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Madhya Pradesh High Court · body

2002 DIGILAW 882 (MP)

Param Lal v. State M. P.

2002-09-23

A.K.SHRIVASTAVA, DIPAK MISRA

body2002
JUDGMENT Misra, 1. -- 1. Literature created by the great human minds reflect the social scenario and fresco the picture in such a manner that sometimes one wonders whether life has borrowed from the world of literature or is it the literature that has been richly endowed by multifaceted and manifold experiences of life. The war of Troy was fought for Helen and the entire gamut of human mind was portrayed as if the summum bonum of life centered around the lady. Othello, the obsessive and possessive lover paved the path of murderous proclivity solely due to suspicion, and got Desdemona done to death. That is why it has been said that passion and jealousy are the dictates of frenzy. They ride the reason out. Thus, wherever jealousy penetrates into the mind of a person, be it a male or female, the emotions wake up crossing all the barricades and bounds of reason and the protagonists do not hesitate to commit any heinous crime. 2. In the case at hand, as is discernible from the factual matrix, the accused-appellant (hereinafter referred to as 'the accused') Paramlal, being impassioned and enraged witnessing the deceased, Imarti, his wife, having sexual intercourse with one Teliram on the date of occurrence i.e., 3.1.1990, almost a 'Yuga' back, murdered her losing all control over himself. The hem1 of the matter is whether he did the act in a state of passion and fun or was it totally a calculated one? 3. The prosecution case, in brief, is that the accused, on the date of occurrence, noticed the deceased in a compromising position with another man and being intolerant and unable to see his faith embedded in his wife being crucit1ed, strangulated her which led to her death. Thereafter, he proceeded to the Police Station, Hoshangabad and lodged an FIR, Exhibit P-7, informing that his wife had been done to death. The criminal law being set in motion, the investigating agency arrived at the spot, did panchanama of the dead body, sent it for post mortem which was conducted by Dr. S.S. Katalia, PW 1, and examined witnesses under section 161 of the Code of Criminal Procedure (in short the Code') and eventually submitted the charge-sheet under section 302 of the Indian Penal Code (for brevity 'the IPC') in the competent Court which, in turn, committed the matter to the Court of Sessions. 3. S.S. Katalia, PW 1, and examined witnesses under section 161 of the Code of Criminal Procedure (in short the Code') and eventually submitted the charge-sheet under section 302 of the Indian Penal Code (for brevity 'the IPC') in the competent Court which, in turn, committed the matter to the Court of Sessions. 3. Initially, the accused had admitted with regard to his commission of offence by him but later on he abjured his guilt and pleaded that he had been falsely implicated. He expressed his desire to be tried. 4. It is apposite to mention here that in the statement recorded under section 313 of the Code, the accused, on a query being made by the learned trial Judge, has unequivocally stated as under: ^^ge nksuksa izk.kh vPNs jgrs Fks eSaus rsyhjke dks laHkksx djrs ns[kk fQj esjs dks gks"k ugha jgk** 5. The prosecution, in order to establish its case, examined as many as five witnesses, PW 1 Dr. S.S. Kataria, who had done autopsy of the dead body of the deceased; PW 2 Kusum Bai, sister of the deceased; PW 3 Jamna Bai, mother of the deceased; PW 4 Ganagaram, the father of the deceased; and PW 5 Shri S.K. Pathak, is the Investigating Officer. 6. The defence chose not to adduce any evidence. However, during cross-examination, at his behest one document, Exhibit D-1, was marked as an exhibit. 7. The learned trial Judge; considering the ocular and medical testimony and other documents brought on record, came to hold that the prosecution had been able to establish the charge under section 302, IPC against the accused and accordingly convicted him of the said offence and sentenced him to undergo rigorous imprisonment for life. 8. Mr. Suryanarayana Singh, learned counsel who was engaged by us to act as a friend of the Court, has contended that the learned trial Judge has fallen into grave error by expressing the view that the prosecution has proved its case to the hilt in regard to the offence under section 302, IPC though the factual matrix exhibits a different scenario altogether. It is urged by Mr. It is urged by Mr. Singh that the learned trial Judge has failed to appreciate the chronology of events in proper perspective and also failed to take note of the fact that there had not been much gap between the husband noticing the compromising situation between the deceased and her paramour, and came to hold that the offence was punishable under section 302, IPC though there is ample material on record to come to conclusion that the accused could be convicted of lesser offence. He has further submitted that there are material contradictions in the version of PW 2 and there are irreconcilable discrepancies in the evidence of PW 2 on the one hand and PW 3 and 4 on the other, and in that factual backdrop, the learned trial Judge should have come to hold that• there was sudden provocation by the deceased in her conduct which became unbearable on the part of the accused who took law unto his hands. Learned counsel, to bolster his submissions, has placed reliance on the decisions rendered in the cases of K.M. Nanavati v. State of Maharashtra ( AIR 1962 SC 605 ), Akhtar v. State (AIR 1964 Allahabad 262), Raghavan Achari and Njoonjappan v. State of Kerala ( AIR 1993 SC 203 ) and State of U.P. v. Lakhmi ( AIR 1998 SC 1007 ). 9. Combating the aforesaid submissions, it is urged by Mr. Ajay Mishra, learned Dy. Advocate General for the State that the learned trial Judge has appreciated the evidence in proper perspective and the view taken by him is quite a sound one warranting no interference by this Court. It is canvassed by him that the discrepancies highlighted by the learned counsel for the appellant no way create any dent or doubt in the• prosecution version inasmuch as such minor discrepancies do not get the status of material contradictions. Learned counsel for the State has submitted that the accused who had lodged the FIR had taken a somersault and again come back in the feeble manner while his statement under section 313 of the code was recorded and if his conduct is appreciated in entirety, it can safely be concluded that there has been premeditation for commission of the crime in question and Exception I of section 300, IPC would not be attracted. 10. 10. To appreciate the rival submissions raised at the Bar, we have carefully perused the judgment rendered by the learned trial Judge. Mr. Singh as well as Mr. Ajay Mishra have taken us through the evidence brought on record. It is not disputed that the death of the deceased had occurred due to injury sustained by her in the neck region. Dr. S.S. Kataria, PW 1, has clearly deposed that deceased sustained such injuries which were sufficient in ordinary course of nature to cause death. In the cross-examination he has also stood admitted that the injuries can be caused in the case of strangulation. If the evidence of aforesaid witness is scrutinized, in our considered opinion, that does withstand scanning and leads us to the conclusion that the death of the deceased was homicidal in nature. 11. The crux of the matter is whether the accused assaulted the deceased and if so, whether it would be culpable homicide amounting to murder. The learned trial Judge has taken note of the evidence brought on record and came to hold that, the dead body was recovered from the house of the accused. He was the only person who was present in the house. The mother and the sister of the deceased have categorically stated that the deceased was dragged away from their house and soon thereafter, the death occurred. The FIR was lodged in quiet promptitude by the accused. The cumulative effect of the events indicate that the accused was responsible for t-he death of the deceased. The reasons ascribed by the learned trial Judge are in consonance with the evidence brought on record and there is no reason to dislodge the same. 12. It is contended by Mr. S.N. Singh that though the accused is responsible for the death of the deceased, the offence would not be one under section 302, IPC and at best, it should be one under section 304 Part I, IPC. It is canvassed by Mr. Singh that Exception I to section 300, IPC would get attracted to the case at hand inasmuch as the accused got enraged by seeing his wife who had succumbed to the carnal desire of one Teliram. Mr. Ajay Mishra, learned Dy. It is canvassed by Mr. Singh that Exception I to section 300, IPC would get attracted to the case at hand inasmuch as the accused got enraged by seeing his wife who had succumbed to the carnal desire of one Teliram. Mr. Ajay Mishra, learned Dy. Advocate General, per contra, has contended that the evidence brought on record clearly establishes that there was premeditation in the commission of crime and, therefore, the benefit which is sought to be claimed by the learned counsel for the appellant is not available, in a way an attempt in futility. 13. To appreciate the aforesaid facet, we have perused the evidence of Kusum Bai, the sister of the deceased. In her examination-in-chief, she has stated that on the date of occurrence, the deceased had come to her parental home in the morning hours and thereafter the accused came and dragged her away. She had deposed that both the parents were at home. From the examination-in-chief, it is patent that the accused was shouting that he would extinguish the life spark of the deceased and this was seen by a number of neighbours. In her cross-examination, she has clearly admitted that she had not stated so in her statement recorded under section 161 of the Code. Her statement has been brought on record as Exhihit D-1.Another aspect which requires to be appreciated is that Jamuna Bai, the mother of the deceased, PW 3, has feigned ignorance to the effect that she has no knowledge why there had been any altercation between the accused and the deceased. However, she has admitted that the deceased had come to the parental home in the morning hours. It is also in her evidence that alter 5 to 10 minutes, the accused came and dragged her away. The father of the deceased, as admitted by him, was not present at home when the deceased had come to his house. Mr. Singh has laid immense emphasis on the evidence of PW 2 who has stated that the father was at home but the father has deposed that he was not present at home. As far as the father is concerned, his evidence is absolutely immaterial. On a perusal of the evidence brought on record, it is graphically evinced that the deceased had gone to the parental home and the accused immediately reached the house and dragged her away. As far as the father is concerned, his evidence is absolutely immaterial. On a perusal of the evidence brought on record, it is graphically evinced that the deceased had gone to the parental home and the accused immediately reached the house and dragged her away. There is no dispute at the Bar that the house of the accused and the house of the father of the deceased is intervened by four small houses. Thus, gap between the houses is quite less. The accused has himself stated that the wife had not been loyal to him. He had himself seen her in a compromising situation with Teliram and being enraged, he had committed the crime. 14. In this context, we may profitably refer to the decision rendered in the case of K.M. Nanavati (supra) wherein in paragraph 85 their Lordships laid down as under: "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." 14-A. In the case of Raghavan Achari and Njoonjappan (supra), the Apex Court, in paragraph 8, took note of the fact that the appellant found the deceased in a compromising position which gave him grave and sudden provocation. In that factual backdrop, the Apex Court came to hold that as the accused has been inflicted upon grievous injuries by the deceased, he had taken recourse to private defence and the facts did not indicate that he had exceeded his right of private defence. In that factual backdrop, the Apex Court came to hold that as the accused has been inflicted upon grievous injuries by the deceased, he had taken recourse to private defence and the facts did not indicate that he had exceeded his right of private defence. Their Lordships upheld the said plea and set aside the conviction and sentence. We have referred to the aforesaid decision as Mr. Singh has contended that the observations made by their Lordships in paragraph 8 of the judgment clearly exposit that there can be sudden provocation when a husband sees his wife in a compromising position. 15. Relying on the case of Lakhmi (supra), Mr. Singh, learned counsel for the appellant, has further proposed that if wife is engaged in lascivious activities with another person, the husband is hound to be enraged. The learned counsel has drawn inspiration from paragraphs 19 to 21 of the aforesaid judgment. We think it apposite to reproduce the same: "19. The above features positively suggest that the accused would have seen something lascivious between his wife and PW 2 just when he entered the house from the field. 20. There can be little doubt that if the accused had witnessed any such scene, his mind would have become suddenly deranged. It is not necessary that a husband should have been hot tempered or hypersensitive to lose his equanimity by witnessing such a scene. Any ordinary man with normal senses or even sangfroid would be outraged at such a scene. 21. We are, therefore inclined to afford to the respondent-accused benefit of Exception I to section 300, IPC. As the corollary, we find the respondent guilty only under section 304 Part I, IPC." 15-A. Mr. Singh has also commended us to the decision rendered in the case of Akhtar (supra) wherein a Division Bench of Allahabad High Court in paragraph) I dealt with the concept of self control. We think it apposite to quote the relevant portion of the same: "11. In determining whether an accused person was overwhelmed by a grave and sudden provocation, the Courts in this country do and must investigate whether the offender acted reasonably or normally or properly, as an average person in the position and circumstances of the offender may be expected to do, until the point of time at which the offender is actually deprived of his power of self-control. But, once his power of self-control has been lost, it would be futile to expect him to retain such a degree of control over himself as to exercise a choice over the weapon used by him for an attack or to show that his 'mode of resentment' bore a reasonable relationship to the provocation which operated upon him. Indeed, if the offender were shown to display reasonableness or deliberateness or to exercise control over himself even after he had received a provocation which was grave and sudden, and before the act which caused the death, he could not be held to be really deprived of the power of self-control, and such a person could not get the benefit of Exception I to section 300, Indian Penal Code." 16. If the present factual matrix is tested on the principles enunciated in the aforesaid cases, it is manifestly clear that the accused-appellant belongs to a lower stratum of life. He was a daily-wage earner. It is not appropriate to remain oblivious to the milieu in which he lived. The strata; the society and state of mind do have an essential role to play in a case of this nature and that is why emphasis is always laid on the social sphere to which the accused and the deceased belong. When the evidence in entirety is scanned with due contemplation, it clearly emerges that there was an altercation on the date of occurrence between the husband and the wife as the husband had noticed an extremely unbearable incident his wife having intercourse with her lover. That led to the escape of the wife to her parental home the escape did not last long as the accused immediately rushed to the house of his father-in-law and dragged her away. It is noteworthy to mention here that the father was not present in the house, as is demonstrable from the material brought on record. The distance between the two houses is very less. It could have hardly consumed five minutes. The accused rushed immediately to the house of PW 4 and brought the deceased and strangulated her. The entire incident took place in a short duration. If the time factor is taken into consideration, there remains no scintilla of doubt that 'there could have been no premeditation. It could have hardly consumed five minutes. The accused rushed immediately to the house of PW 4 and brought the deceased and strangulated her. The entire incident took place in a short duration. If the time factor is taken into consideration, there remains no scintilla of doubt that 'there could have been no premeditation. The accused who belongs to a different span in the society was not in a position to garner self-control by that time. Therefore, we find substantial force in the submission of Mr. Singh that the accused was provoked and the provocation was sudden. There was no time to subside the said provocation and accordingly, we are of the considered opinion that the conviction under section 302, IPC recorded by the learned trial Judge is unsustainable. We are of the view that the offence would be one under section 304 Part I, IPC and accordingly, we convict the appellant of the aforesaid offence and sentence him to rigorous imprisonment for ten years. As the appellant has remained in custody for more than a decade, he shall be set at liberty forthwith unless he is required in any other case. 17. Before parting with the case we think it appropriate to express our unreserved and uninhibited appreciation for Mr. S.N. Singh for rendering assistance to this Court as he has ably put forth the matter from all possible perspectives. . 18. Ex consequenti, the criminal appeal is allowed in part.