Chaitram Dhurwa vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC has been preferred by the appellants against the impugned judgment of conviction and order of sentence dated 03.07.2014 passed by the learned Additional Sessions Judge (FTC) North Bastar, Kanker (Chhattisgarh), in Sessions Trial No.39/2013 by which appellants herein have been convicted for offences under Section 302 read with Section 34 of the IPC and sentenced to undergo imprisonment for life and fine of ₹ 200/-; in default of payment of fine to undergo additional R.I. for six months.

Case of the prosecution, in short, is that appellant No.2, Mangturam, deceased-Santlal and Santuram (PW-1) were real brothers. On 02.01.2013 between 4:00 pm to 5:00 pm at village – Badetopal Platpara, Police Station Antagarh appellants herein in furtherance of common intention assaulted deceased-Santlal on his head and back by stone and wooden stick by which he suffered grievous injuries and succumbed to death and thereby, committed the aforesaid offence.

Further case of the prosecution is that appellant No.2 had seen his brother Santlal-deceased in compromising position with his wife-Devki Bai (PW-5) on account of which appellant No.2 and his domestic worker i.e. appellant No.1 both assaulted Santlal-deceased by stone and wooden stick by which he suffered grievous injury and died. The said offence was reported by Santuram (PW-1) to the Police Station, Antagarh pursuant to which Merg Intimation (Ex.P/1) and FIR (Ex.P/6) were registered. Inquest proceedings were conducted vide Ex.P/3 and dead body was sent for postmortem and brief postmortem report and detailed postmortem report are exhibited vide Ex.P/20 & Ex.P/19 respectively. Postmortem was conducted by Dr. Shital Dugga (PW-9) and it was opined in the postmortem report that cause of death is due to head injury and nature of death is homicidal. Pursuant to memorandum statement of appellant No.1, Chaitram Dhurwa, (Ex.P/8) stone was recovered vide Ex.P/9 and also on the basis of memorandum statement of appellant No.2, Mangturam, (Ex.P/11) wooden stick was recovered vide Ex.P/12. The seized articles were sent for the chemical analysis, but FSL report has not been brought on record for the reasons best known to the prosecution.

After due investigation, appellants were charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused abjured their guilt and entered into defence stating that they have not committed the offence.

In order to bring home the offence prosecution has examined as many as 14 witnesses and exhibited 32 documents, whereas the appellants in support of their defence have neither examined any witness nor exhibited any document.

The learned trial Court after appreciating the oral and documentary evidence available on record convicted the appellants for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence.

Mr. Jai Prakash Shukla, learned counsel for the appellants, submits that the trial Court is absolutely unjustified in convicting the appellants for the aforesaid offence and, as such, the impugned judgment is liable to be set aside. He further submits that since appellant No.2 had seen his wife-Devkibai (PW-5) with the deceased-Santlal in compromising position/objectionable position, on account of grave and sudden provocation the appellants assaulted the deceased, due to which he suffered grievous injuries and died. Hence, the case of the present appellants falls within the purview of Exception 1 to Section 300 of IPC and the act of the appellants is culpable homicide not amounting to murder, therefore, it is a fit case where the conviction of the appellants for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 (Part-I or Part-II) of IPC. Thus, the present appeal deserves to be allowed in full or in part.

On the other hand, Mr. Wasim Miyan, learned State counsel, would support the impugned judgment and submit that prosecution has been able to prove the offence beyond reasonable doubt and, therefore, the instant appeal deserves to be dismissed.

We have heard the learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

The first question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded the finding in affirmative on the basis of postmortem reports (Ex.P/19 & Ex.P/20) which are proved by Dr. Shital Dugga (PW-9) which is the finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the next question is, whether the appellant is author of the crime in question?

In the instant case, Devkibai (PW-5) wife of appellant No.2 though partly supported the case of the prosecution, but has clearly stated in her statement before the Court that deceased was her husband's brother and on the date of offence she was in compromising position with the deceased-Santlal, which her husband had seen after coming to the house and thereafter, he slapped the deceased and appellant No.1 also slapped him by which he died. Pursuant to the memorandum statement of appellants stone and wooden stick were seized by which they have assaulted the deceased. After considering the statement of Devkibai (PW-5) and seizure made pursuant to the memorandum statements of appellants, we hold it is the appellants who have assaulted the deceased by which he suffered grievous injuries and died.

The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellants is covered within Exception 1 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and their conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellants ?

It is profitable here to note Exception 1 to Section 300 of the IPC, which states as under: -

“Exception 1.—When culpable homicide is not murder.— Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

Exception 1 to Section 300 of the IPC applies when due to grave and sudden provocation, the offender, deprived of the power of self-control, causes the death of the person who gave the provocation. Exception 1 also applies when the offender, on account of loss of self-control due to grave and sudden provocation, causes the death of any other person by mistake or accident.

Their Lordships of the Supreme Court in the matter of K.M. Nanavati v. State of Maharashtra AIR 1962 SC 605 laid down the conditions which have to be satisfied for the exception to be invoked which are as under:-

(a) the deceased must have given provocation to the accused;

(b) the provocation must be grave;

(c) the provocation must be sudden;

(d) the offender, by the reason of the said provocation, should have been deprived of his power of self-control;

(e) the offender should have killed the deceased during the continuance of the deprivation of power of self-control; and

(f) the offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident.

Their Lordships held that for determining whether or not the provocation had temporarily deprived the offender from the power of self-control, the test to be applied is that of a reasonable man and not that of an usually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. Their Lordships in paragraphs 84 & 85 of the report observed as under: -

“(84) Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision : it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.

(85) The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S. 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.”.

Very recently, the Supreme Court in the matter of Dauvaram Nirmalkar v. State of Chhattisgarh Criminal Appeal No.1124 of 2022, decided on 2-8-2022; AIR 2022 SC 3620 relying upon K.M. Nanavati (supra) held in paragraphs 12 & 13 as under: -

“12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation. [See the opinion expressed by Goddar, CJ. in R v. Duffy, (1949) 1 All.E.R. 932] The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self-control. The second part emphasises that the offender’s reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim’s abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused’s retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.

Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused’s reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. This has been aptly summarised by Ashworth [1975 Criminal LR 558-559, and George Mousourakis’s elucidation in his paper] in the following words:

“[T]he significance of the deceased’s final act should be considered by reference to the previous relations between the parties, taking into account any previous incidents which add colour to the final act. This is not to argue that the basic distinction between sudden provoked killings and revenge killings should be blurred, for the lapse of time between the deceased’s final act and the accused’s retaliation should continue to tell against him. The point is that the significance of the deceased’s final act and its effect upon the accused – and indeed the relation of the retaliation to that act – can be neither understood nor evaluated without reference to previous dealings between the parties.”

Exception 1 to Section 300 recognises that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation.”

Furthermore, in the matter of Hansa Singh v. State of Punjab AIR 1977 SC 1801, where the accused appellant therein on seeing G committing the act of sodomy on his son, lost his power and self-control which led him to commit the murderous assault on G and where the accused was convicted under Section 302 of the IPC, their Lordships of the Supreme Court found the murder to be committed during grave provocation and altered the conviction to one under Section 304 Part-II of the IPC. Their Lordships observed as under: -

“We, however, feel that the occurrence took place while the deceased was committing sodomy on Haria and that gave such a sudden and grave provocation and ‘Cumulative Provocation and Partial Defences in English Criminal Law’ annoyance to the appellant which impelled him to assault the deceased. For these reasons we are satisfied that the case of the appellant falls clearly within the purview of Section 304, Part II of the Indian Penal Code. The appellant on seeing the deceased committing the act of sodomy on his son, lost his power and self-control and it was undoubtedly a grave and sudden provocation for him which led him to commit the murderous assault on the deceased.”

Reverting to the facts of the present case in light of principles of law laid down by their Lordships of Supreme Court in K.M. Nanavati (supra), Hansa Singh (supra) and Dauvaram Nirmalkar (supra), it is quite vivid that on the date of offence, appellant No.2 had seen his wife -Devkibai (PW-5) with the deceased in compromising position / objectionable position, on account of which appellant No.2 assaulted the deceased with the help of appellant No.1 who was working in the house of appellant No.2 and was also present there. Since appellant No.2 had seen his wife Devkibai (PW-5) in compromising position / objectionable position with deceased-Santlal, he lost his self control and in sudden and grave provocation inflicted injuries (lacerated wound) to the deceased by wooden stick and stone by stone by which Santlal died. In our considered opinion, it was undoubtedly a grave and sudden provocation for appellant No.1 which led him to commit the murderous assault on deceased. However, they must have had knowledge that the injuries caused by them are sufficient to cause death, which was on his head and back. As such, we are satisfied that the appellants' case would clearly fall within the purview of Exception 1 to Section 300 of the IPC and the offence would fall under Section 304 Part-I of the IPC.

In view of the aforesaid discussion, the conviction of the appellants for offence punishable under Section 302 of IPC read with Section 34 of the IPC as well as the sentence of life imprisonment awarded to them by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellants to cause death of the deceased but the injuries caused by them were sufficient in the ordinary course of nature to cause death, the appellants are convicted for offence punishable under Section 304 Part-I of IPC. Since the appellants are in jail from 05.01.2013 more than 10 years, taking into consideration the period they have already undergone, we award them sentence already undergone by them, but the fine amount imposed by the learned trial Court shall remain intact. The appellants are in jail. We direct that the appellants be released from jail forthwith, if not required in any other matter.

This criminal appeal is party allowed to the extent indicated herein- above.