Criminal Appeal Nos. 2267-2268 of 2009  Page 1 of 4  

NON-REPORTABLE  

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)  

J U D G M E N T    

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  

have no hesitation in affirming conviction of the appellant for having  

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

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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

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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

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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.