HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No. 2769/2000
Ramhit
Vs.
State of Madhya Pradesh
Present: Hon'ble Shri Rakesh Saksena &
Hon'ble Shri R.S. Jha, JJ.
________________________________________________
Shri Rajneesh Patel, counsel for the appellant.
Shri Prakash Gupta, Panel Lawyer, for the State/respondent.
JUDGMENT
( -02-2010 )
R.S.Jha, J. :
This appeal has been filed by the appellant against his
conviction for an offence punishable under Section 302 of the
Indian Penal Code (hereinafter referred to as the IPC) by
judgment dated 17-11-2000 passed by the Additional
Sessions Judge, Maihar, District Satna in Sessions Trial No.
29 of 1995 and the consequent sentence of imprisonment for
life and a fine of Rs.2,000/- and in default, R.I. for two years
2. The prosecution case against the accused/appellant
Ramhit is that he and his father Dadoli were harvesting their
crops in the afternoon of 13-11-94 in village Kalla when the
deceased Lallu broke their hedge for making a passage for
their bullock cart which led to an altercation between the
appellant Ramhit, his father Dadoli and the deceased Lallu.
On hearing the altercation villagers, specifically, Ram
Sumiran (PW-4) and Rambali (PW-5) and others reached the
spot and stopped the parties from fighting. Thereafter, while
the deceased Lallu and his brother Makholi (PW-3) were
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going to their house which was only at a short distance on
way, the accused/appellant ran to his house, brought a spear
(Ballam) and struck a single blow in front lower neck of the
deceased Lallu which cut through his wind pipe and heart
resulting in his death.
3. The trial Court on examining the oral and documentary
evidence on record has held the appellant guilty of an
offence punishable under Section 302 of the IPC but has
acquitted his father Dadoli. Being aggrieved by his conviction
under Section 302 of the IPC the appellant has filed the
present appeal.
4. It is contended by the learned counsel for the appellant
that his conviction by the trial Court is based on a
misinterpretation and misreading of the oral documentary
evidence on record inasmuch as the trial Court has failed to
consider the evidence on record to the effect that both the
parties fought on account of intrusion of the deceased and
his brother Makholi (PW-3) on the property of the appellant
and his father Dadoli which resulted in retaliation on their part
and in the ensuing fight the appellant’s father Dadoli as well
a the appellant received injuries which have not been
explained properly by the prosecution. The appellant further
submits that he and his father Dadoli were assaulted by the
deceased Lallu and his brother Makholi and the appellant
and his father retaliated in their defence. It is submitted that
in the ensuing struggle the spear (Ballam) of the deceased
Lallu himself, accidentally pierced into his throat resulting in
his death. It is stated that in the aforesaid facts and
circumstances of the case which have not been properly
appreciated by the trial Court no offence under Section 302
of the IPC is made out against the appellant. In the
alternative it is submitted that the single injury which resulted
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in the death of the deceased Lallu was caused in a fight
which flared up suddenly and in such circumstances looking
to the surrounding facts and the single injury caused to the
deceased the offence if any committed by the appellant
would at best be one under Part-II of Section 304 of the IPC
and not Section 302 of the IPC as held by the trial Court. It is
submitted that the finding recorded by the trial Court is
perverse and deserves to be set aside. In support of his
submissions the learned counsel appearing for the appellant
has relied upon the judgments of the Supreme Court
rendered in the cases of Bunnilal Chaudhary v. State of
Bihar, (2007) 1 SCC (Cri) 66, Shivapps Buddappa Kolkar
v. State of Karnataka and others, 2005 SCC (Cri) 93 and
Byvarapu Raju v. State of A.P. and another, (2008) 1 SCC
(Cri) 30.
5. Per contra, the learned counsel appearing for the State
submits that the evidence on record including the evidence
recorded regarding injuries on the person of the appellant
and his father has duly been taken into consideration by the
trial Court. It is stated that the trial Court has duly analysed
the oral and documentary evidence on record and has rightly
recorded a conclusion that a fight broke out between the
appellant, his father Dadoli and the deceased Lallu but the
parties were pacified by Ram Sumiran (PW-4) and others
after which the deceased and his brother started going home
but the accused/appellant ran to his house, brought a spear
along with him and struck a heavy blow by the said spear on
the front of the lower neck of the deceased Lallu which
resulted in his death on the spot and in such circumstances,
the appellant has rightly been held guilty of an offence
punishable under Section 302 of the IPC and convicted
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thereunder. The learned counsel for the respondent has
placed reliance on a decision of the Supreme Court rendered
in the case of State of Rajasthan v. Dhool Singh, AIR 2004
SC 1264 in support of his submissions.
6. We have gone through the impugned judgment as well
as the oral and documentary evidence on record specifically
that of Makholi (PW-3), Ram Sumiran (PW-4), Rambali
(PW-5), Dr. A.K.Awadhiya (PW-7) and Mahendra Singh
Karchuli (PW-8) as well as the statements of Dr. R.K.Jain
(DW-1), Dr. A.C.Khare (DW-3) and Sant Prasad Patel
(DW-4).
7. From the statements of the aforesaid witnesses it is
clear that a fight between the accused/appellant and his
father Dadoli and the deceased Lallu occurred on account of
the deceased removing a part of the hedge between the land
of the appellant and the deceased and blows were
exchanged by both the parties and the father of the accused/
appellant was thrown on the ground by the deceased Lallu
as a result of which he suffered amongst others a simple
injury on his head but at this stage Ram Sumiran (PW-4) and
others reached the spot and counselled both the sides after
separating them. Ram Sumiran (PW-4) in paragraph 17 of
his statement has clearly stated that at this stage peace was
brought about and that the parties started going to their
separate ways. It is also evident from the statements of the
witnesses specifically PW-4, Ram Sumiran (in paragraph 23)
that thereafter the accused/appellant ran to his house and
came back after five minutes with a spear (Ballam) and
without saying anything struck the fatal blow in the front
lower part of the neck of the deceased Lallu as a result of
which he fell down and thereafter died on the spot. The
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offending blood stained weapon and blood stained clothes
were also seized by the police from the accused.
8. In view of the aforesaid, it is apparent that the incident
actually occurred in two parts, the first part when the parties
exchanged blows inflicting simple injuries on each other and
the second part when after being pacified the parties started
going their home ways, the accused/appellant ran to his
house which was nearby, brought a spear and struck the
fatal blow.
9. The plea of self defence or of accidental death in
sudden fight taken by the appellant deserves to be rejected
as in the instant case it is clear that when the sudden fight
broke out between the parties the offending weapon was not
carried by the accused/appellant and that in the sudden fight
both the parties grappled with each other resulting in simple
injuries to both of them including the injury on the head of
Dadoli, father of the accused/appellant. It is also clear that at
this stage villagers including PW-4, Ram Sumiran intervened
and the parties were separated. It is also clear from the
evidence that after being separated the deceased along with
his brother started going back to their home and it is at this
stage that the accused/appellant ran to his house and came
back after arming himself with the spear in about five
minutes and dealt the fatal blow on the front of the lower
neck of the deceased which cut through his wind pipe as well
as the top part of the heart resulting in his death on the spot
and, therefore, it cannot be said that the blow was delivered
by the accused/appellant in self defence or in the course of a
sudden quarrel by using whatever weapon he was carrying
along with him or that the deceased suffered the injury in the
heat of the moment without their being any knowledge or
intention on the part of the accused/appellant.
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10. On the contrary, from the evidence it appears that after
the sudden fight between the parties was over the appellant
ran to his house, brought the spear, delivered the blow with
considerable amount of force on the vital part of the body of
the deceased with the knowledge and intention of causing
the death of the deceased. It is also clear from the facts of
the case that after the parties having been separated and
pacified and were going their own separate ways, the
accused/appellant with deliberate intent ran to his house and
came back and delivered the fatal blow on a vital part of the
body with the premeditated intent of causing death of the
deceased with the spear.
11. The judgments of the Supreme Court on which
reliance has been placed by the learned counsel for the
appellant to contend that in all cases where a single injury is
caused as a result of sudden fight, the case would fall under
Part-I or Part-II of Section 304 of the IPC are not applicable
to the present case as the facts of the present case clearly
indicate that the fatal blow was not delivered by the appellant
during and in the course of a sudden fight which erupted
between the parties but was delivered after both the parties
were separated and pacified and they started going their
separate ways and that the appellant who was unarmed till
that point of time went to his house, armed himself with a
spear, came back and delivered the fatal flow.
12. The law as to whether in such circumstances the
offence is one under Section 302 or Part-I or Part-II of
Section 304 of the IPC has been duly summarized by the
Supreme Court in the case of Pulicherla Nagaraju alias
Nagaraja Reddy v. State of A.P., (2006) 11 SCC 444 and it
has been specifically held in paragraphs 21 and 26 that the
contention that in all cases where the death is on account of
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single blow the offence falls under Section 304 and not
Section 302 of the IPC cannot be accepted. It was further
held in paragraph 29 :-
“29. Therefore, the court should proceed to
decide the pivotal question of intention, with care and
caution, as that will decide whether the case falls
under Section 302 or 304 Part I or 304 Part II. Many
petty or insignificant matters plucking of a fruit,
straying of a cattle, quarrel of children, utterance of a
rude word or even an objectionable glance, may lead
to altercations and group clashes culminating in
deaths. Usual motives like revenge, greed, jealousy or
suspicion may be totally absent in such cases. There
may be no intention. There may be no pre-meditation.
In fact, there may not even be criminality. At the other
end of the spectrum, there may be cases of murder
where the accused attempts to avoid the penalty for
murder by attempting to put forth a case that there
was no intention to cause death. It is for the courts to
ensure that the cases of murder punishable under
section 302, are not converted into offences
punishable under section 304 Part I/II, or cases of
culpable homicide not amounting to murder, are
treated as murder punishable under section 302. The
intention to cause death can be gathered generally
from a combination of a few or several of the
following, among other, circumstances : (i) nature of
the weapon used; (ii) whether the weapon was carried
by the accused or was picked up from the spot; (iii)
whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury; (v)
whether the act was in the course of sudden quarrel
or sudden fight or free for all fight; (vi) whether the
incident occurs by chance or whether there was any
pre-meditation; (vii) whether there was any prior
enmity or whether the deceased was a stranger; (viii)
whether there was any grave and sudden provocation,
and if so, the cause for such provocation; (ix) whether
it was in the heat of passion; (x) whether the person
inflicting the injury has taken undue advantage or has
acted in a cruel and unusual manner; (xi) whether the
accused dealt a single blow or several blows. The
above list of circumstances is, of course, not
exhaustive and there may be several other special
circumstances with reference to individual cases
which may throw light on the question of intention. Be
that as it may.”
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13. The judgment of the Supreme Court in the case of
State of Rajasthan v. Dhool Singh, AIR 2004 SC 1264
(supra) is also to the same effect.
14. From the aforesaid law laid down by the Supreme
Court it is clear that the Court has to examine the question of
intention in each case with care and caution to decide as to
whether the case falls under Section 302 or Section 304
(Part-I) or (Part-II) of the IPC and while doing so the Court
has to take into consideration the factors mentioned in
paragraph 29 quoted above apart from the other evidence on
record in individual case.
15. In the aforesaid facts and circumstances and the law
laid down by the Supreme Court we are of the considered
opinion that the trial Court while analysing the evidence
specifically in paragraphs 19 to 21, has committed no error
as is apparent from the oral and documentary evidence on
record and in recording a conclusion to the effect that the
appellant is guilty of an offence punishable under Section
302 of the IPC. We are also of the considered opinion that
the sentence and conviction imposed upon the appellant are
in accordance with law and the submissions made to the
contrary deserve to be rejected.
16. In view of the aforesaid, the appeal being sans merit
accordingly is dismissed. The appellant who is in jail, shall
undergo the sentence as imposed upon him by the trial
Court.
(Rakesh Saksena) (R.S.Jha)
Judge Judge
mct
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