State of M.P. v. Shivshankar

1. Leave granted.

2. This appeal has been preferred against the Judgment dated 10th July, 2008 of the High Court of Madhya Pradesh, Jabalpur Bench at Gwalior in Criminal Appeal No.292 of 2005 altering the conviction of the respondent from Section 302 of the Indian Penal Code (IPC) to 304 Part-I of the IPC reducing the sentence from life imprisonment to rigorous imprisonment for seven years while upholding the sentence to pay a fine of Rs.10,000/-, in default to undergo two years further rigorous imprisonment.

3. The case of the prosecution is that on 2nd March, 1999 after celebration of Holi festival, sugar cakes (Batase) were being distributed in front of the house of the complainant by Page 2 Ramlachhin Gurjar (PW 10). Complainant Remsewak (PW 4) and his brothers Ramnaresh (PW 6), Vinod (PW 7) and deceased Satish were standing near the temple. An altercation took place on account of Mukesh taking some sugar cakes without the permission of PW 10. The respondent slapped PW 4 and his brothers. This led to further altercation between the accused and the complainant party. The accused went inside his house, brought the licensed gun of his brother and fired a shot hitting the deceased on the stomach. Apart from the accused, acquitted co-accused Shrichand and Shyamsunder had Kattas and Mukesh and Badshah were having 12 bore single barrel guns. The acquitted co-accused also fired in the air. The deceased succumbed to his injuries. Thereafter, Ramsewak lodged First Information Report. After investigation, the accused were sent up for trial. The prosecution case against the respondent was proved by three eye witnesses Ramsewak (PW 4), Ramnaresh (PW 6) and Vinod (PW 7) who were brothers of the deceased, apart from other corroborating evidence. The respondent was convicted under Section 302, IPC while others were acquitted.

4. The respondent preferred an appeal before the High Court, but in view of clear evidence of firing of gun shot by him causing death of the deceased, only challenge was to the Page 3 nature of the offence. It was submitted that quarrel took place suddenly and the accused had no intention to cause the death of the deceased. Firing in the air by the co accused showed that the intention was not to cause the death. The accused fired only one shot and in the circumstances no offence under Section 302, IPC was made out.

5. The above plea prevailed with the High Court. It was held as follows: “10. Considering the entire scenario of the case, it is clear that the incident occurred suddenly and without premeditation and therefore it cannot be gathered that the intention of the appellant was to intentionally cause the death of the deceased and therefore, the conviction of the appellant under Section 302 of I.P.C. is not sustainable in law. But at the same time, it is equally important to note that the appellant brought the licensed gun from his house and then he fired which hit over the abdomen of the deceased resulting into his death. Thus, we are of the considered view that looking to the facts and circumstances, this is a case of culpable homicide not amounting to murder which is punishable under Section 304 (part-I) of I.P.C.”

6. We have heard learned counsel for the parties.

7. Learned counsel for the State submitted that the view taken by the High Court is patently erroneous in law as the offence under Section 302, IPC was clearly made out. It was not a case of ‘fight’ as the deceased side did not cause any assault nor had any weapon. There was time for the accused to cool down. His conduct in going to his house and bringing the gun and thereafter firing from the said gun clearly Page 4 established that neither the firing was accidental, nor unintentional nor in the heat of sudden fight. Thus the offence was clearly a murder falling under Section 302, IPC and not falling in any of the exceptions. Reliance has been placed on judgment of this Court in State of Orissa Vs. Khaga Alias Khageswar Naik & Ors. 1

8. Learned counsel for the respondent supported the view taken by the High Court.

9. After due consideration of the rival submissions, we are of the view that the High Court has clearly erred in holding that the offence falls under Section 304 Part-I, IPC.

10. It is clear from the case of the prosecution mentioned above that the accused first slapped the complainant which was followed by verbal abuses and thereafter the accused brought the licensed gun and fired at the deceased, who died. It was, thus, a voluntary and intentional act of the accused which caused the death. Intention is a matter of inference and when death is as a result of intentional firing, intention to cause death is patent unless the case falls under any of the exceptions. We are unable to hold that the case falls under Exception 4 of Section 300, IPC as submitted by learned counsel for the respondent. Exception 4 is attracted only when there is a fight or quarrel which requires mutual

Page 5 provocation and blows by both sides in which the offender does not take undue advantage. In the present case, there is no giving of any blow by the complainant side. The complainant side did not have any weapon. The accused went to his house and brought a gun. There is neither sudden fight nor a case where the accused has not taken undue advantage. In State of A.P. v. Rayavarapu Punnayya 2, it was held:

In Bhagwan Munjaji Pawade v. State of Maharashtra 3,

Page 6 this Court held as under: “6. …. It is true that some ofthe conditions for the applicability of Exception 4 to Section 300 exist here, but not all. The quarrel had broken out suddenly, but there was no sudden fight between the deceased and the appellant. ‘Fight’ postulates a bilateral transaction in which blows are exchanged. The deceased was unarmed. He did not cause any injury to the appellant or his companions. Furthermore no less than three fatal injuries were inflicted by the appellant with an axe, which is a formidable weapon on the unarmed victim. Appellant, is therefore, not entitled to the benefit of Exception 4, either.” In In Sridhar Bhuyan v. State of Orissa 4, this Court held as under: