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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA MANIPUR, TRIPURA, MIZORAM AND
ARUNACHAL PRADESH)
CRIMINAL APPEAL NO.156 (J) OF 2005.
1. Mustt. Nigar Sultana Borah
W/O, Late Rejak Bora,
Resident of 3 No. Dagaon,
P.S. Bokakhat.
2. Mustt. Farham Sultana Borah
D/O, Late Rejak Bora,
Resident of 3 No. Dagaon,
P.S. Bokakhat.
3. Mustt. Robinaj Sultana Borah
D/O, Late Rejak Bora,
Resident of 3 No. Dagaon,
P.S. Bokakhat.
… APPELLANTS
-Versus-
State of Assam.
…RESPONDENTS
P R E S E N T
HON’BLE THE CHIEF JUSTICE
THE HON’BLE MR. JUSTICE A.C. UPADHYAY
For the appellants : Mr. I.A. Talukdar, Amicus Curiae
For the Respondent : Mr. K.A. Mazumdar, Addl. P.P.
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Date of hearing : 7.2.2012.
Date of Judgment : 25.4.2012
JUDGMENT AND ORDER
(A.C. Upadhyay, J)
1. The appellants above named were put on trial, for
alleged commission of offence under Section 302/201/34
IPC, in Sessions Case No.164/2004, in the Court of learned
Sessions Judge, Golaghat. On conclusion of the trial, the
appellants above named were convicted under Section
302/201 IPC read with Section 34 IPC and each of them
were sentenced to imprisonment for life and also to pay a
fine of Rs.2,000/- each in default to undergo RI for one year
each, for commission of offence under Section 302/34 IPC.
They were further sentenced to suffer Rigorous
Imprisonment for five (5) years and also to pay a fine of
Rs.1,000/-, each in default to undergo Rigorous
Imprisonment for six (6) months, for commission of offence
under Section 201/34 IPC.
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2. The prosecution story, in brief, is that on 9.8.2004 at
about 12 P.M. at No.3, Dagaon, under Bokakhat P.S., the
police recovered dead body of Md. Rezak Borah from the
premises of his house by digging a pit. It was alleged that
the accused above named committed the murder of Rezak,
prior to 9.8.2004 and concealed the dead body in their
premises by digging a pit, for screening themselves from
legal punishment. On receipt of the FIR to the effect
aforesaid, a case was registered by the Bokakhat Police and
investigation was launched.
3. On completion of the investigation, the Investigating
Officer submitted charge sheet against the accused
appellants named above, alleging commission of offence
under Section 120 (B)/302/201 IPC.
4. The case was committed to the Court of Session at
Golaghat for trial. During the trial, the learned Sessions
Judge framed charges under Section 302/201/34 IPC,
against the accused appellants severally and individually. On
reading over and explaining the charges aforesaid, all the
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accused-appellants pleaded not guilty and claimed to be
tried.
5. The prosecution side examined as many as 15
witnesses to establish the charges against the accused
appellants. On closing of the prosecution evidence, the
statements of the accused appellants were recorded.
Accused-appellants, namely, Must. Robinaj Sultana Borah,
in her statements under Section 313 CrPC, took the stand of
total denial and further stated that on 28.7.2004, she had
gone to Jorhat and Golaghat with one Jasmine Khan,
daughter of Md. Bipul Khan and she returned home only on
9.8.2004. Therefore, she did not know anything about the
occurrence.
However, the accused-appellant Mustt. Nigar Sultana
Borah, wife of the deceased admitted that she had buried
the dead body of her husband in the pit and further stated
that on 28.7.2004 her elder daughter accused Rabinaj had
gone to Jorhat and Golaghat with Bipul Khan’s daughter
Jasmine Khan and Rabinaj came back home only on
9.8.2004 and that she was not present at home at the time
of the incident.
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Accused Nigar Sultana stated that on 31.7.2004, at
night her deceased husband had physical relationship with
her younger daughter, Farhan Sultana Borah. When she
tried to save her, the deceased armed with Dao tried to
chop her daughter, but she could manage to snatch the Dao
and save the life of her daughter. Thereafter, the deceased
husband by taking the Dao in his hand charged at her in
order to assault her. At that she pushed him on the ground.
Then she went outside the house. After a little while, when
she came back home and enquired about her husband, she
found her husband was lying dead with blood oozing out
from his body. Therefore, by taking into consideration her
daughter’s future, both she and her daughter Farhena
dragged the dead body and buried it in the pit dug, for
keeping beetle nuts.
6. Accused appellant Mustt. Farhan Sultana Borah, in
her statement under Section 313 CrPC stated that on
28.7.2004, her elder sister accused appellant Rabinaj
Sultana had gone for traveling with Bipul Khans daughter
Jasmine and she returned only on 9.8.2004.
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Appellant Farhana, further stated that on
31.7.2004, when her father, the deceased demanded
physical relationship with her, she resisted him, but then
the deceased armed with Dao threatened her. At that,
her mother snatched the Dao from the deceased.
Thereafter, the deceased father once again charged at her
mother taking the Dao in his hand, in order to cut her.
Then, her mother pushed the deceased with force and went
outside. Sometime, after that they found that father had
already died. After the death of her father, they dug the pit
outside the house and buried the dead body.
7. The accused-appellants did not adduce any evidence
in defence. Jasmine was also not examined, to prima-facie
prove the plea of alibi. On conclusion of the trial, learned
Sessions Judge, convicted and sentenced the accused-
appellants as aforesaid giving rise to this appeal.
8. Mr. I.A. Talukdar, learned counsel for the appellants
submitted that the accused-appellants in their statement
under Section 313 CrPC admitted the commission of
offence. However, the offence was committed by the
accused-appellants, when the deceased had tried to molest
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his own daughter, therefore the accused persons deserve
to be leniently dealt with.
9. Learned counsel for the appellants pointed out that
when family members of the deceased themselves had
killed the head of the family, it could not have been without
reasons. If the statement given by the accused-appellants is
to be believed then the deceased was killed by the accused-
appellants in order to save their own life, as they were
challenged by the deceased with a Dao in his hand. Learned
counsel for the appellants submitted that in the peculiar
facts and circumstances of the case, the accused-appellants
deserve to be leniently dealt with.
10. Mr. K.A. Mazumdar, learned Addl. P.P. on the other
hand submitted that the accused appellants committed the
murder cool bloodedly and buried the dead body in the
premises in order to cause dis-appearance of evidence and
to screen the offender. Learned counsel pointed out that if
such was the reason for causing death of the deceased ,
the accused should have come forward to prima-facie
prove establish such a plea . According to, learned counsel
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for the State respondent, defence plea is nothing but an
afterthought to gain sympathy of the Court.
11. In order to appreciate the argument advanced by the
learned counsel for the appellants, as well as the
respondent-State, it would be apposite to discuss herein
below the core of the prosecution evidence.
12. Dr. Aboni Kumar Barthakur, (P.W10) carried out the
post mortem examination of the deceased Md. Rezak Borah
and found the following injuries –
External appearance :
Wearing a white Pyjama covered with soil. Body is grossly swollen. Skin is pilled off from the body except over the area covered by Pyjama. Sockets of the eye balls are empty due to putrefactive changes. Hair present at the temporal region 1” in length, grey colour partly, otherwise appears bold, Rigormotis absent. Very foul smell emanated from the body. Injuries : Incised cut over the left side of the neck, injuries. 1. Incised cut over the left side of the neck, 10 cm x 4
cm x bone deep with fracture of left clavicle. The muscles over the left side of the neck and vessels cut over the injury.
2. Incised cut over the left shoulder joint, 2.5 cm x
1.5 cm x muscle deep.
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3. 3.4 incised cuts over the left arm each 2.5 cm x 1.5 cm x muscle deep.
4. Incised cut over left elbow lateral aspect, 3 cm x
2cm x muscle deep.
5. Incised cut over the left wrist ulna border that cuts through half the girth of the wrist. Two carpet bones are cut through.
6. Incised cut over the sternum, 2.5 cm x 1 cm x
bone deep.
7. Incised cut over the left foot dorsal aspect two in numbers, each 2.5 cm x 1 cm x bone deep. One of these also cuts through three middle metatarsal bones at the dossal aspect.
8. Incised cut over parietal area of head, 3 cm x 1 cm
x bone deep. The left parietal bone is also cut underneath with the formation of gap of 1.25 x 2.5 cm. There is laceration of meanings over this.
9. The brain is liquefied into a dark colour jelly like
other organs are healthy.
All the injuries described are antemortem. The injury No.1 is caused by heavy sharp weapon. The injury NO.1,7 and 8 are grievous in nature. Time since death within about 10 days.” Opinion Death in this case was due to shock and haemorrhage as a result of multiple injuries sustained by the deceased .
13. PW-1, Md. Mukul Khan, who is a Tailor by profession
knew both the accused-appellants as well as the deceased,
as their neighbour. On 10.8.2004, when P.W.1 was in the
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Tailoring Shop at Bokakhat Chariali, at about 2 P.M. he got
the information that one dead body was recovered in the
premises of the accused appellants by digging a pit. P.W.1
stated that he could identify the dead body of Md. Rajak
Borah, the husband and father of the accused appellant
respectively. PW-1 also signed the inquest report exhibit-1,
as a witness. PW-1 further stated in his deposition that
when he had enquired accused-appellant Nigar sultana
about the deceased, a few days prior to recovery of dead
body, he was informed by the accused-appellant that the
deceased had gone to Sibsagar. Thereafter, he saw the
dead body of the deceased in his own premises. PW-2, who
is a mason by profession, knew both accused-appellants, as
well as the deceased. PW-2 also corroborated the testimony
of PW-1 regarding the recovery of dead body from the
premises of the deceased.
14. PW-3, Dr. Niren Kakaty was M&H.O., Bokakhat
Hospital on 9.8.2004. On that day, as per the direction of
Sub Divisional Medical Officer, PW-3 visited the residence of
accused Nigar Sultana at Dagaon along with the Officer-in-
Charge of Bokakhat Police Station. According to PW-3, the
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decomposed dead body was dug out in his presence.
Accused-appellant Nigar Sultana acknowledged the dead
body, to be of her husband. PW-3, saw mark of injury on
the neck, head and in the hand of the deceased. The body
was kept tied with a rope. PW-3 stated to have signed the
inquest report prepared by the Police Officer.
PW-4, Dr. Syed Tabique Hussain, who was
also posted at Bokakhat CHC, happened to accompany Dr.
Niren Kakaty, PW-3, to the place of occurrence. PW-4 also
corroborated the testimony of PW-3. Md. Matiur Rahman
PW-5, deposed that the deceased as well as the accused
appellants were his neighbours. During the time of
occurrence when he did not see the deceased Rejek Bora in
his shop, he asked accused Nigar Sultana as to whether the
accused had gone. She replied to PW-5 that the deceased
had gone to see his mother. PW-5 did not see the deceased
for about 6 to 7 days in his shop. Thereafter, one day he
heard that the police discovered the dead body of the
deceased in the premises of the accused-appellant. He
came to the place from where the dead body was dug out.
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PW-5 stated that all the accused-appellants identified the
dead body.
15. PW-6, Sri Liladhar Mirdha, a daily labourer by
profession, was engaged by accused-appellant Nigar
Sultana to dig a pit to keep beetle nuts. Accordingly, as per
instruction of accused Nigar Sultana, P.W.6, dug a pit of the
sized of 5 ft. long 3 ft. wide and 2 and 1/2ft deep for
putting beetle nuts. But according to PW-6 after he had dug
the pit, no beetle nut was put in it in his presence. PW-7,
Shri Chandan Tanti and PW-8, Shri Debraj Tanti, a Municipal
Sweeper, deposed to have dug the pit as directed by the
police and stated to have found a dead body of a male
person in the pit. PW-12, Md. Ohid Rahman, PW-13 and
PW-14 deposed that the police took them to the house of
the accused-appellant in connection with the murder case of
Rajek Bora. The aforesaid witnesses further stated that the
police seized one Dao and one axe in his presence. On
being produced by accused Nigar Sultana, the witness also
identified material exhibits in the Court.
16. On careful scrutiny of the entire evidence on record as
discussed above, vis-à-vis, the statement of the accused
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recorded under Section 313 CrPC, it appears that there was
no eye witness to the occurrence and the entire prosecution
story rest on circumstantial evidence coupled with the
admission of the accused appellants in the statement under
Section 313 CrPC.
17. In Hanumant Govind Nargundkar and
Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343),
the Apex Court observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such s to show that within all human probability the act must have been done by the accused."
18. A reference may be made to a later decision in
Sharad Birdhichand Sarda v. State of
Maharashtra, (AIR 1984 SC 1622). Therein, while
14
dealing with circumstantial evidence, it has been held that
onus was on the prosecution to prove that the chain is
complete, and the infirmity of lacuna in prosecution cannot
be cured by false defence plea. In the words of the Apex
Court the following conditions precedents, must be fully
established, before conviction could be based on
circumstantial evidence they are:
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except the one to be proved; and
(iv) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
19. These aspects were also highlighted in State of
Rajasthan v. Raja Ram (2003 (8) SCC 180), State of
15
Haryana v. Jagbir Singh and Anr. (2003 (11) SCC
261) and Kusuma Ankama Rao v State of A.P.
(2008) 13 SCC 257.
20. Keeping in view the principle laid down by the
Hon’ble Supreme Court in the aforesaid decision it will have
to been seen whether the prosecution has been able to
establish the charges against the accused appellants beyond
all reasonable doubts, on the basis of the circumstantial
evidence. In the present case, the prosecution could prove
the following circumstances against the accused-appellant.
They are as follows –
1) That the deceased Md. Rezak Borah, is the husband of
accused-appellant Mustt. Nigar Sultana Borah and
father of accused Mustt. Farhan Sultana Borah and
Md. Robinaj Sultana Borah died due to shock and
hemorrhage as a result of multiple injuries sustained
by him.
2) That the dead body of Rezak Borah was kept
concealed by digging a pit in the campus of the house
of the accused-appellant. The dead body of the
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deceased was identified by the accused appellants as
well as the local villagers after it was exhumed from
the pit.
3) The dead body was discovered by police by digging
earth on 9.8.2004 in presence of the witnesses and the
accused appellants.
4) That the accused appellant had dug the pit by
engaging labouer Liladhar Mirdha (PW-6) inside the
campus of her residence prior to the recovery of the
dead body.
5) The neighbouring witnesses namely PW-1, 2 and 5 did
not see the deceased in his shop house prior to the
date of recovery of the dead body.
6) On enquiry made by the witnesses about the
deceased, accused wife Mustt. Nigar Sultana Borah
falsely informed them that deceased had gone at
Sibsagar to see his mother.
7) The deceased was found missing from the house for
about 8 to 15 days prior to the recovery of the dead
body.
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8) The weapons of offence i.e. axe and Dao were seized
by police on being on being produced by the accused
Mustt. Nigar Sultana Borah.
9) Appellant Nigar Sultana Borah and accused /appellant
Farhana admitted in her statement under section 313
of Cr.P.C. that the death of her husband inside the
house and concealment of the dead body in the pit
dug for keeping the beetle nut with.
10) Multiple grievous injuries caused by sharp
weapon were found on the dead body of the
deceased.
21. From the above circumstances, it clearly transpires
that the accused-appellant above named could not discredit
the testimony of prosecution witness, nor adduced any
evidence to support their stand. In the statement recorded
under Section 313 Cr.P.C, the accused Mustt. Nigar Sultana
Borah stated that her daughter, Mustt. Robinaj Sultana
Borah was not at her residence at the time of occurrence.
She stated that on the night of 31.7.2004, accused under
the influence of alcohol established physical relationship
with her younger daughter accused Farhana. In such a
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situation, when she tried to save her, the deceased caught
the neck of her daughter and threatened with dire
consequences by flaunting Dao. According to the accused-
appellant, Nigar Sultana , she somehow managed to snatch
away the Dao from the hands of the deceased by following
him. At that accused, Nigar Sultana Borah, admitted to have
pushed the deceased away after which the deceased fell
down on the ground and she came out from her room.
After sometime when she came inside the room her
husband was found dead and blood was coming out.
Therefore, thinking about the future of her daughters
accused admittedly buried the dead body in the pit dug by
the labourer, inside the premises, for the purpose of
keeping beetle nuts .
22. Though, a plea of alibi was raised on
behalf of the accused-appellant, Must. Robinaj
Sultana Borah and the accused-appellant in their
statement tried to establish that the death of Rezak
Borah was an accidental one. But the accused-
appellant could not prima-facie show as to how the
deceased sustained multiple injuries on vital parts of
19
his body. The injuries sustained by the deceased
could not have been caused by single fall on the
ground, as sought to be established by the accused-
appellant. As a matter of fact, motive behind the
commission of crime is an essential ingredients of
criminal charge. It is pertinent to mention that
motive is not sine-qua-non, for the commission of
crime. Motive behind the crime is not known to any
other person except the person committing the
crime. However, motive for commission of an
offence become in-consequential when there is
direct and clinching evidence in respect of the
commission of offence by the accused.
23.. The Apex Court in the case of Dilip Kumar Sarma
Vs. State of Madhya Pradesh reported in AIR 1976
SC 133 held as follows: –
“Motiveless murders are not necessarily acts of mad and unhinged people. Prosecution is often unable to collect satisfactory evidence on the motive behind the crime. That does not call for any leniency and indeed where this is so, criminals would prefer, in order to reduce the gravity of their acts, to suppress the motive leading to the crime.”
20
24. Further, in the case of Datar Singh Vs.
State of Punjab, reported in AIR 1974 SC 1193, the
Hon’ble Apex Court again held as under –
“If the eye witnesses are relied upon, the mere absence of a strong motive for committing murder or the mode of its commission is of no assistance to the accused.”
25. Now question is whether the plea of alibi as tried to
be postulated by the accused in their defence statement can
be accepted to exonerate the accused Farhana.
26. The accused Farhana pleaded alibi to
improbablise her physical presence at the site of
occurrence. Except, for making a bald assertion
about her absence from her house, the appellant
miserably failed to examine witness before
whom she may have gone to a distant location. She
examined nobody, who could have seen her in the in
the distant location on the date of the incident.
Therefore, the trial court concluded that this plea
of being away from the rented premises at the
relevant time was concocted.
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27. Undeniably, the burden of establishing the
plea of alibi lay upon the appellant. The appellant
herein has miserably failed to bring on record any
facts or circumstances, which would make the plea
of his absence even probable, let alone, being
proved beyond reasonable doubt. The plea of alibi
had to be proved with absolute certainty, so as to
completely exclude the possibility of the presence of
the appellant in her house at the relevant time.
When a plea of alibi is raised by an accused, it is for
the accused to establish the said plea by positive
evidence which is visibly missing in the present
case. (See Shaikh Sattar v. State of
Maharashtra, (2010) 8 SCC 430.
28. The trial court thoroughly scrutinized the
circumstantial evidence to exclude the possibility of
the innocence of the appellants. Accused Farhana
was admittedly living together with other accused
persons. Apparently failure of the accused appellant
to prove the plea of alibi would automatically bring
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her together with other accused person, who
committed the crime.
29. It is now well-settled that with a view
to base a conviction on circumstantial evidence,
the prosecution must establish all the pieces of
incriminating circumstances by reliable and
clinching evidence and the circumstances so
proved must form such a chain of events as would
permit no conclusion other than one of guilt of the
accused. The circumstances cannot be on any
other hypothesis. It is also well-settled that
suspicion, however, grave may be, cannot be a
substitute for a proof and the courts shall take
utmost precaution in finding an accused guilty only
on the basis of the circumstantial evidence.
30. The last-seen theory, furthermore,
comes into play, where the time gap between the
point of time when the accused persons and the
deceased were last seen alive and the deceased is
found dead is so small that possibility of any
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person other than the accused being the author of
the crime becomes impossible. Even in such a case
courts should look for some corroboration.
31. However, in the present case, the accused
appellants were seen by many people, together
with the deceased. More so, the deceased was
admittedly residing together with the accused
appellants in the same house. The appellants
admitted such fact of being together with the
deceased just before his death. It has been proved
that the deceased had sustained severe injuries, on
his person; as a result of he died, in their presence.
In such circumstances, it is obligatory on the part of
the accused to come forward to explain reasons
for causing of such injuries. In the present case, the
appellants came forward to explain the reasons for
causing death of the deceased and his subsequent
burial within the premises.
32. Since the case of the prosecution rests
purely on circumstantial evidence, the trial court
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examined all the material circumstances as
discussed above and proved beyond reasonable
doubt the death of the deceased in the hands of
the appellants and his burial within his own
premises. We see no reason to disagree with the
conclusion arrived at by the trial court.
33. However, the appellants in their statement under
Section 313 CrPC, admitted the death of the deceased after
a brief scuffle and subsequent concealing of the dead body
in a pit dug inside the premises. The appellants emphatically
stated that the deceased had made an attempt to commit
rape on his own daughter. And the deceased, who was
holding deadly weapon had to be prevented by the
appellants from committing the heinous offence.
Thus in the peculiar facts and circumstances of the
case it is required to be examined as to whether the
deceased was done to death by accused-appellants on
account of grave and sudden provocation, for advancing
to commit heinous offence of rape upon his own daughter
in presence of his wife . In normal circumstances, the
deceased, father of two grown up daughters , who was
25
regularly earning from his vocation would not have met
the fate of being killed by his own family members had
there been no incident, as alleged by the appellant wife. As
admitted by the accused appellants in no other
circumstances, a wife would have killed her dear husband in
presence of her grown-up daughters.
34. The accused appellant-wife disclosed that ,
the deceased in an inebriated state aggressively lurched to
commit heinous offence of rape upon his own daughter in
her presence. Obviously, such episode would have the
potential to trigger sudden emotional outburst , which led
to deep and sudden provocation to stop the accused from
committing such heinous crime. As a matter of fact culpable
homicide is not murder, if it is committed without
premeditation in a sudden heat of passion upon or on
sudden quarrel.
35. In Mohammedd. Asif Vs. State of Uttaranchal
reported in (2009) 11 SCC 497, the Apex Court
observed in para 25 and 26 as follows –
25. The question with regard to finding out the intention on the part of the accused to cause death depends upon the facts and circumstances of each case. No hard-and-fast rule can be laid down therefore.
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26. Section 300 of the Code provides that subject to the exceptions contained therein culpable homicide would be murder if the act by which the death is caused is done with the intention of causing death. Exception 1 thereto providing for a situation when culpable homicide is not murder. In terms of Exception 1:
“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.”
The said provision is, however, subject to the following provisos:
“First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence.”
The Explanation appended thereto states that:
“Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.”
36. There is no standard of a reasonable man for the
application of the doctrine of "grave and sudden"
provocation. It may not be possible to formulate
reasonableness of a man. Behaviour of a reasonable man
depends upon his education, upbringing, customs, manners,
way of life, traditional values etc. Influence of ethnic,
societal and emotional background on the reasonable man
cannot be ruled out. ‘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
27
any standard with precision: it is for the court to decide in
each case, having regard to the relevant circumstances.’
In K.M. Nanavati v. State of Maharashtra, 1962 Supp (1) SCR 567 the Apex Court observed as follows:
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 Section 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.
38. On careful analysis of the facts and
circumstances we find that the dead body of the deceased
was recovered in a decomposed state after several days, in
a pit situated within their own premises. There were no eye
witnesses to the occurrence. Apparently, there was no deep
rooted motive to commit murder of the deceased. It
appears that the incident occurred suddenly, when the
deceased in an inebriated state attempted to rape his own
daughter in presence of his own wife which provoked the
accused wife so much as to lose her self-control.
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39. When the deceased wanted to lead an immoral
life with his own grown up daughter and his wife, the
accused, reproached him, while the deceased instead of
being remorseful, defying everyone in the family, wanted to
continue his scornful act. And the accused wife , being
enraged assaulted the deceased . As result of which the
deceased was killed. Apparently the fatal assault can 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. The immediate provocation
was sufficient to bring the case within the first exception to
s. 300 of the Indian Penal Code.
40. In the present case in our view, while
adjudging the behaviour of the accused, we cannot confine
to the actual moment, when the blow, which ultimately
proved to be fatal was struck, but also take into
consideration the event which took place immediately
before the fatal attack. The whole unfortunate affair must
have triggered agony and hatred on the part of the wife
and children, which must have provoked the accused wife
29
so much, as to lose her self-control, which must have led to
the assault upon the deceased, resulting in his death. Under
these circumstances we think that the provocation would be
both grave and sudden. The fact that the accused wife had
seen the attempt of the deceased to continue illicit
closeness with his daughter could certainly give her a
mental shock all of a sudden, it should be deemed to have
given her a grave and sudden provocation
41 The overt act on the part of the deceased,
which instigated provocation to the mother of the victim as
well as the accused victim, was surely grave and sudden.
Neither the provocation was sought for by the accused
appellants, nor got the provocation triggered by any lawful
action of the deceased.
42. After giving thoughtful consideration on the
entire gamut of facts leading to the occurrence, we find that
the present case would fall within the scope of exception to
Section 300 IPC and accordingly the appellant would be
entitled to claim that the offence should be punishable
under Section 304 Pt-II IPC.
30
43. For the foregoing reasons, the appeal is partly
allowed. The conviction of the appellants under Section 302
r/w 34 IPC is altered to one under Section 304 Part II of
IPC. Consequently, the sentence of life imprisonment
awarded to the appellants is set aside and they are
sentenced to rigorous imprisonment for the period they
have already undergone, in the meantime. But, the
conviction and sentence imposed for commission of offence
under section 201/ 34 IPC, against the appellants are
confirmed, however, considering the facts and
circumstances discussed above, they are sentenced to
rigorous imprisonment, for the period they have already
undergone, in the meantime.
44. With the above modification in the conviction of the
accused-appellants the appeal shall stand disposed of.
45. Let the accused-appellants be released forthwith
unless they are required to be detained in connection with
any other case.
46. For the services rendered by Mr. I.A.
Talukdar , learned Amicus Curiae, we direct the
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Assam State Legal Services Authority to remunerate
him to the extent of Rs.3,500/-.
47. Send back the L. C. Records along with a copy of
this judgment.
JUDGE CHIEF JUSTICE
TDR
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.