in FIR. In the Merg Ex.P.1

and FIR Ex.P.2, it is mentioned that the deceased and P. W.1 went to the house of the appellant to take back T. V. and V. C. D. Player because the

deceased had given aforesaid T. V. and V. C. D. Player to the appellant. Thereafter, the deceased called the appellant and told him to return back T.

V. and V. C. D. Player, the deceased told him that he had no money, hence, he had given T. V. and V. C. D. Player in dowry to his sister-in-law and

he would return back after receipt of salary and there was vad-vivad “eknj pksn Vh-oh- ns eSaus rsjs dks ns[kus ds fy, fn;k Fkk] ngst nsus ds fy,

ugha fn;k Fkk†Both the appellant and the deceased abused filthy language and told that he would take T. V. and V. C. D. Player and in that event

both were beating to each other by fists and kicks, in the event of beating both had entered in side of the room and the appellant had taken out Axe

and inflicted blow on the head of the deceased. Thereafter, the deceased fell down. It is mentioned by P. W.1 in FIR that I had tried to save the

deceased then appellant had inflicted a blow of Axe on my head. Thereafter, I ran away from the spot. In court statement P. W. 1 did not mention the

fact that there was scuffle between the appellant and the deceased and both were beating to each other by fists and kicks in that event the appellant

had taken out Axe, which was kept in the room and inflicted blow of Axe on the head of the deceased. In our opinion, the facts mentioned by P. W.1

in FIR, which was lodged within two hours of the incident are more reliable.

Apart from this, in para 12 of cross-examination D. W. 1 admitted that we were sitting in one room of the house on a cot and thereafter, incident

had happened. She further admitted that before incident the deceased and the appellant used to visit houses of each other. It means that there was

cordial relationship between the appellant and the deceased, that is why the deceased had given his T. V. and V. C. D. player to the appellant.

Hon'ble Apex court in the matter of Gurpal Singh Vs. State of Punjab reported (2017) 2 SCC 365 has held as under in regard to fact that whether

offence committed would falll under Section 304-I or 302 of IPC.

“10. However, in the singular facts of the case and noticing in particular, the progression of events culminating in the tragic incident, we are

inclined to reduce the sentence awarded to him. Incidentally, the occurrence is of the year 2004 and meanwhile twelve years have elapsed. Further,

having regard to the root cause of the incident and the events that sequentially unfolded thereafter, we are of the comprehension that the appellant

was overpowered by an uncontrollable fit of anger somuch so that he was deprived of his power of self-control and being drawn in a web of action

reflexes, fired at the deceased and the injured, who were within his sight. The facts do not commend to conclude that the appellant had the intention of

eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof. Be that as it may, on an overall

consideration of the fact situation and also the time lag in between, we are of the view that the conviction of the appellant ought to be moderated to

one under Section 304 Part 1 IPC and 307 IPC. Further, considering the facts of the case in particular, according to us, it would meet the ends of

justice, if the sentence for the offences is reduced to the period already undergone. We order accordingly.â€​

Hon'ble the Apex court in the matter of Arjun Vs. State of Chhattisgarh reported in (2017) 3 SCC 247 has held as under in regard to Exception (4)

of Section 300 of IPC :

“19. 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:- “7. 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…………..â€​

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:- “9. …….

“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’.â€​

The accused, as per the version of PW-6 and eyewitness 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.

When and if there is intent and knowledge, thenthe same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not

the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head

i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to

cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellants under Section 302 read with

Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months

and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and

circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of

the period already undergone.

In the present case, as held in foregoing paragraphs the incident had happened all of sudden, there was no premeditation, the act was done in heat

of passion. There is also evidence that the deceased and appellant both had beaten to each other by fists and kicks. The deceased and P. W. 1 went

to the house of the appellant. The deceased abused him in filthy language.

Learning counsel for the State relied on the judgment of the Apex Court in the matter of Ghanshyam Vs. State of U. P. reported in 1990 (Supp)

SCC 611. Â However, the aforesaid judgment is distinguishable on facts. Hon'ble the Apex court has held that easing himself by the deceased in the

appellant's ruins cannot give rise grave and sudden provocation. Learned counsel for the State has also relied on the judgment of the Apex court in the

matter of Munfait Vs. State of U. P. reported in 1995 Supp (4) SCC 587. There is a finding that there was no provocation caused to the appellant by

the deceased. Hence, the judgments cited by the learned counsel for the State are distinguishable on facts.

Looking to the aforesaid facts of the case, evidence on record and principle of law as laid down by the Apex Court, in our opinion offence

committed by the appellant would fall under Section 304-I of IPC. P. W.1 received head injury, which was caused by hard and sharp object. He was

admitted in the hospital for seven days. Hence, in our opinion, trial court has rightly held guilty the appellant for commission of offence punishable

under Section 307 of IPC for causing injury to P. W. 1 and awarded proper sentence. Consequently, appeal filed by the appellant is partly allowed,

conviction and sentence awarded by the trial court for commission of offence punishable under Section 302 of IPC against the appellant is hereby

modified and appellant is convicted for commission of offence punishable under Section 304-I of IPC and he is awarded sentence of RI for ten years

with fine amount of Rs.1,000/- while his conviction and sentence for commission of offence punishable under Section 307 of IPC is hereby upheld. It

is further directed that both sentences shall run concurrently. The appellant is in jail since 22.5.2007 and he has completed more than ten years jail

sentence including remission. Hence, appellant be released forthwith, if he is not required in any other case.