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2005 DIGILAW 568 (RAJ)

Harbhajan Singh v. State of Rajasthan

2005-02-18

SHIV KUMAR SHARMA, SURESH CHANDRA SINGHAL

body2005
Judgment S.K. Sharma, J.-Even after 14 years of the marriage, Harbhajan Singh (appellant) and Satendra Kaur @ Lavli (informant) were issueless. The appellant used to reside with the informant in the house of his mother-in-law Devendra Kaur (deceased) On the fateful day the appellant caused severe cut injuries with sword on the person of deceased. It is the prosecution case that because of the greed the appellant killed his mother-in-law. Whereas the appellant says that the deceased insulted him and gave a slap on his face as a result of which his Pagri (turban) fell down. Having lost his control he picked up the sword and inflicted injuries on the person of the deceased. Be that as it may let us find out the origin and genesis of the occurrence. 2. The appellant after being found guilty under Section 302 IPC was sentenced to suffer imprisonment for life and fine of Rs. 2,000/-in default to further suffer simple imprisonment for six months by learned Special Additional Sessions Judge (Women Atrocities) Sri Ganganagar vide its Judgment dated August 7, 2000 in Sessions Case No. 34/1998. the prosecution case as unfolded during trial was that Samun Ali Khan (PW. 10) station incharge of Police Station Kotwali Sri Ganganagar received a telephonic call on February 2, 1998 at 4.00 PM that in Senya Colony a murder had taken place Samun Ali Khan rushed to the spot and recorded the statement of Satendra Kaur @ Lavli (PW. 2) She stated that some 14 years back she was married to the appellant. Her mother, Devendra Kaur (deceased) who was a nurse in village Fakirwali, often used to visit her. Her mother did not like the drinking habit of the appellant and many a times asked him no to do so but the appellant never cared and his relations with his mother-in-law became strained. On the previous night of the meident when appellant consumed liquor his mother-in-law objected. The appellant became furious and punished the informant for the act of her mother by twisting the left hand of the informant. On the fateful day around 3.00 PM the appellant came to the house and asked the informant to serve the meals. As the informant was feeling pain in her hand, the food was cooked by her mother. The appellant became furious and punished the informant for the act of her mother by twisting the left hand of the informant. On the fateful day around 3.00 PM the appellant came to the house and asked the informant to serve the meals. As the informant was feeling pain in her hand, the food was cooked by her mother. The appellant was enraged, entered the room of her mother and inflicted injuries with Kripan on the person of her mother as a result of which she died. On the basis of said parcha bayan a case under Sections 302, 323 and 324 IPC was registered at Police Station Kotwali Sri Ganganagar and investigation commenced. On completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Special Additional Sessions Judge (Women Atrocities) Sri Ganganagar. Charge under Section 302 IPC was framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 10 witnesses. In the explanation under Section 313 CrPC, the appellant claimed innocence and stated that on the date of incident when his wife declined to serve food to him there were altercations between him and his wife. When he made complaint of his wife to his mother-in-law Devendra Kaur, she became furious and told him:- gjketkns dqRrs] esjs ?kj esa jgrk gSA esjs VqdMks ij iyrk gS] dke dqN djrk ugha] D;k lq[k fn;k gS esjh csVh dksA esjh yM+dh dks ,d cPpk ugha ns ldk] uiqald dgha dkA (Bastard, Dog, you reside in my house, eat my food without doing any work, what happiness you provided to my daughter. You impotent could not give a child to my daughter). Devendra Kaur then asked him to get out of the house and slapped him on his face. When she made attempt for the second slap her iron bangle hit on the finger of his left hand. Being provoked by the act of Davendra Kaur he lost his self-control, lifted the sword and inflicted injuries on her person. 3. Devendra Kaur then asked him to get out of the house and slapped him on his face. When she made attempt for the second slap her iron bangle hit on the finger of his left hand. Being provoked by the act of Davendra Kaur he lost his self-control, lifted the sword and inflicted injuries on her person. 3. The only contention advanced on behalf of the appellant is that the appellant could not have been convicted and sentenced under Section 302 IPC since Exception 1 of Section 300 IPC is attracted in the facts and circumstances of the case learned P.P. on the other hand vehemently opposed this submission and urged that it was a calculated act on the part of the appellant and no interference is called for. 4. After thoroughly examining the prosecution evidence we are satisfied that the involvement of the appellant in the instant case has been established through the evidence of Satendra Kaur @ Lavli (PW. 2). The presence of Satendra Kaur @ Lavli at the time of incident was natural and she had seen the appellant inflicting sword blows on the person of deceased. The evidence of Dr. B.M. Sharma (PW. 3) who performed autopsy on the dead body of Devendra Kaur, corroborated the testimony of Satednra Kaur @ Lavli. The appellnat himself admitted that he inflicted injuries with sword on the person of deceased. The involvement of the appellant in the incident is established beyond reasonable doubt. The only question that requires answer is as to what offence under the circumstances was committed by the appellant ? 5. From the material on record it is evident that incident occurred all of a sudden and the act of the appellant was committed in the same transaction in which he received grave and sudden provocation. The assault was made by the appellant as a consequence of grave and sudden provocation while he was deprived of his self control. The act of the appellant was a simultaneous reactions to the words uttered by the deceased. 6. It is true that the whole doctrine relating to provocation depends on the fact that it causes or may cause a sudden and temporary lack of self control. Whereby malice, which is the formation of an intention to kill or to cause grievous bodily harm is negatived. 6. It is true that the whole doctrine relating to provocation depends on the fact that it causes or may cause a sudden and temporary lack of self control. Whereby malice, which is the formation of an intention to kill or to cause grievous bodily harm is negatived. The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arise from sudden passion involving loss of self control by reason of provocation. Before an accused can draw any benefit from Exception 1 to Section 300 IPC there should be some circumstances to medicate that the act of the accused was done in the same transaction in which he received grave and sudden provocation. In order to remove culpable homicide from the category of murder provocation must not merely be grave but also sudden and must have by its gravity and suddenness deprived the appellant of the power of self-control. In order to invoke the benefit of Exception circumstances must be established when may lead to the only conclusion that the act of violence was a simultaneous reactions to an act or a situation which ensured for the purpose of causing grave and sudden provocation. The situation under law was regarded as causing grave and sudden provocation to the accused and anything he did in consequence must be judged and weighed in that light. In Baba vs. State of Maharashtra, 1999 CrLJ 4618 , deceased suggested to the appellant that he should ask his wife to indulge in prostitution, the appellant then lost his self control and inflicted 7 knife blows on the person of deceased. The Division Bench of Bombay High Court indicated as under:- "It should be born in mind when a person makes an assault as a consequence of a grave and sudden provocation he is deprived of his self control and is not in a position to weigh on golden seales the number of blows which he should inflict. Reason and balance are a post-mortem phenomena and person placed in situations in which the appellant was when he launched an assault on the deceased cannot always be expected to act with it." 7. In the instant case it is established from the record that deceased called the appellant impotent and insulted him by giving a slap on his pagri (turban) and threw it away. In the instant case it is established from the record that deceased called the appellant impotent and insulted him by giving a slap on his pagri (turban) and threw it away. Because of this act of the deceased the appellant suddenly got provoked lost his self control lifted the sword and caused injuries on the person of deceased. Number of injuries are not a crucial determinative factor when the benefit of Exception 1 to Section 300 IPC is invoked. Keeping in view over all circumstances of the case, we are of the view that Exception 1 to Section 300 IPC is attracted and we find that the appellant is guilty of committing the offence under Section 304 Part II IPC. The appellant is in custody since February 4, 1998 and in our opinion the ends of justice would amply be served to sentence the appellant to the period already undergone by him in confinement. 8. For these reasons, we partly allow this appeal and instead of Section 302 IPC we convict the appellant under Section 304-II IPC and sentence him to the period already undergone by him in confinement. The appellant, who is in jail, shall be set at liberty forthwith , if not required to be detained in any other case."