Vesta vs State of Madhya Pradesh

Shantanu Kemkar, J.—The sole appellant Vesta has been convicted for an offence under Section 302 of the Indian Penal Code and sentenced to imprisonment for life. The victim of the incident deceased Habda was son of the appellant.

According to the prosecution case, on 19.02.2000 at about 07.00 PM, the deceased Habda and his wife Kalibai were quarreling over some issue. The appellant, father of the deceased, annoyed of it and told them to leave his house. When the deceased and his wife refused to do so, the appellant shot an arrow, which landed at the right side of neck of the victim. The arrow was removed by Kalibai. While she was taking the victim along with others on the bullock cart to Jobat, on the way, the victim died. A first information report of the incident was lodged at Police Station, Jobat. After investigation, the Police filed challan against the appellant. The trial Court, after recording the evidence led by the prosecution, convicted the appellant, as aforesaid.

Kalibai is the eye witness of the incident. She in her evidence has categorically narrated the incident mentioned above. The appellant is father-in-law of Kalibai. They were not inimical and were residing together. She, therefore, has no reason to falsely implicate him. The postmortem examination report Ex. P/2 prepared by Dr. H.N. Poddar (PW-3) also confirms the death of Habda due to incised wound caused on the neck of the deceased.

Having regard to the evidence available on record, learned counsel for the appellant very fairly has not assailed the prosecution story, which is well founded and fully proved. We, accordingly, confirm the finding of the trial Court that the appellant alone had caused the death of his son Habda.

Learned counsel for the appellant has, however, argued that even accepting the prosecution version in totality, it cannot be said that the appellant had intention to cause murder of his son Habda. According to her, the offence will not be under Section 302 of the Indian Penal Code, but under Part-II of Section 304 of the Indian Penal Code. We find substance in her submission.

The Supreme Court in the case of Muthu Vs. State by Inspector of Police, Tamil Nadu, has held that when in the heat of the moment or in a fit of anger a person does an act without premeditation that person must also be punished but his punishment should be lesser than that of premeditated offences. The Supreme Court has observed that it is for this reason that Exceptions 1 and 4 have been inserted in Section 300 of the Indian Penal Code. Exception 4 to Section 300 of the Indian Penal Code clearly provides that 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.

The appellant had admittedly dealt a single arrow blow, which landed on the right side of neck of the deceased Habda. In a state of anger, when the deceased and his wife were quarreling with each other, which then led to fight with the appellant and then refused to leave his house, the incident had occurred. It is not that the appellant had invited Habda to cause his death. It cannot be held that he had any premeditation to kill Habda by arrow blow. Had he intended to do so, he would not have allowed Kalibai to remove arrow from the neck of the deceased. The appellant on a quarrel without premeditation suddenly in a heat of passion dealt arrow blow.

In view of the aforesaid, we are of the view that the conviction of the appellant under Section 302 of the Indian Penal Code and the sentence imposed on him cannot be sustained. However, the appellant can safely be convicted under Section 304 Part-II of the Indian Penal Code.

We accordingly, convert the conviction of the appellant from Section 302 of the Indian Penal Code to conviction under Section 304 Part-II of the Indian Penal Code and considering his age to be of 73 years, impose upon him a sentence of five years rigorous imprisonment. The appeal stands partly allowed.