Udia vs The State Of Madhya Pradesh

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 2267-2268 OF 2009

UDIYA ….. APPELLANT(S)

VERSUS

STATE OF MADHYA PRADESH ….. RESPONDENT(S)

JUDGMENT

SANJIV KHANNA, J.

By the impugned judgment dated July 07, 2006, the High

Court of Madhya Pradesh, affirming the judgment of the trial court,

has upheld conviction of the appellant – Udiya under Section 302 of

the Indian Penal Code, 1860 (for short, ‘IPC’) for murder of his

brother – Nakuda and sentenced him to imprisonment for life and

fine of Rs.1,000/-, in default of which he is to undergo rigorous

imprisonment for one month.

2. Having considered the testimony of Jeevni (PW-1), wife of deceased

Nakuda and sister-in-law of the appellant, who is an eye-witness, we Signature Not Verified Digitally signed by NEELAM GULATI Date: 2019.08.14 17:03:46 IST have no hesitation in affirming conviction of the appellant for having Reason:

caused death of Nakuda. Jeevni (PW-1) has testified that on July

Criminal Appeal Nos. 2267-2268 of 2009 Page 1 of 4 10, 1999, at about 10.00 p.m., while she was in her house, she

heard her husband raising alarm. Her husband was returning from

work and was at a short distance from home. She had seen the

appellant assaulting Nakuda with a stone. Nakuda had also told her

that the appellant had assaulted him with a stone. Jeevni (PW-1)

had thereupon proceeded to the house of one Laxman and took him

to the place of incident. Villagers had thereafter gathered at the

place of incident. PW-1 had lodged the police report Exhibit P/1. In

fact, while issuing notice in this appeal vide order dated February 23,

2009, the same was confined to the nature of offence and quantum

of punishment only. We would, therefore, now address the question

on nature of offence and quantum of punishment.

3. Medical evidence in the form of Post Mortem Report (Ex.P/8),

proved by Dr. Nirmal Kumar Chaudhary (PW-6), opines that the

deceased had suffered contusions and a fracture on the left

temporal and maxillary bones, and that the death was on the

account of the head injuries.

4. However, we are inclined to accept the plea and contention that the

present case would fall under Exception 4 of Section 300 IPC. This

is not a case of premeditated attack or violence actuated by a motive

and previous feud. It was a case of sudden fight in which the two

brothers got involved and in the grapple the appellant had picked up

Criminal Appeal Nos. 2267-2268 of 2009 Page 2 of 4 a stone and had hit the deceased Nakuda. Birji (PW-3) has testified

that Jeevni (PW-1) had come to his house and stated that the

appellant and Nakuda were fighting. Similar assertion was made by

Laxman (PW-4) who has stated that Jeevni (PW-1) had informed

that the two brothers were fighting and that they must separate

them. Appellant had not come armed to the spot with a weapon of

offence. No witness has testified as to any past enmity and acrimony

between the two brothers. In fact, Jeevni (PW-1) had stated that

earlier a civil suit had been filed by her deceased husband and the

appellant against two other persons and that there was no previous

enmity between the two brothers though they sometimes used to

quarrel and thereafter would become friendly. When Jeevni (PW-1)

had approached the deceased Nakuda, he was in a position to

speak and had stated that the appellant had given him a beating with

a stone, albeit he did not give any reason for the violence. Post

Mortem Report no doubt refers to fracture of the third and fourth rib

but these could have been caused when Nakuda had fallen down.

No external injuries were present and noticed in the rib area.

Laxman (PW-4) has deposed that they had proceeded to the

appellant’s house. Appellant, who was present, was asked to come

out and was thereupon confronted and informed that Nakuda had

expired and they would be filing a police report. Then, the appellant

on the pretext of easing himself had fled from the spot. This would

Criminal Appeal Nos. 2267-2268 of 2009 Page 3 of 4 indicate that the appellant was not aware that he had killed his

brother, Nakuda. (Even otherwise, there is hardly any evidence to

suggest and show that the injuries caused were intended, so as to

indicate intention of causing bodily injury as is sufficient in the

ordinary course of nature to cause death).

5. Accordingly, for the reasons stated above, we would convert the

conviction of the appellant from Section 302 to Part-I of Section 304

IPC. On the question of sentence, we are informed that the

appellant has already undergone rigorous imprisonment for over six

years, prior to his release on bail, as directed vide order dated

November 30, 2009. The offence was committed in the year 1999.

In the aforesaid circumstance, we are inclined to modify the

sentence to the period already undergone, which would include

default rigorous imprisonment for a period of one month in lieu of

fine of Rs.1,000/-.

6. The appeals are partly allowed in the aforesaid terms.

.................................J. (INDU MALHOTRA)

.................................J. (SANJIV KHANNA) NEW DELHI;

AUGUST 14, 2019.

Criminal Appeal Nos. 2267-2268 of 2009 Page 4 of 4