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PETITIONER: MAHESH

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       28/08/1996

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) THOMAS K.T. (J)

CITATION:  JT 1996 (7)   644        1996 SCALE  (6)315

ACT:

HEADNOTE:

JUDGMENT:                 THE 28TH DAY OF AUGUST, 1996 Present:                Hon’ble Dr. Justice A.S.Anand                Hon’ble Mr.Justice K.T.Thomas H.L.Agrawal, Sr.Adv.  and Ashok  Kumar Gupta,  Adv. with him for the appellant U.N.Bachawat, Sr.Adv.,  Prashant Kumar  and Uma  Nath Singh, Advs. with him for the Respondents                          O R D E R The following Order of the Court was delivered: Mahesh V. State of Madhya Pradesh                          O R D E R      The appellants  was tried  for an offence under Section 302 IPC  for the  murder  of  Krishna  Kumar  on  24.7.1983. According to  the prosecution  case, the deceased along with PW-2 Purshottam and PW-6 Badda, were working as agricultural labourers on  the  field  of  Purshottam  Sharma,  PW-1.  On 24.7.1983 at  about 1.00  p.m. while  the deceased and other labourers were  ploughing the  field belonging  to PW-1, the appellant came  there for  grazing his cattle. As the cattle entered the field of Purshottam Sharma, PW-1, where the crop of Soyabean  was standing, the deceased and PW-2 told him to take his cattle away and not let his cattle damage the crop. The appellant,  however, did  not  pay  any  heed  to  their request and  insisted that he would graze the cattle in that field only.  An altercation  ensued between the deceased and the accused.  Thereafter, the  appellant dealt a pharsa blow on the  head of  Krishna Kumar.  On  receipt  of  the  blow, Krishna  Kumar   fell  down   on   the   ground   and   died instantaneously. PW-2 and PW-6 rushed to inform Shri Sharma, PW-1, who  arrived at the spot. The First Information Report was lodged  by PW-1  Purshottam  Sharma  at  police  station Narsinghpur  at  about  3.00  p.m.  on  the  same  day.  The Investigating Officer,  Shri  Prakash  Chand  Sonkar,  PW-9,

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after  registration  of  the  FIR,  came  to  the  place  of occurrence and  after preparing the inquest report, sent the dead body  of Krishna  Kumar for  post mortem examination to the District  Hospital, Narsinghpur,  where the  autopsy was performed by  Dr. M.R.  Khan, PW-10.  The  Doctor  found  an incised wound  on the right parietal region with fracture of the same  and damage  to the  brain. In  the opinion  of the Doctor, the death of Krishna Kumar was caused as a result of that injury and the injury was found to be sufficient in the ordinary course  of nature to cause death. The appellant was arrested on  26.7.1983 and  while  in  custody,  he  made  a disclosure statement  under Section  27 of the Evidence Act, leading to  the recovery  of a  pharsa from  the roof of the upper story  of his  house. The pharsa was found to be blood stained and  according to  the  chemical  examiner  and  the serologist, the blood found thereon was of human origin. The appellant  was  sent  up  for  trial.  After  recording  the evidence on  behalf of  the prosecution  and  examining  the appellant under  Section 313  Cr.P.C., the  trial court vide judgment dated  3.8.1984 came  to the  conclusion  that  the evidence given  by PW-2 Purshottam Mehra and PW-6 Badda, the two eye-witnesses of the occurrence, was cogent, trustworthy and reliable.  The trial  court also  found that the medical evidence provided  by Dr.  Khan, PW-10 lent corroboration to their occular  testimony. The trial court on appreciation of the evidence  found that the appellant had caused the injury with the  pharsa  on  the  head  of  the  deceased  when  he prevented the appellant from grazing his cattle in the field of  Purshottam,   PW-1.  The  trial  court,  however,  after rejecting the  plea of  self defence  found that the case of the appellant  was covered by Exception-4 to Section 300 IPC and after giving reasons in support of that conclusion, held the appellant  guilty of an offence under Section 304 (Part- I) IPC  and acquitted  him of  the offence under Section 302 IPC. The  appellant was sentenced to two years RI and to pay a fine  of Rs.500/-  and in  default of  payment of fine, to undergo further  RI for  four months  for the  offence under Section 304(Part-I)  IPC.  The  State  preferred  an  appeal against the acquittal of the appellant for the offence under Section 302 IPC. The High Court vide judgment dated 7.9.1992 found that  the  offence  committed  by  the  appellant  was punishable under  Section 302  IPC and that the recording of his conviction  for an  offence under  Section 304  (Part-I) IPC, was  wrong and  not justified.  Consequently, the State appeal was  allowed and  the appellant  was convicted for an offence under  Section 302  IPC  and  sentenced  to  undergo imprisonment for  life. On  special leave being granted, the appellant is before us.      We have  heard learned  counsel  for  the  parties  and perused the record.      In our  opinion the  appreciation of  evidence  by  the trial court as well as the High Court, is sound, correct and proper. The  evidence given  by PW-2  and PW-6 regarding the occurrence and  the manner  of assault is cogent, consistent and has  impressed us  as trustworthy.  Their  evidence  has remained unshaken  in the  cross-examination and nothing has been pointed  out which  may in  any manner  discredit their testimony. The  evidence of these eye-witnesses coupled with the recovery of pharsa and the medical evidence given by Dr. Khan, PW-10,  un-mistakably connects  the appellant with the connects the  appellant with the crime, i.e., the assault on the deceased  which resulted  in his  death.  The  question, however remains about the nature of the offence.      From a  perusal of  the evidence, we find that when the appellant arrived  along with  the cattle at the field there

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was no premeditation for the assault. At the spot, there was an altercation  between the parties and in the sudden fight, after the  deceased objected  to the  grazing of the cattle, when possibly  hot  words  or  even  abuses  were  exchanged between the  parties, the  appellant gave a single blow with the pharsa on the head of the deceased. The statement of the appellant and  the suggestions  given on  his behalf  to the prosecution witnesses  that there  was an attempt to assault the deceased  with a  Parena, which  was with  the deceased, does not  appear to  be  improbable.  Thus,  placed  as  the appellant  and   the  deceased  were  at  the  time  of  the occurrence, it  appears to  us that  the appellant assaulted the deceased  in that  sudden fight and after giving him one blow took to his heals. He did not cause any other injury to the deceased  and therefore  it cannot be said that he acted in any  cruel or  unusual manner.  Admittedly,  he  did  not assault PW-2  or PW-6  who were  also present along with the deceased and  who had  also requested  the appellant  not to allow his  cattle to  graze  in  the  field  of  PW-1.  This fortifies our  belief that  the assault  on the deceased was made during  a sudden  quarrel without any premeditation. In this fact  situation, we are of the opinion that Exception-4 to Section  300 IPC  is clearly attracted to the case of the appellant and the offence of which the appellant can be said to be  guilty would  squarely fall under Section 304(Part-I) IPC. The trial court, under the circumstances, was justified in convicting  him for  the said offence and the High Court, in our  opinion, fell  in error  in interfering  with it and that too  without dispelling any of the reasons given by the trial court.  The judgment  of the High Court convicting the appellant for  an offence  under Section  302 IPC  cannot be sustained and  we  accordingly  set  it  aside  and  instead convict the  appellant for  the offence  under  Section  304 (Part-I) IPC.      We, however,  find that  the sentence  of two years RI, and fine of Rs.500/- for the offence under Section 304(Part- I)  IPC,  as  recorded  by  the  trial  court,  was  grossly inadequate and  un-reasonable.  Considering  the  facts  and circumstances of the case, in our opinion proper sentence in the case  would be  for the  appellant to  suffer RI  for  a period of  six years,  besides payment of Rs.1,000/- as fine for the offence under Section 304(Part-I) IPC. In default of payment of  fine, the appellant shall further undergo RI for four months.      The appeal, therefore, succeeds to the extent indicated above and is disposed of.