1 (CRA No. 855 of 2019) 2025:CGHC:1144-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 855 of 20 19 (Arising out of judgment dated 31.12.2018 passed in Sessions Trial No. 15/2018 by the learned 1st Additional Sessions Judge, Ambikapur.) • Sukulram S/o Gangaram Manjhwar aged about 56 years, R/o Village Sayar, Thana Pariykhar, Chowki Kedma & District – Sarguja, Chhattisgarh. ---- Appellant (In Jail) Versus • State of Chhattisgarh, through: Station House Officer Police Station Udaypur, District-Sarguja, Chhattisgarh. ---- Respondent --------------------------------------------------------------------------------------- For Appellant : Mr. N.K. Malaviya, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For Respondent-State : Mr. Soumya Rai, Panel Lawyer. ----------------------------------------------------------------------------------------- DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (08.01.2025) Sanjay K. Agrawal, J. (1) This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned Digitally signed by HEERA LAL SAHU Date: 2025.01.09 17:22:28 +0530 2 (CRA No. 855 of 2019) judgment of conviction and order of sentence dated 31.12.2018, passed by the Court of learned First Additional Sessions Judge, Ambikapur, District- Sarguja (C.G.) in Sessions Trial No. 15/2018, whereby the appellant-accused has been convicted for offence under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.100/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for one month. (2) The case of the prosecution, in brief, is that on 04.11.2017 at 03:00 pm, in village Sayar Pariyakhar, Chowki – Kedma, Police Station – Udaypur, District Sarguja, the appellant assaulted his wife Ribi Bai (now deceased) by means of wooden stick, by which she suffered grievous injuries and died, thereby, committed the offence under Section 302 of IPC. (3) The further case of the prosecution, in a nutshell, is that on 05.11.2017, complainant Ramesh Manjhwar (PW-1) lodged a report to the effect that he lives in village Sayar and works in farming. On the second day of the incident i.e. 05.11.2017 at 6:00 am, he went to his brother-in-law's house to collect his wages. When there was no response upon reaching home and calling from the door, he saw that his mother-in-law, deceased Ribi Bai was sleeping. When he started coming back to his house, he met with the accused-appellant on the way who told him that he had come for a walk in the village yesterday 3 (CRA No. 855 of 2019) afternoon and when he returned home, he saw that the door was closed, his wife was sleeping with someone else and that person, seeing him fled away from the back door. When he asked his wife about that persons, she did not tell him. Then he assaulted her with a wooden stick on her hands, legs, buttocks and private parts and his wife fainted. After that, he went to sleep, and when he woke up in the morning, his wife was dead. In the morning he left the house and did not tell anyone anything. On being told by the accused, the complainant told his wife Somari Bai about the said incident, and then both of them went to the house of the accused where deceased Ribi Bai was lying dead. On his report, a FIR of 0/2017 was registered in the outpost Kedam District Sarguja, under Section 302 of IPC. After getting it numbered in the police station Udaipur, Merg No. 73/2017 vide Ex.P-16 and Crime No. 122/2017 under Section 302 of IPC vide Ex.P-1. Crime Details Form was prepared vide Ex.P-3. Inquest proceedings were conducted vide Ex.P/05. The dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/22), Dr. S.K. Tigga (PW- 12) opined that the cause of death seems to be shock due to internal bleeding caused by injury to the pelvic region and by fracture of the pelvic bone and the nature of death is homicidal. Thereafter, appellant-accused was arrested vide Ex.P/14 and his memorandum statement was recorded (Ex.P/8) pursuant to 4 (CRA No. 855 of 2019) which, seizure of wooden stick was made vide Ex.P/9 and sent for chemical examination to FSL. In FSL report (Ex.P-27) blood was not found on the seized wooden stick (Article-C), however, blood was found on clothes of the appellant and the deceased (Articles- E, F1 and F2). (4) The prosecution in order to prove its case examined as many as 16 witnesses and exhibited 28. Statement of the appellant under Section 313 of CrPC was recorded wherein he denied guilt, however, in support of his defence he has neither examined any witness nor exhibited any document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant herein for offence under Section 302 of IPC and sentenced him as mentioned herein-above against which this appeal has been preferred by the appellant-accused herein questioning the impugned judgment of conviction and order of sentence. (6) Learned counsel for the appellant submits that the learned trial Court is not justified in convicting the appellant for the offence under Section 302 of IPC. He further submits that the appellant is said to have assaulted his wife (deceased) in the spur of the moment, as the appellant had seen his wife (deceased) in a compromising position with some other person, 5 (CRA No. 855 of 2019) as such, there was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden anger and in heat of passion the appellant assaulted his wife, due to which she suffered grievous injuries and died. Hence, the case of the present appellant falls within the purview of Exception 1 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant for offence under Section 302 of IPC can be converted/altered to an offence under Section 304 Part-I of IPC and, further, since the appellant is in jail since 06.11.2017 i.e. more than 7 years, taking into consideration the period he has already undergone, the appellant-accused may be released from jail. Hence, the present appeal deserves to be partly allowed. (7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC. Exception 1 to Section 300 of IPC is not attracted in this case and it is not a case where conviction of the appellant under Section 302 of IPC requires to be altered to Section 304 Part-I of IPC, thus, the present appeal deserves to be dismissed. 6 (CRA No. 855 of 2019) (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/22), wherein it has been opined that the cause of death was due to internal bleeding caused by injury to the pelvic area and by fracture of the pelvic bone, which is duly proved by the statement of Dr. S.K. Tigga (PW-12), who has conducted the postmortem of the dead-body of the deceased. Accordingly, taking into consideration the postmortem report (Ex.P/22) and the statement of Dr. S.K. Tigga (PW-12), we are of the considered opinion that the death of deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. (10) Now, the next question would be whether the accused- appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative. (11) In the instant case, after considering the oral and documentary evidence available on record it is clear that the incident had taken place in the house of the appellant and the house in question the appellant and the deceased resided, no 7 (CRA No. 855 of 2019) other person was there and pursuant to the memorandum statement (Ex.P-8) of the appellant, seizure of the weapon of offence i.e. wooden stick was made vide Ex.P/9, invoking the provisions of Section 106 of the Indian Evidence Act it is clear that the appellant is the person who caused injuries to his wife, due to which the deceased died. As such, the finding recorded by the trial Court that the appellant has caused the injuries upon the deceased is based on evidence available on record and accordingly, we hereby affirm the finding recorded by the learned trial Court that the appellant-accused is the author of the crime in question. (12) The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant is covered within Exception 1 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I of IPC, as contended by learned counsel for the appellant ? (13) 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. 8 (CRA No. 855 of 2019) (14) 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. (15) Their Lordships of the Supreme Court in the matter of K.M. Nanavati v. State of Maharashtra1 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 1 AIR 1962 SC 605 9 (CRA No. 855 of 2019) 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, 10 (CRA No. 855 of 2019) 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.” (16) Recently, the Supreme Court in the matter of Dauvaram Nirmalkar v. State of Chhattisgarh2 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.3 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 2 Criminal Appeal No.1124 of 2022, decided on 2-8-2022 3 See the opinion expressed by Goddar, CJ. in R v. Duffy, (1949) 1 All.E.R. 932 11 (CRA No. 855 of 2019) 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. 13. 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 12 (CRA No. 855 of 2019) 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 Ashworth4 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.” (17) Furthermore, in the matter of Hansa Singh v. State of 4 1975 Criminal LR 558-559, and George Mousourakis’s elucidation in his paper ‘Cumulative Provocation and Partial Defences in English Criminal Law’ 13 (CRA No. 855 of 2019) Punjab5, 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 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.” (18) Reverting to the facts of the present case in light of the parameters laid down by the Supreme Court in K.M. Nanavati (supra) and Hansa Singh (supra), it is quite vivid that the appellant was forcefully driven to the crime which was not premeditated and the occasion had sprung up the moment, as on the date of offence, the appellant had seen his wife (deceased) 5 AIR 1977 SC 1801 14 (CRA No. 855 of 2019) with another person in a compromising position and had lost his self-control, and due to grave and sudden provocation, the appellant is said to have assaulted his wife, by which the deceased suffered grievous injuries on her pelvic region and died due to shock and internal bleeding. In our considered opinion, it was undoubtedly a grave and sudden provocation for the appellant which led him to commit the murderous assault on his wife. However, he must have had knowledge that the injuries caused by him are sufficient to cause death, which was caused on her body. As such, we are satisfied that the appellant’s 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. (19) Accordingly, in view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased but the injuries caused by him were sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-I of IPC and sentenced to undergo 10 years’ rigorous imprisonment. However, the fine sentence imposed by the learned trial Court shall remain intact. 15 (CRA No. 855 of 2019) (20) This criminal appeal is party allowed to the extent indicated herein-above. (21) Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge H.L. Sahu