Salik Ram Nagwanshi vs State Of Chhattisgarh
2022 Latest Caselaw 7585 Chatt

                                                                          Cr.A.No.777/2015

                                        Page 1 of 13

                                                                                      NAFR

              HIGH COURT OF CHHATTISGARH, BILASPUR

                     Criminal Appeal No.777 of 2015
 {Arising out of judgment dated 13-3-2015 in Sessions Trial No.1/2015
                     of the Sessions Judge, Raigarh}

Salik Ram Nagwanshi, S/o Shri Mangalu Nagwanshi, Aged about 26
years, Occupation Labour, R/o Village Haradijhariya, Police Station
Bagbahar, Distt. Jashpur (C.G.), Present Address: Village Pakargaon
Raja Bungalow, Police Station Lailunga, Distt. Raigarh (C.G.)
                                                                (In Jail)
                                                          ---- Appellant

                                          Versus

State of Chhattisgarh, Through the Station In-charge, Police Station
Lailunga, Distt. Raigarh (C.G.)
                                                    ---- Respondent

----------------------------------------------------------------------------------------------
For Appellant:                Mr. Ajeet Kumar Yadav, Advocate.
For Respondent/State:Mr. Ashish Tiwari, Govt. Advocate.
----------------------------------------------------------------------------------------------

                      Hon'ble Shri Sanjay K. Agrawal and
                    Hon'ble Shri Rakesh Mohan Pandey, JJ.

Judgment On Board (15/12/2022)

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of the CrPC filed by

the appellant herein is directed against the impugned judgment of

conviction and order of sentence dated 13-3-2015 passed by the

Sessions Judge, Raigarh, in Sessions Trial No.1/2015, by which

the appellant has been convicted under Section 302 of the IPC

and sentenced to undergo imprisonment for life and pay fine of ₹

5,000/-, in default of payment of fine to further undergo additional

rigorous imprisonment for two years.

Cr.A.No.777/2015

2. Case of the prosecution, in short, is that on 17-9-2014 at 04:00

p.m., at Village Lailunga, Police Station Lailunga, Distt. Raigarh,

in a hut situated at Raja Bungalow, the appellant assaulted his

wife Meena by hands & fists and chappal by which she suffered

grievous injuries and died, and thereby committed the offence.

Further case of the prosecution is that on 17-9-2014, the

appellant seen his wife Meena with Ganpat Raut (PW-2) in

objectionable position and then immediately, on account of grave

and sudden provocation, he assaulted his wife by hands & fists

and thereafter, murdered her and informed the matter to his

employer Seth Mohanlal Singhaniya and also gave extra-judicial

confession to Bhagat Ram (PW-5). On the complaint of Bhagat

Ram (PW-5), morgue intimation under morgue No.65/2014 was

registered vide Ex.P-12 and FIR was also registered for offence

punishable under Section 302 of the IPC vide Ex.P-11. After

conducting inquest vide Ex.P-6, dead body was subjected to

postmortem vide Ex.P-2 which was conducted by Dr. Yogeshwar

Singh Saratiya (PW-3) in which cause of death was stated to be

haemorrhagic shock from intraabdominal bleed as a result of

blunt trauma causing rupture of spleen and liver and also opined

that there was sign of recent sexual intercourse within 3-6 hours

from the date & time of postmortem, and death was homicidal in

nature. Pursuant to the memorandum statement of the appellant,

clothes and other articles were seized and all the seized articles

were sent for chemical examination to the FSL, but no FSL report Cr.A.No.777/2015

has been brought on record.

3. Statements of the witnesses were recorded under Section 161 of

the CrPC.. After completion of investigation, charge-sheet was

filed against the appellant before the Court of Judicial Magistrate

First Class, Gharghoda and the case was committed to the Court

of Sessions, Raigarh for trial where the trial was conducted.

4. The trial Court has framed charge against the appellant for

offence punishable under Section 302 of the IPC and proceeded

on trial. The appellant abjured guilt and entered into defence

stating that he has not committed the offence and he has been

falsely implicated.

5. The prosecution in order to bring home the offence examined as

many as 6 witnesses and exhibited 22 documents Exhibits P-1 to

P-22. Defence has not examined any witness and exhibited no

document. Statement of the appellant was recorded under

Section 313 of the CrPC in which he abjured the guilt and

pleaded innocence.

6. The trial Court after completion of trial and after appreciating oral

and documentary evidence available on record, convicted and

sentenced the appellant in the manner mentioned in the opening

paragraph of this judgment against which this appeal under

Section 374(2) of the CrPC has been preferred by him calling in

question the impugned judgment.

7. Mr. Ajeet Kumar Yadav, learned counsel appearing for the

appellant, would submit that taking the finding of the trial Court as Cr.A.No.777/2015

recorded in paragraph 25 of the judgment as it is that the

appellant assaulted deceased Meena finding her with Ganpat

Raut (PW-2) in objectionable position, even then, Exception 1 to

Section 300 of the IPC would be attracted and offence is liable to

be altered to Section 304 Part-II of the IPC. Therefore, the

appeal be allowed in part.

8. Mr. Ashish Tiwari, learned Government Advocate appearing on

behalf of the State / respondent, would support the impugned

judgment and would submit that the trial Court is absolutely

justified in convicting the appellant under Section 302 of the IPC

which is not liable to be altered / converted, as the case in hand

would not fall under Exception 1 to Section 300 of the IPC and

the appeal deserves to be dismissed.

9. We have heard learned counsel for the parties and considered

their rival submissions made herein-above and also went through

the record with utmost circumspection.

10. The trial Court after appreciating oral and documentary evidence

on record relying upon the statement of medical officer Dr.

Yogeshwar Singh Saratiya (PW-3) and taking into consideration

his postmortem report Ex.P-3, has rightly came to the conclusion

that death of Meena was homicidal in nature, which is a finding of

fact based on the evidence available on record, it is neither

perverse nor contrary to the record and we hereby affirm the said

finding.

11. The next question for consideration would be, whether the Cr.A.No.777/2015

appellant was the perpetrator of the crime in question?

12. As per the prosecution case, one Maheshwar Kanwar is

eyewitness who was standing outside the hut where Ganpat

Raut (PW-2) & deceased Meena were found in objectionable

position, but for the reasons best known to the prosecution,

Maheshwar Kanwar has not been examined. However, Ganpat

Raut (PW-2), who was found in objectionable position with the

appellant's wife, has admitted his presence in the hut of the

appellant and the deceased, however, he has further admitted

that he and Maheshwar Kanwar were present there along with

the deceased for Gudaku, at that time, the appellant came there,

then he and Maheshwar Kanwar absconded from the spot.

However, in cross-examination, he has also admitted that when

he visited the house of the appellant, the appellant was not there

and further admitted that he had some illicit relationship with the

deceased and on that account, he and the appellant used to

quarrel, but he refuted the fact that he has committed rape with

the deceased and murdered her.

13. Bhagat Ram (PW-5), before whom the deceased has made

extra-judicial confession, has been declared hostile. He has

clearly admitted that on the fateful day, in the evening at 04:00

p.m., the appellant had informed him that he had seen Ganpat

Raut (PW-2) and deceased Meena in objectionable position in

his house on bed, then he murdered Meena. Bhagat Ram (PW-

5) has reported the matter to the police, then the appellant has Cr.A.No.777/2015

also informed the matter to his owner / employer under whom he

is working namely, Seth Mohanlal Singhaniya, whereas, Seth

Mohanlal Singhaniya has not been examined.

14. On the shirt recovered from the possession of the appellant,

blood-like stain was there as per Ex.P-9, though the said shirt

was sent for chemical examination to the FSL, but no FSL report

was brought on record. However, considering the testimony of

Ganpat Raut (PW-2) & Bhagat Ram (PW-5), it is apparent that

the appellant is the perpetrator of the crime.

15. However, the trial Court relying upon the incriminating

circumstances mentioned in paragraph 25 of the impugned

judgment came to the following conclusion: -

25- tgka rd izFke lwpuk fjiksVZ izn'kZ ih&11 foyEc ls fy[kk;s tkus dk laEcU/k gS] izFke lwpuk fjiksVZ izn'kZ ih&11 dh dafMdk&08 esa foyEc dk dkj.k e`frdk ds eka&cki dh ryk'k djuk crk;k x;k gSA vfHk;kstu lk{kh Hkxr jke ds }kjk ?kVuk ds ckn iqfyl dks dh xbZ izFke lwpuk mlds izfrijh{k.k esa [kf.Mr ugha gqvk gS vkSj bl lk{kh ds dFku esa ;g ckr izekf.kr gS fd vkjksih tks fd e`frdk dk ifr gS] ds }kjk viuh iRuh ds xuir ds lkFk voS/k lEcU/k dks ydj vkifRrtud n'kk esa ns[ks tkus ij mldh gR;k dh xbZ gS rFkk lk{kh xuir jkÅr ds lk{; ls Hkh ;g Li"V gS fd mlus vfHk;qDr ds vfHkHkk"kd ds izfrijh{k.k esa ;g Lohdkj fd;k gS fd vfHk;qDr dh iRuh ds lkFk mldk voS/k lEcU/k FkkA blh izdkj e`frdk dh iksLV ekVZe fjiksVZ izn'kZ ih&02 esa MkW- ;ksxs'oj flag ljfV;k ds }kjk ;g Hkh vfHker fn;k x;k gS fd e`frdk dh e`R;q ds rhu ls N% ?k.Vs ds Hkhrj mlds lkFk LkEHkksx gqvk gSA vr% mijksDr lHkh lk{;ksa ls ;g Li"V gS fd e`frdk ds lkFk xuir jkÅr ds vkifRrtud voS/k lEcU/k dks ns[ks tkus ij e`frdk ds ifr vkjksih lkfyd jke ukxoa'kh ds }kjk viuh iRuh ds lkFk vius ?kj ds dejs esa ekjihV dh xbZ ftlds Cr.A.No.777/2015

ifj.kkeLo#i mldh e`R;q gks xbZZA iksLV ekVZe dh fjiksVZ ls tSlk fd iwoZ esa mfYYkf[kr gS] e`frdk dh e`R;q igqapkbZ xbZ pksV mldh e`R;q dkfjr djus ds fy;s Ik;kZIr gksdj ekuo o/k gR;kRed Js.kh esa j[ks tkus ;ksX; gSA vr% bu ifjfLFkfr;ksa esa vfHk;kstu ds lk{; ls vkjksih ds }kjk e`frdk dh gR;k fd;s tkus ds rF; izdV gksrs gSA

16. A careful perusal of the aforesaid conclusion / finding of the trial

Court would show that the appellant at the relevant point of time

had seen deceased Meena & Ganpat Raut (PW-2) in

objectionable position and furthermore, as per the postmortem

report Ex.P-2 proved by Dr. Yogeshwar Singh Saratiya (PW-3), it

is clearly proved that the deceased was subjected to sexual

intercourse within 3-6 hours before death.

17. It is the submission on behalf of the appellant that Exception 1 to

Section 300 of the IPC would attract in the present case.

18. Exception 1 to Section 300 of the IPC 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.

19. 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.

Cr.A.No.777/2015

20. Their Lordships of the Supreme Court in the matter of K.M.

Nanavati v. State of Maharashtra 1 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"

1 AIR 1962 SC 605 Cr.A.No.777/2015

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."

21. Very recently, the Supreme Court in the matter of Dauvaram

Nirmalkar v. State of Chhattisgarh 2 relying upon K.M. Nanavati

(supra) held in paragraphs 12 & 13 as under: - 2 Criminal Appeal No.1124 of 2022, decided on 2-8-2022 Cr.A.No.777/2015

"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 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.

3 See the opinion expressed by Goddar, CJ. in R v. Duffy, (1949) 1 All.E.R. 932 Cr.A.No.777/2015

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 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."

22. Furthermore, in the matter of Hansa Singh v. State of Punjab 5,

where the accused appellant therein on seeing G committing the

4 1975 Criminal LR 558-559, and George Mousourakis's elucidation in his paper 'Cumulative Provocation and Partial Defences in English Criminal Law' 5 AIR 1977 SC 1801 Cr.A.No.777/2015

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."

23. 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 abundantly clear that the

appellant was forcefully driven to the crime which was not

premeditated and the occasion had sprung up the moment, as

the appellant had reached to his hut and seen his wife Meena

with Ganpat Raut (PW-2) in objectionable position and had lost

his self-control, and due to grave and sudden provocation,

inflicted injuries, successively within few minutes on the

deceased on various parts of the body by which spleen and liver

were ruptured and by such grave and sudden provocation Cr.A.No.777/2015

enhanced, the appellant assaulted the deceased. 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 Meena. Howover, he must have

had knowledge that the injuries caused by him are sufficient to

cause death, particularly in the medical report (postmortem

report) Ex.P-2 sign of recent sexual intercourse was also found

by Dr. Yogeshwar Singh Saratiya (PW-3). 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-II of the IPC.

24. Accordingly, we alter the conviction of the appellant from one

under Section 302 of the IPC to that under Section 304 Part-II of

the IPC. The appellant has been in jail since 19-9-2014 i.e. for

more than eight years. Therefore, we reduce the sentence from

life imprisonment to the period already undergone. The appeal is

allowed in part. The appellant be released forthwith, if his

detention is not required in any other offence.

                Sd/-                                          Sd/-
          (Sanjay K. Agrawal)                     (Rakesh Mohan Pandey)
               Judge                                         Judge

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