BHAGIRATH versus THE STATE OF MADHYA PRADESH on 23 October 2018

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SUPREME COURT REPORTS[2018] 12 S.C.R. 604

[2018] 12 S.C.R.

BHAGIRATH

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v.

THE STATE OF MADHYA PRADESH

(Criminal Appeal No. 2301 of 2009)

BOCTOBER 23, 2018

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Penal Code, 1860 – Exception 4 to s.300 – Death caused insudden fight without premeditation – Prosecution case was thatvictim was surrounded by the appellant-accused and other accusedCpersons – In a verbal quarrel between the victim and the appellant-accused, a farsi blow on the right side of skull near ear of the victimwas inflicted by the accused-appellant – It was alleged that otheraccused had also inflicted injuries – Victim died – Trial Courtconvicted the appellant-accused u/s.302 and other accused u/s.302Dr/w. s.149, and sentenced all of them to life imprisonment – HighCourt confirmed the conviction and sentence of the appellant-accused, however, acquitted all other accused – On appeal, held:The injuries inflicted on the deceased was result of a sudden fightbetween him and the accused party – There was no premeditation –Appellant-accused had caused one injury to the deceased by farsiEblow on the head which indicated that the appellant had not takenundue advantage of the deceased – The manner, the occurrenceand the injury inflicted on deceased attracted exception 4 to s.300– Thus, the conviction of the appellant modified to s.304-I IPC andsentenced reduced to already undergone.F

Allowing the appeal, the Court

HELD: 1. The case of the prosecution rests upon theevidence of PW-6 an injured eye witness, who has deposed aboutquarrel between the deceased and the accused party. PW-6 hasalso spoken about the infliction of farsi blow by the appellant onGthe right side of the head near the ear of the deceased. WhenPW-6 tried to rescue the deceased, PW-6 also sustained injurieson his right hand. PW-6 was also injured in the occurrence issupported by the medical evidence and evidence of PW-2-Doctor.PW-6 being injured eye witness, his evidence stands on higherHfooting. Presence of injuries on the person of PW-6 lends assurance to his testimony. There is no reason to disbelieve thetestimony of injured eye witness(PW-6). [Para 6] [606-F-H; 607-A]

2. The fourth exception to Section 300 IPC deals with deathcommitted in sudden fight without premeditation. The suddenfight implies the absence of premeditation. In the instant case,as the injuries inflicted on the deceased was in the sudden fightbetween the deceased and the accused party. There was nopremeditation. One injury was caused to the deceased by farsiblow on the head which indicates that the appellant has not takenundue advantage of the deceased. The manner the occurrenceand the injury inflicted on the deceased attract Exception 4 toSection 300. In the facts and circumstances of the case, theconviction of the appellant is modified under Section 304 Part-IIPC and the sentence is reduced to the period already undergone.[Para 7] [607-C-E]

Abdul Sayeed v. State of M.P. (2010) 10 SCC 259:[2011] 12 SCR 718 – referred to.

Case Law Reference

[2011] 12 SCR 718 referred toPara 6

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 2301 of 2009

From the Judgment and Order dated 12.01.2009 of the High Courtof M.P., Indore Bench in Criminal Appeal No. 309 of 2007.

P. C. Agarwal, Sr. Adv., Ambuj Aggarwal, Nitin Singh, Dr. (Mrs.)Vipin Gupta, Advs. for the Appellant.

Ms. Swarupama Chaturvedi, B. N. Dubey, Advs. for theRespondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1.This appeal arises out of the judgmentof the High Court of Madhya Pradesh in Criminal Appeal No. 309 of2007 in and by which the High Court has affirmed the conviction of theappellant under Section 302 IPC and also the life imprisonment imposedupon him.

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A2. The case of the prosecution is that on 19.08.2005 at about10.00 p.m. the deceased-Bherulal was surrounded by the appellant-Bhagirath (armed with farsi) and other accused persons (since acquitted)viz. Mangu, Sangita Bai, Suma Bai and Ramkunwar. In the wordy quarrelbetween the deceased and the appellant-accused Bhagirath is said tohave inflicted the farsi blow on the right side of skull near ear. WhenBPW-6 (Ramchandra) tried to save the deceased, he also sustained injurieson his right hand. Further, case of the prosecution is that all other accused(since acquitted) also inflicted injuries on the deceased-Bherulal. Oncompletion of investigation, the appellant-accused and other accusedwere charge-sheeted for the offence under Sections 148/325/302 readCwith 149 IPC.

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3. Relying upon the evidence of injured eye witness (PW-6), theTrial Court has convicted the appellant-accused under Section 302 IPCand other accused under Section 302 read with Section 149 IPC andsentenced all of them to undergo life imprisonment. For the convictionDunder Section 325 read with Section 149 IPC, they were sentenced toundergo R.I. for one year.

4. In the appeal before the High Court, the High Court confirmedthe conviction of the appellant-accused and also sentence of imprisonmentas aforesaid. So far as the other co-accused are concerned, the HighECourt acquitted all of them holding that the charges against them havenot been established beyond reasonable doubt.

5. We have heard Mr. P.C. Agarwal, learned senior counselappearing on behalf of the appellant, as well as Ms. SwarupamaChaturvedi, learned counsel appearing on behalf of the State of MadhyaFPradesh, and also perused the impugned judgment and the materials onrecord.

6. The case of the prosecution rests upon the evidence of PW-6(Ramchandra), an injured eye witness, who has deposed about quarrelbetween the deceased-Bherulal and the accused party. PW-6 has alsoGspoken about the infliction of farsi blow by the appellant-Bhagirath onthe right side of the head near the ear of the deceased. When PW-6tried to rescue the deceased-Bherulal, PW-6 (Ramchandra) also sustainedinjuries on his right hand. PW-6 was also injured in the occurrence issupported by the medical evidence and evidence of PW-2 (Dr. C.S.Gangrade). PW-6 being injured eye witness, his evidence stands on higher H

footing. Presence of injuries on the person of PW-6 lends assurance tohis testimony (See: Abdul Sayeed v. State of M.P. reported in (2010)10 SCC 259 ). We do not find any convincing reason to disbelieve thetestimony of injured eye witness(PW-6).

7. The High Court acquitted all the other accused, since fatalblow is attributed to the appellant-accused. The question falling forconsideration is to the nature of the offence. As pointed out earlier, theoccurrence was at about 10.00 p.m., when there was wordy quarrelbetween the accused party and the deceased – Bherulal that there wasa quarrel between them is established from the evidence of PW-6 also.In the quarrel, the appellant-accused has inflicted injuries on the rightside of the head of the deceased measuring 15x2 ½ x 3 c.m. Thoughthere was another injury found on the deceased it was one contusionmeasuring 10x2 cm on lower portion of right neck. The fourth exceptionto Section 300 IPC deals with death committed in sudden fight withoutpremeditation. The sudden fight implies the absence of premeditation.Even as per the evidence of PW-6, there was a wordy quarrel and inthat quarrel the appellant inflicted farsi blow on the head of thedeceased.As the injuries inflicted on the deceased in the sudden fightbetween the deceased and the accused party. There was nopremeditation. One injury was caused to the deceased by farsi blow onthe head which indicates that the appellant has not taken undue advantageof the deceased. The manner the occurrence and the injury inflicted onthe deceased attract Exception 4 to Section 300. In the facts andcircumstances of the case, the conviction of the appellant is modifiedunder Section 304 Part-I IPC and the sentence is reduced to the periodalready undergone.

8. In the result, the conviction of the appellant under Section 302IPC is modified as conviction Section 304 Part-I IPC and sentence ofthe appellant is reduced to the period already undergone by him. Theappellant is ordered to be released forthwith if his presence is not requiredin any other case.

9. The appeal is, accordingly, allowed.

Ankit Gyan Appeal allowed.

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