[Cites 49, Cited by 0]
Gujarat High Court
Hasmukhbhai Bhurabhai Vasava vs State Of Gujarat on 25 March, 2026
Author: Gita Gopi
Bench: Gita Gopi
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R/CR.A/816/2001 JUDGMENT DATED: 25/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 816 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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HASMUKHBHAI BHURABHAI VASAVA
Versus
STATE OF GUJARAT
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Appearance:
BAILABLE WARRANT SERVED for the Appellant(s) No. 1
MR VD PARGHI(568) for the Appellant(s) No. 1
MS JYOTI BHATT APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 25/03/2026
JUDGMENT
1. The present appeal is filed by the appellant, who came to
be convicted under Section 304 Part-II of the Indian Penal
Code (I.P.C. for short) by the judgment and order dated
12.09.2001 passed by the Additional Sessions Judge,
Panchmahal, Godhra in Sessions Case No.100 of 1998,
whereby the appellant was ordered to serve sentence of five
years rigorous imprisonment with fine of Rs.3,000/- and in
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failure of payment of fine further three months simple
imprisonment.
2. The case of prosecution, as per the charge Exh.2 is that
on 31.07.1997, at about 00:30 hours, the accused-appellant at
his residence situated at G.E.B. Quarter in E/2, found his wife
- Dhirajben in an illicit relation with her lover, Harshadkumar
R.Sharma and at that time, the deceased threatened the
accused-appellant, that if he comes between them, he would
not be allowed to live.
2.1 It is further alleged that the accused-appellant
assaulted deceased by giving fist and kick blows, and with
intention to kill dashed her with the wall, and inflicted blows
with a deadly weapon like a wooden log, thereby causing
bodily injuries which were sufficient in the ordinary course of
nature to cause death. As a result of the said injuries, the
deceased succumbed to death and thereby, accused was
charged for an offence punishable under Section 302 of the
Indian Penal Code.
3. Learned advocate Mr. V.D. Parghi for the appellant
submitted that the judgment of conviction passed by the
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learned Trial Court Judge is without appreciating the evidence
on record and the law laid down by the Hon'ble Supreme
Court. Mr. Parghi stated that the learned Trial Court Judge
ought to have considered the evidence on record that the wife
of the accused i.e. the deceased had developed illicit relation
with a co-employee of accused residing in the same colony.
3.1 Learned advocate Mr. Parghi submitted that the learned
Sessions Judge has failed to take into consideration the fact
that it was not an offence allegedly committed by the
appellant. Mr. Parghi stated that if it is to be believed without
admitting, it was not a pre-mediated crime, but was out of
grave and sudden provocation as per the evidence on record.
Mr. Parghi stated that the appellant's wife had developed
illicit relation with one Harshadkumar Sharma and were
found in compromising position and when both were
confronted by the appellant, the deceased wife threatened the
appellant that if he comes in between them, he would not be
allowed to live, and that had enraged the appellant, as a
consequence he lost his self-control.
3.2 Learned advocate Mr.Parghi further submitted that
after marriage, the appellant and his wife were having a son
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named Kishan aged about four years at the time of incident.
Mr. Parghi stated that the said act on the part of his wife was
in no circumstances pardonable act on the part of any man of
prudence. Mr. Parghi submitted that the learned Trial Court
Judge has failed to take into consideration that the act of
intimate relationship witnessed by the appellant in his own
house at odd hours at 12:30 at mid-night which gave grave
and sudden provocation to the appellant, led him to assault
his wife, who later on died.
3.3 Learned advocate Mr. Parghi stated that the learned
Trial Court Judge has also failed to take into consideration the
fact that all the witnesses who have been examined during the
trial had stated that it was the appellant who had made extra-
judicial confession of the offence committed by him. Mr.
Parghi submitted that the appellant had neither any mens rea
to commit the offence nor his conduct was questionable after
the incident, thus without corroboration the evidence in the
nature of extra-judicial confession cannot be believed.
3.4 Learned advocate Mr. Parghi has relied upon the case of
Raghavan Achari alias Njoonjappan v. State of Kerala
1993 Supp. (1) SCC 719, wherein the facts were that the
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appellant having seen deceased in a compromising position
with his wife and deceased having caused grievous injuries to
the appellant, thereupon appellant who was having the
chopper in his hand used it which resulted in the death. The
appellant was made entitled to get the benefit of section 100
of IPC and the conviction under section 304 Part-I and
sentence of three years rigorous imprisonment was set aside.
Mr. Parghi thus finding similarity in the facts of case prayed
to grant the benefit in the same way to the present appellant.
4. Per contra, learned APP Ms. Jyoti Bhatt submitted that
the judgment and order of the Trial Court convicting the
present accused is just and proper and does not require any
interference, as same is appropriately passed. APP Ms. Bhatt
submitted that the death of the wife is in a very brutal way.
The appellant had waited for the opportunity to murder his
wife, thus under the pretext of the false allegation of immoral
act of wife has done away with her. Referring to the injuries
suffered by the deceased, learned APP Ms. Bhatt submitted
that it is actually a case of murder.
4.1 Learned APP Ms. Bhatt has also relied on the judgments
of (i) Surender Kumar v. State of Himachal Pradesh, 2025 (12)
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SCR 439, (ii) Rajeshbhai Prabhatbhai Patel v. State of Gujarat,
2024 (0) AIJEL-HC 249286, (iii) Surender singh v. State (Nct
of Delhi), 2024 (7) SCC 40 and (iv) Chandubhai @
Dharmendrabhai Raijibhai Tadvi v. State of Gujarat, 2024 (2)
GLR 1246, to distinguish the facts of the present matter and
to submit on the applicability of law.
5. Having heard learned advocate Mr. V.D. Parghi and
learned APP Ms. Jyoti Bhatt, perused the record. The
prosecution examined five witnesses and relied upon almost
ten documentary evidence. The complainant Hasmukhbhai is
accused himself, who on 31.07.1997 stated before police sub-
inspector, Godhra Taluka by his complaint that he was
residing with his family along with his child in Lileshra village
and was serving as a Senior Clerk since last one year in GEB
Lileshra. They are two brothers, his elder brother was having
his job in IPCL Vadodara and was residing in the township of
IPCL. The accused-complainant marriage was solemnized in
the year 1992 in Muleshar Taluka, Sinor District Vadodara
with daughter of Chaturbhai Chagganbhai Vasava, named
Dhirajben as per custom of their community and thereafter his
wife was residing with him, and out of the wedlock, they had a
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son named Kishan aged about four years. He had two sisters,
who were already married and residing in their matrimonial
house and their parents were residing in village working as
agriculture labourer.
6. The accused in his complaint stated that one week prior
to the incident he got suspicious of his wife having illicit
relation with the neighbour Harshand Sharma, a typist clerk
in GEB, original resident of Nadiyad and therefore had kept
an eye on his movement. On 30.09.1997, at about 8 O' clock in
the evening the complainant-accused, his wife and his son
were watching T.V. till 9:00 at night and thereafter all the
three slept in the same room on the bed. He stated that since
he was doubting the character his wife, so he pretended to be
asleep, during that time, that day i.e. about 0.30 hours of
31.07.1997, his wife went to the next room, at that time,
Sharma had entered the house from the rear door and both of
them were engaged in intimate relation. On hearing the sound
he woke up from his bed and entered into the next room
where he saw both of them in compromising condition and
therefore suddenly he got excited and started scolding, at that
time his wife threatened him not to come in between them
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otherwise they would not allow him to remain alive, so the
complainant got enraged, while Sharma ran away from place.
He gave fist and kick blows to his wife and in spite of that, his
wife continued to retort, so he holding her dashed her to the
wall; she was injured on the forehead. Thereafter, suddenly he
got a chock (a wedge-shaped block of wood) from the stove in
his house and gave a blow on the forehead of his wife.
Thereafter both of them slept on the bed. The complainant
also stated that his wife was habituated to sleep down from
the bed during the night, as his wife was sleeping and
therefore, he did not pay attention to her, and when he woke
up at about approximately 2:45 night to drink water, at that
time, he tried to woke his wife, twice to thrice moved her
body, but found her dead. Thereafter, he informed his
superior Deputy Engineer Jayantilal Kantilal Sariam and the
neighbours about the death. An ambulance came from Civil
Hospital, seeing the injuries on his dead wife, the ambulance
did not carry her body and the incident was informed to police
control room.
6.1 The accused has further stated in the complaint that
since he was doubting the relation of his wife with neighbour
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Sharma, therefore he gave fist and kick blows to his wife and
dashed her on the wall and caused her to death with the
chock. The accused also produced the chock with his
complaint.
7. The panchnama of the place of offence was conducted on
the date of the complaint i.e. on 31.07.1997 between 10:45
a.m. to 11:30 a.m. The another noticeable fact is the
document at Exh.27 which is copy of the complaint by the
appellant-accused against Harshadkukar R.Sharma as I-
Cr.No.176 of 1997 under Sections 452 and 323 of IPC; the
date of offence as 31.07.1997 and time is 0:30 hours. The
offence was registered on that day at the police station at
13:00 hours.
8. The accused as a complainant gave a complaint on
31.07.1997 with the fact that Harshadkumar R.Sharma was
having illicit relation with his wife and since last one week he
was suspicious. Stating the same fact, of watching the T.V.
along with wife and son, and going to sleep, accused stated
that on 31.07.1997 at 0:30 hours accused Harshad Sharma
entered their house from the rear door and, his wife also went
in the rear room, hearing the sound, the present accused had
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gone to the room, where he saw both of them in intimate
relation, while his wife told him that, 'who are you to beat me,
we would do away with you'. The complainant stated that soon
thereafter his wife came and stood ahead of Sharma, at that
time, there was scuffle with Sharma and exchange of abusive
words. Sharma held his right hand and twisted it and dashed
him to the door, he got injured in his palm which got swollen
and when he started beating his wife, Sharma ran away from
the place.
8.1 In wake of both the complaints, the case has to be
appreciated by analysing the evidence. In the statement under
Section 313 of the Criminal Procedure Code (for short
'Cr.P.C.') the accused had reiterated the facts of the
complaint and had stated that seeing his wife with another
man in his house in a compromising position and when his
wife and her paramour assaulted him, he suddenly got
excited, and lost control of his mind. He has stated that the
paramour of his wife had assaulted him and his wife had
threatened him that if he would come in between them, then
they would not allow him to live. The accused has further
stated in his statement that Harshadkumar Sharma had
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beaten him with a wooden log and there was scuffle between
them, he got frightened, that he would be killed therefore to
protect his life, as he could lay his hand on a wooden log for
his own defense, and in grave and sudden provocation he lost
control and during the quarrel his wife sustained injuries,
thereafter they slept, and at early morning when he woke up
and tried to wake his wife at that time he felt that his wife had
died and therefore he immediately informed his superior
officer and informed the police. He also stated that he has also
filed complaint against Harshadkumar Sharma and police had
arrested him. Accused also stated that he had taken the
treatment from Government Hospital. Accused had produced
the counterfoil of charge sheet and a copy of the charge
against Harshadkumar Sharma in his further statement.
8.2 Thus, there are three types of evidence against accused.
Two complaints given by him to the police, his extra-judicial
confession and his statement under Section 313 Cr.P.C. All
are the accused statement. The plea of self defence and grave
and sudden provocation had been taken by the accused in his
statement under Section 313 Cr.P.C.. Accused states that he
was suddenly provoked by seeing his wife in a compromising
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condition with her paramour. The plea of self-defence is also
taken on the ground that his wife has threatened, even on
behalf of her paramour. Accused has in the complaint against
Sharma stated that Sharma had also assaulted by holding his
hand and then by twisting the hand had dashed him to the
door, and in the scuffle, present accused received injury on
the palm. Accused stated that because of grave and sudden
provocation he had beaten his wife who subsequently died.
9. The law in regard to further statement of accused under
Section 313 Cr.P.C., has been dealt with by the Hon'ble
Supreme Court in the case of Premchand v. State of
Maharashtra, (2023) 5 SCC 522, wherein it was recorded
as under:
"14. A Bench of three Hon'ble Judges of this Court in
State of U.P. v. Lakhmi [State of U.P. v. Lakhmi, (1998) 4
SCC 336 : 1998 SCC (Cri) 929] has extensively dealt with
the aspect of value or utility of a statement under Section
313 CrPC. The object of Section 313CrPC was explained
by this Court in Sanatan Naskar v. State of W.B. [Sanatan
Naskar v. State of W.B., (2010) 8 SCC 249 : (2010) 3 SCC
(Cri) 814] The rationale behind the requirement to
comply with Section 313CrPC was adverted to by this
Court in Reena Hazarika v. State of Assam [Reena
Hazarika v. State of Assam, (2019) 13 SCC 289 : (2019) 4
SCC (Cri) 546] . Close on the heels thereof, in Parminder
Kaur v. State of Punjab [Parminder Kaur v. State of
Punjab, (2020) 8 SCC 811 : (2020) 3 SCC (Cri) 914] , this
Court restated the importance of Section 313CrPC upon
noticing the view taken in Reena Hazarika [Reena
Hazarika v. State of Assam, (2019) 13 SCC 289 : (2019) 4
SCC (Cri) 546] and M. Abbas v. State of Kerala [M. Abbas
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v. State of Kerala, (2001) 10 SCC 103 : 2002 SCC (Cri)
1270] .
15. What follows from these authorities may briefly be
summarised thus:
15.1. Section 313CrPC [clause (b) of sub-section (1)] is a
valuable safeguard in the trial process for the accused to
establish his innocence.
15.2. Section 313, which is intended to ensure a direct
dialogue between the court and the accused, casts a
mandatory duty on the court to question the accused
generally on the case for the purpose of enabling him to
personally explain any circumstances appearing in the
evidence against him.
15.3. When questioned, the accused may not admit his
involvement at all and choose to flatly deny or outrightly
repudiate whatever is put to him by the court.
15.4. The accused may even admit or own incriminating
circumstances adduced against him to adopt legally
recognised defences.
15.5. An accused can make a statement without fear of
being cross-examined by the prosecution or the latter
having any right to cross-examine him.
15.6. The explanations that an accused may furnish
cannot be considered in isolation but have to be
considered in conjunction with the evidence adduced by
the prosecution and, therefore, no conviction can be
premised solely on the basis of the Section 313
statement(s).
15.7. Statements of the accused in course of examination
under Section 313, since not on oath, do not constitute
evidence under Section 3 of the Evidence Act, yet, the
answers given are relevant for finding the truth and
examining the veracity of the prosecution case.
15.8. Statement(s) of the accused cannot be dissected to
rely on the inculpatory part and ignore the exculpatory
part and has/have to be read in the whole, inter alia, to
test the authenticity of the exculpatory nature of
admission.
15.9. If the accused takes a defence and proffers any
alternate version of events or interpretation, the court
has to carefully analyse and consider his statements.
15.10. Any failure to consider the accused's explanation
of incriminating circumstances, in a given case, may
vitiate the trial and/or endanger the conviction.
16. Bearing the above well-settled principles in mind,
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every criminal court proceeding under clause (b) of sub-
section (1) of Section 313 has to shoulder the onerous
responsibility of scanning the evidence after the
prosecution closes its case, to trace the incriminating
circumstances in the evidence against the accused and to
prepare relevant questions to extend opportunity to the
accused to explain any such circumstance in the evidence
that could be used against him...."
10. In background of the law laid down, what is to be
considered is that the explanation of the accused cannot be
solely relied for conviction, the Court must find the connection
with the evidence adduced by prosecution witness. The
answers given by accused are relevant for finding truth and
examining the veracity of the prosecution case. The statement
of the accused has to be read as a whole to test the
exculpatory nature of confession. If the accused offers defence
and an alternative version of events and interpretation is put
worth the Court has to analyse and consider accused
statement.
11. Prosecution to prove the injuries suffered by the wife
examined P.W.1 - Doctor Rameshchander Goderji Chauhan,
who conducted autopsy. He as a Medical Officer along with
Doctor Nagori were on duty at Civil Hospital Godhra on
01.08.1995, at that time, constable Buckle No.1030 came with
dead body of Dhirajben Hasmukhbhai, he and panel Doctor
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Nagori examined the dead body. Report in respect of
examination of dead body was prepared by Doctor Nagori
under his signature. P.W.1 also deposed that as a panel
Doctor he too had put his signature in the postmortem report
Exh.8.
11.1 As per the deposition of P.W.1, the deceased was a
Hindu woman aged about 25 years. She was wearing purple
colour skirt (Chaniyo) and white dress, which were stained
with blood. Stool had passed through anus and her body was
healthy and cold. From back to neck, blood clots were found,
face was swollen and her closed eyes were black and mouth
was closed. Her stomach was swollen and tongue was in the
mouth. No fluids was seen coming out from her mouth and
nose. There were no injuries on the private part, while several
external as well internal injuries were found during
examination.
12. The P.M. Note No.153/97, Exh.8, of deceased Dhirajben
Hasmukhbhai Vasava, 23 years female, notes the following
injuries:
Head: (i) abrasion over left frontal prominence 3 × 3 cm.
(ii) C.L.W. over right temporal region left to right eye 1
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cm × ½ cm × bone deep
(iii) both eyes black eye
(iv) diffuse swelling all over scalp on palpation.
Neck: abrasion over suprasternal region 6 cm × 0.5 cm.
Chest: (i) bruise over right side above nipple 10 cm × 1.5 cm
horizontal
(ii) bruise over right chest 8 cm below nipple parallel
to 1st bruise - 11 cm × 1.5 cm
(iii) bruise over left side of chest 8 cm × 1.5 cm at level
of 5th rib.
Right Upper Limb:
(i) bruise over front of shoulder 9 × 1.5 cm.
(ii) C.L.W. over left aspect of upper 1/3 of upper arm
circular 0.6 cm diameter × bone deep.
(iii) bruise over injury No.2, 6 cm × 1.4 cm horizontal
Left Upper Limb:
(i) bruise over left shoulder anterolateral side 7 cm ×
1.5 cm.
(ii) C.L.W. circular 0.6 cm diameter × bone deep at
lower 1/3 of upper arm.
(iii) swelling over lower end of forearm - radious - ulna
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lower end.
Back: (i) bruise over lumbar region 2 in number parallel to
each other horizontal (1) 10 cm × 2 cm (2) 11 cm ×
2 cm
(ii) bruise over right side over iliac crest 10 cm × 2 cm
Right lower Limb:
(i) abrasion over left side of right thigh vertically 13
cm×0.5 cm
(ii) bruise over right knee above patella 5 cm × 2 cm.
Left lower Limb:
(i) abrasion at lower end of left thigh 5 × 2 cm.
(ii) bruise over left knee below patella 3 cm × 2 cm.
12.1 Doctor Rameshchander Goderji Chauhan - P.W.1 further
deposed that all the injuries were before death and the injury
on liver was sufficient to cause death.
12.2 The injuries, as referred were on head, neck chest, right
and upper limb, back and left lower limb.
12.3 Doctor P.W. 1 has further deposed about accused
Hasmukhbhai Bhurabhai, that, he had come at their hospital
on 31.07.1997 with the yadi of Godhra Taluka Police Station,
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who was examined by Doctor Gupta. P.W.1 identified the
signature of Doctor Gupta. P.W.1 was deposing, as Doctor
Gupta had gone to Karnataka and was not in a position to
come shortly. The certificate was produced as Mark 4/9, and
on perusing it, the Doctor has testified that there was ½ x ½
cms. size bruise and back side of right hand palm was reddish,
and while pressing the same accused was feeling pain. This
injury could be inflicted by solid substance. This injury was
single. The accused also made complaint of pain on back side
of both thighs. The certificate was produced at Exh.9.
12.4 In the cross-examination, P.W.1 could state that
generally the weight of liver is 1 ½ to 2 k.g. The liver becomes
abnormal due to disease. If the liver is abnormal due to
disease, it can rupture even with a simple push. Doctor denied
of chances of survival in cases of liver rupture and affirmed
that no fracture can be caused by the muddamal wooden log.
Due to kick and fist blows the ribs would be broken. Due to
breakage in fifth and eighth ribs, there was possibility of liver
rupture. Apart from the injuries on the ribs, the other external
injuries were normal in nature and those other injuries were
curable. Fracture of the bones in hand can occur due to fall or
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can be caused while colliding with the wall.
12.5 In the P.M. report the cause of death was noted as
shock due to internal hemorrhage due to rupture of liver and
multiple injuries.
12.6 The injuries of the accused and the injuries caused to
the deceased becomes a comparable factor in the plea of self-
defence.
13. The prosecution has relied on the evidence of P.W.2 and
P.W.3 to demonstrate accused conduct and for the evidence of
extra-judicial confession of the accused before the witnesses.
13.1 P.W.2 - Vasantkumar Ratilal Suthar was examined since
he was the person, who was asked to come with an ambulance
in GEB quarters. The witness stated that on 31.07.1997, he
was serving as an ambulance driver at Godhra Civil Hospital.
On that day, early morning at 6:00, two persons had come in
Jeep in his quarters and informed him that one lady was ill
who was to be taken to Civil Hospital and asked him to come,
therefore, he had gone to E/2 GEB quarters at Lilesra area.
The witness stated that the quarter was on the ground floor.
On entering the quarter he saw a woman covered with a
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blanket. Her husband Hasmukhbhai Bhurabhai Vasava was
present there and when he asked him as to what had
happened husband informed that his wife was sick, when he
removed the blanket from the face of the lady, he saw that she
was hurt on the head. He further moved the blanket and saw
injury on the neck and when he inquired from Hasmukhbhai,
as had found that the woman had been beaten, at that time,
he was told that during the night there was a quarrel between
them and thereafter she died. The witness stated that
Hasmukhbhai had asked him to inform the police as well as
the neighbours. The witness P.W.2 stated that thereafter he
returned back to the hospital and from there he dialed the
police on number 100, police had replied to him.
13.2 The fact becomes clear from the evidence of this
witness that two persons had gone to Civil Hospital from the
quarter to call him with the ambulance. When the witness
observed the woman by removing the blanket from the face,
his observation of the injury on the head and neck made him
question the accused, who before him had stated about the
physical quarrel and thereafter witness told the accused that
the lady had died. The evidence which has come through
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P.W.2 had not been denied by the accused in his further
statement. It appears that P.W.2 had informed the police by
dialing through number 100.
13.3 In the cross-examination of P.W.2, the fact becomes
noticeable is that this witness had also given deposition on
21.01.1998 in a criminal case against Harshadkumar Sharma
entering the house of accused. The witness was confronted
with the question that he had not got it recorded before the
police in his statement that accused had informed that his
wife was ill, to that witness denied. In other words when
P.W.2 had gone to the house of the accused he was informed
by the accused that his wife was ill. It was on that basis
actually the ambulance driver had come to that place, so
would not be considered as any major contradiction. The
further cross-examination suggests that when the witness had
reached the room of the accused, he had seen accused sitting
beside his wife, accused was terrified. P.W.2 does not
recollect whether the persons who had come to call him in
GEB jeep were the officers of GEB. The fact of the wife's
death because of quarrel becomes evident. P.W.2 had seen
the injury on the head and neck. Accused admits in his
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statement under Section 313 Cr.P.C. of informing P.W.2 about
his quarrel with his wife during the night.
14. P.W.3 is the officer of GEB, Jayantilal Kantilal Sariam,
who on 31.07.1997 was Deputy Engineer in Godhra Gujarat
Electricity Board office. At that time, accused Hasmukhbhai
was serving as senior clerk in his office. The witness stated
that accused was residing in E/2 quarter of the colony which
was in Lilesara connected with GEB office. Along with the
accused, his wife was staying with him. The witness was also
residing in the same colony in C/1. The witness stated that in
the morning at 4 O' clock accused Hasmukhbahi had come to
his quarter and had informed him that his wife had died, and
asked for a vehicle. This witness stated that when he had
inquired from the accused as to how his wife died, the
accused stated before him, that since her blood pressure
increased she died. The witness denied to give his vehicle and
asked to bring an ambulance. When he inquired about the
ambulance he came to know that a driver had come with the
ambulance from the Civil Hospital. He had not met the driver
of the ambulance.
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14.1 The witness P.W.3 stated that in his office there was a
typist called Harshadkumar Ramanlal Sharma, who was
staying opposite the house of the accused. The witness stated
that when his police statement was recorded he had informed
the police that the accused had told him that his wife was
having illicit relation with Harshadbhai and the accused had
also informed this witness that since his wife was having such
a relation, therefore he had beaten her, and so she died.
14.2 In the cross-examination the witness does not recollect
whether he had gone with his jeep for the ambulance in Civil
Hospital and also does not recollect that since he had asked,
so the driver of the Civil Hospital had come with the
ambulance. The witness also affirmed that he had given
deposition in criminal case against Harshad Sharma on
31.07.1997, who had entered the house of the accused.
14.3 The evidence of this witness would clarify, that about
4:00 in the morning the accused had gone to this witness
asking for his vehicle and this witness had asked the accused
to call for the ambulance. The accused had informed him of
his wife having illicit relation with Harshadbhai, who was a
typist in their office and he had given deposition in the
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criminal case on the ground that Harshad Sharma had
entered the house of the accused on 31.07.1997. The accused
had also stated before this witness that because of the illicit
relation he had beaten his wife, who had died. No fact of
Harshad Sharma having beaten the accused is coming out in
the testimony of this witness P.W.3. So before both these
witnesses P.W.2 and P.W.3, accused had admitted of his
beating the wife and subsequent of her death. The statement
before these witnesses by accused, falls in the category of
extra-judicial confession.
15. The neighbour of the accused - Abdul Sattar Ismaile
Bely was examined as P.W.4. According to the witness
accused was staying at the ground floor in quarter No.E/2. He
was residing opposite the quarter of the accused in F/1 with
his family. The witness stated that accused was residing with
his wife and a small child. On 31.07.1997 police had called
him to record his statement. At that time, when he was asked,
he had informed that the wife of the accused is lying dead and
he had come to know that accused had killed her because of
their internal quarrel. According to the witness since they
were sleeping in their quarter he had no information about
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the incident. The witness was declared hostile by the Public
Prosecutor, and in the cross-examination by the Public
Prosecutor the witness affirmed that Ranjeetbhai had
informed him that Hasmukhbhai had beaten his wife during
night time and she died. Further, Ranjeetbhai had also told
him that the deceased was having illicit physical relation with
neighbour Harshadbhai and as the accused was suspicious of
the illicit relation of his wife Dhirajben with Sharma Typist, at
that night, by giving fisticuff he had beaten her and then by
dashing her with the wall, and had beaten her with the
wooden log, therefore, she died.
15.1 In the cross-examination from the side of the accused,
P.W.4 had affirmed of giving deposition in the police case
against typist Sharma. The witness does not know whether
the accused himself had given the complaint.
15.2 The evidence of this witness-P.W.4 would suggest that
Ranjeetbhai had informed him about accused beating his wife
and dashing his wife with the wall and because of that she had
died. The accused was suspicious of his wife having illicit
physical relation with Harshadbhai. This evidence, which the
witness, P.W.4, could give would only be the information given
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by Ranjeetbhai. The prosecution had not examined witness
Ranjeetbhai. The relevancy of the evidence of this witness
would be to the extent of the information conveyed to him by
Ranjeetbhai. The witness himself had come to know that the
accused has killed his wife because of their internal quarrel.
P.W.4's evidence would be hearsay evidence, but would be
relevant to consider the corroboration.
15.3 The third set of evidence is the complaint by the
accused before the police. In one, complainant is in a capacity
of an accused and another as a complainant, against
Harshadbhai Sharma, the alleged paramour of accused wife.
16. P.W.5 is the Police Officer before whom the accused had
given the complaint. P.W.5 - Bhairavsinh Salamsinh Parmar
was senior police sub-inspector at Godhra Taluka Police
Station on 31.07.1997. Accused Hasmukhbhai Bhurabhai
Vasava gave his complaint before him with the details. The
complaint was recorded, as narrated, and was sent for
registration of the offence. The witness stated that P.S.O.
registered the FIR, and offence under Section 302 IPC was
registered and the papers were sent to P.W.5 for further
investigation.
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16.1 Police witness P.W.5 further stated that for the inquest
of the deceased he had sent yadi to Executive Magistrate. The
place of offence was shown by the complainant in presence of
panchas and at that time he had produced chock, which was
seized. The clothes of the deceased sent by the doctor seized
through the panchnama, were sent for FSL examination. The
abstract of attendance register was seized from GEB office.
Since there were sufficient evidence against the accused
charge sheet was filed. The complaint was registered on
31.07.1997 at 14:00 hours and accused was produced before
the Court.
17. The Investigating Officer has reteriated in the testimony
the complaint which was given by the accused before him.
The Investigating Officer stated that the complaint was
recorded of the accused by his writer under his observation.
The accused had signed the complaint in his presence and he
too had singed the complaint, as given before him. The
Investigating Officer stated that the facts in the complaint are
true. The complaint came to be adduced in evidence at
Exh.14.
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17.1 The Investigating Officer received Wardhi from the
control room and had reached the place at 8:00 in the
morning. The complaint was recorded at the place of incident
and thereafter sent to police station. The dead body was sent
to the hospital and there the inquest panchnama was drawn.
17.2 The Investigating Officer has also stated that the
accused had filed a complaint against Harshadkumar R.
Sharma as I-Cr. No.176/97 under Sections 452, 323, 504 of
the IPC. The photocopy of the complaint was placed in
evidence at Exh.27. The Investigating Officer stated that as
per the complaint, criminal case was filed against Sharma.
17.3 In the cross-examination of the Investigating Officer, it
has come on record that the date of complaint against Sharma
and the complaint in the present matter were the same and
the complaints were given together. He affirmed that the case
against Sharma was filed of trespassing the house of the
accused from the rear door, and the statement of the
witnesses of the present matter were recorded in the case
against Sharma and P.W.5 too had given deposition as
Investigating Officer in the case against Sharma.
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17.4 The result of that case has not been brought on record
of the trial Court. Admitted position now becomes clear that
the same set of witnesses were examined in both the cases,
however it appears that the trial were conducted separately.
18. Section 452 of the IPC would be necessary to be
referred since the accused as a complainant had moved the
criminal machinery on the ground that Harshadkumar Sharma
had entered his house and accused had seen his wife and
Harshadkumar Sharma in compromising position. The plea of
the accused is of grave and sudden provocation.
18.1 Section 452 of IPC reads as under:
"452. House-trespass after preparation for hurt,
assault or wrongful restraint.-- Whoever commits
house-trespass, having made preparation for causing hurt
to any person or for assaulting any person, or for
wrongfully restraining any person, or for putting any
person in fear of hurt, or of assault, or of wrongful
restraint, shall be punished with imprisonment of either
description for a term which may extend to seven years,
and shall also be liable to fine."
19. House trespassing could be proved in view of the
criminal complaints filed. But, the intention and preparation
for hurt, assault or wrongful restraint would have been
examined in criminal trial of I-Cr. No.176/97 against Sharma.
The judgment of that matter is not the part of trial. Nor the
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trial in connection to that complaint was jointly dealt with the
present matter.
20. Prior to the complaint to the police, the accused had
met the ambulance driver of Civil Hospital, and his superior
officer almost about 4 O' clock in the morning. The evidence
of those witnesses became relevant to consider the aspect of
confession of guilt by the accused, which would, as referred
earlier, takes the form of extra-judicial confession, governed
by Section 24 of the Indian Evidence Act, 1872. An extra-
judicial confession, defined as a confession made outside a
Court or to someone other than a Magistrate, often to private
individual, it is to be proved as voluntary, and truthful. It
becomes relevant under Section 24 of the Evidence Act, if
made voluntarily and not induced by threat or promise, such
confession cannot be presumed in law to be a weak type of
evidence. It depends on the facts and circumstances of each
case.
21. P.W.2 the ambulance driver was the first person, who
had seen the injury on the head and neck of the deceased.
Accused had informed P.W.2 of physical quarrel with his wife.
P.W.2 there and then had told the accused that his wife was
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dead.
21.1 Prior to P.W.2 reaching the place of the accused, P.W.3
was told on the phone by the accused, when he had asked for
a vehicle, that his wife had died because of high blood
pressure. The witness - P.W.3 had got it recorded in the police
statement regarding accused informing him about his wife
having illicit relation with Harshadbhai and that he had
beaten his wife to death.
22. The 'confession' and the 'admission' of offence by the
accused, before P.W.2 and P.W.3 becomes relevant evidence.
Admissions and confessions are exceptions to the 'hearsay'
rules. The evidence Act places them in the province of
relevance, presumably on the ground that they being
declaration, against the person making them, they are in all
probability true. The probative value of an 'admission' or
'confession' does not depend upon its communication to
another. Like any other piece of evidence,
admission/confession can be admitted in evidence for drawing
an inference of truth. An 'admission' or 'confession' to be
relevant must pertains to a 'fact in issue' or a 'relevant fact'.
The evidentiary value of extra-judicial confession must be
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judged in the facts situation of each case. It would depend not
only on the nature of the circumstances but also the time
when the confession had been made and the credibility of the
witness who testifies thereto. Evidentiary value of extra-
judicial confession depends upon trustworthiness of the
witness before whom the confession had been made. Law does
not contemplates that the evidence of the extra-judicial
confession should in all cases be corroborated. An extra-
judicial confession, if voluntary, can be relied upon by the
Court along with other evidence.
22.1 P.W.5 is the Investigating Officer before whom the
accused had given his complaint, he told the police of beating
his wife to death. Here, before informing the police, the
accused had told P.W.2 of his quarrel with the wife and her
death and before P.W.3 had stated about his wife having illicit
relation with Harshadbhai and therefore accused had beaten
her to death. The information which P.W.4 had, was through
Ranjeetbhai, who was not examined by the prosecution,
hence, the information with P.W.4 would be hearsay witness
but could be valued for corroboration. The immediate
statement prior to the complaint was before P.W.3 and
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thereafter before P.W.2, which becomes extra-judicial
confession. The statement by the accused before P.W.3 and
P.W.2 was given voluntarily, the statement of accused before
P.W.2 was in his ambulance driver capacity and P.W.3 as his
superior officer. The confession by accused before P.W.2 and
P.W.3 early in the morning was voluntary.
22.2 As noted herein above, on the very same time, both the
complaints came to be filed; one by accused of killing his wife
and another by the accused against Harshadkumar Sharma
giving details of the physical scuffle and exchange of words.
The Investigating Officer has affirmed of I-Cr.No.176/97 under
Sections 452, 323 and 504 of IPC filed against Harshadkumar
Sharma. The Investigating Officer as well as P.W.4 - Abdul
Sattar Ismaile Bely, who was the resident of the same colony
staying opposite the house of the accused, P.W.3 - Deputy
Engineer as superior officer and P.W.2 the ambulance driver
all have affirmed that they had deposed in the criminal
proceeding, which was filed against Harshadkumar Sharma.
22.3 The confession of accused before P.W.2 and P.W.3
about his guilt and hitting his wife to death, the evidentiary
value of the extra-judicial confession depends upon the person
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before whom confession has been made. The confession made
by an accused could be rendered irrelevant in criminal
proceeding, if the making of the confession appears to the
Court to have been caused in inducement, threat or promise
with reference to the charge against the accused. The
confession, if it is voluntarily, truthful, reliable and beyond
reproach is an efficacious piece of evidence to establish the
guilt of the accused. The witnesses need not reproduced the
exact word spoken by the accused. The law on this aspect has
been dealt with in the case of Ajay Singh Vs. State of
Maharashtra, AIR SC 2188, the Hon'ble Supreme Court had
expressed its opinion as under:
"As regards extra judicial confession though it is not
necessary that the witness should speak the exact words
but there cannot be vital and material difference. It is not
invariable that the Court should not accept such evidence
if actual words as claimed to have been spoken by accused
are not reproduced and the substance is given. It will
depend on circumstance of the case. If substance itself is
sufficient to prove culpability and there is no ambiguity
about import of the statement made by accused, evidence
can be acted upon even though substance and not actual
words have been stated. Human mind is not a tape
recorder which records what has been spoken word by
word. That would rule out possibility of erroneous
interpretation of any ambiguous statement."
23. Evidentiary value of extra-judicial confession was
considered in the case of Podyami Sukada v. Sate of
Madhya Pradesh, (2010) 12 SCC 142, it has been observed
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in para 12 as under:
"12. Evidentiary value of extra-judicial confession
depends upon trustworthiness of the witness before whom
confession is made. Law does not contemplate that the
evidence of an extra-judicial confession should in all cases
be corroborated. It is not an inflexible rule that in no case
conviction can be based solely on extra-judicial confession.
It is basically in the realm of appreciation of evidence and
a question of fact to be decided in the facts and
circumstances of each case."
23.1 In Gura Singh v. State of Rajasthan, (2001) 2 SCC
205, the Hon'ble Supreme Court has held as under:
"Extra Judicial Confession, if true and voluntary, it can be
relied upon by the court to convict the accused for the
commission of the crime alleged. Despite inherent
weakness of extra-judicial confession as an item of
evidence, it cannot be ignored when shown that such
confession was made before a person who has no reason
to state falsely and to whom it is made in the
circumstances which tend to support the statement. That
the evidence in the form extra-judicial confession made by
the accused to witnesses cannot be always termed to be a
tainted evidence. Corroboration of such evidence is
required only by way of abundant caution. If the Court
believes the witness before whom the confession is made
and is satisfied that the confession was true and
voluntarily made, then the conviction can be founded on
such evidence alone. It is not open to the court trying the
criminal to start with a presumption that extra-judicial
confession is always a weak type of evidence. It would
depend on the nature of the circumstances, the time when
the confession is made and the credibility of the witnesses
who speak for such a confession."
24. Here the confession by the accused before P.W.3, who is
the superior officer of the accused, was made in a natural
course while the accused had gone to the officer asking for
vehicle to take his wife to hospital and he had informed the
superior officer of beating his wife resulting in death and also
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of his wife having illicit relation with Sharma. P.W.2 was a
person, who was not related to the accused but had come to
the place on being called as a driver of ambulance of the Civil
Hospital. P.W.2 was told that the wife of the accused was ill,
but when P.W.2 saw the injury on the head and the neck and
when he found that the wife of accused was dead, at that
time, accused had confessed about his crime. This extra-
judicial confession before P.W.2 and P.W.3 is voluntary in
nature. If the evidence relating to the extra-judicial confession
is found credible after being tested on the touchstone of
credibility and acceptability it can solely be formed the basis
of conviction. The requirement of corroboration is the matter
of prudence and not an invariable rule of law. Thus, conviction
can follow on the basis of the extra-judicial confession of his
guilt.
24.1 The first information given by the accused would bear
importance in the present matter under Section 8 of the
Evidence Act to conisder his conduct to appreciate the fact
that accused himself has given the FIR. The inculpatory
statement before the police, as laid down by the provision of
evidence Act is inadmissible in evidence though voluntarily
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given.
25. In the case of Aghnoo Nagesia v. State of Bihar, AIR
1966 SC 119, the Hon'ble Supreme Court has observed as
under:
10. Section 154 of the Code of Criminal Procedure
provides for the recording of the first information. The
information report as such is not substantive evidence. It
may be used to corroborate the informant under section
157 of the Evidence Act or to contradict him under section
145 of the Act, if the informant is called as a witness. If the
first information is given by the accused himself, the fact of
his giving the information is admissible against him as
evidence of his conduct under section 8 of the Evidence
Act. If the information is a non-confessional statement, it is
admissible against the accused as an admission under
section 21 of the Evidence Act and is relevant. But a
confessional first information report to a police officer
cannot be used against the accused in view of section 25 of
the Evidence Act.
11. The Indian Evidence Act does not define
"confession". For a long time, the courts in India adopted
the definition of "confession" given in Article 22 of
Stephen's Digest of the Law of Evidence. According to that
definition, a confession is an admission made at any time
by a person charged with crime, stating or suggesting the
inference that he committed that crime. This definition was
discarded by the Judicial Committee in Pakala
Narayanaswami v. King-Emperor, (1939) LR 66 IA 66,
81. Lord Atkin observed :
"....no statement that contains self exculpatory matter
can amount to confession, if the exculpatory statement
is of some fact which if true would negative the offence
alleged to be confessed. Moreover, a confession must
either admit in terms the offence, or at any rate
substantially all the facts which constitute the offence.
An admission of a gravely incriminating fact, even a
conclusively incriminating fact, is not of itself a
confession, e.g., an admission that the accused is the
owner of and was in recent possession of the knife or
revolver which caused a death with no explanation of
any other man's possession."
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These observations received the approval of this Court in
Palvinder Kaur v. State of Punjab (1952) 2 SCC 177. In
State of U.P. v. Deoman Upadhyaya (1961) 1 SCR 14,
21, Shah, J. referred to a confession as a statement made
by a person stating or suggesting the inference that he has
committed a crime.
12. Shortly put, a confession may be defined as an
admission of the offence by a person charged with the
offence. A statement which contains self-exculpatory
matter cannot amount to a confession, if the exculpatory
statement is of some fact which, if true, would negative the
offence alleged to be confessed. If an admission of an
accused is to be used against him, the whole of it should be
tendered in evidence, and if part of the admission is
exculpatory and part inculpatory, the prosecution is not at
liberty to use in evidence the inculpatory part only. The
accused is entitled to insist that the entire admission
including the exculpatory part must be tendered in
evidence. But this principle is of no assistance to the
accused where no part of his statement is self-exculpatory,
and the prosecution intends to use the whole of the
statement against the accused.
13. Now, a confession may consist of several parts and
may reveal not only the actual commission of the crime but
also the motive, the preparation, the opportunity, the
provocation, the weapons used, the intention, the
concealment of the weapon and the subsequent conduct of
the accused. If the confession is tainted, the taint attaches
to each part of it. It is not permissible in law to separate
one part and to admit it in evidence as a non-confessional
statement. Each part discloses some incriminating fact,
i.e., some fact which by itself or along with other admitted
or proved facts suggests the inference that the accused
committed the crime, and though each part taken singly
may not amount to a confession, each of them being part of
a confessional statement partakes of the character of a
confession. If a statement contains an admission of an
offence, not only that admission but also every other
admission of an incriminating fact contained in the
statement is part of the confession.
14. If proof of the confession is excluded by any
provision of law such as section 24, Section 25 and Section
26 of the Evidence Act, the entire confessional statement
in all its parts including the admissions of minor
incriminating facts must also be excluded, unless proof of
it is permitted by some other section such as Section 27 of
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the Evidence Act. Little substance and content would be
left in Sections 24, 25 and 26 if proof of admissions of
incriminating facts in a confessional statement is
permitted.
17. A little reflection will show that the expression
"confession" in Sections. 24 to 30 refers to the confessional
statement as a whole including not only the admissions of
the offence but also all other admissions of incriminating
facts related to the offence. Section 27 partially lifts the
ban imposed by Sections 24, 25 and 26 in respect of so
much of the information whether it amounts to a
confession or not, as relates distinctly to the fact
discovered in consequence of the information, if the other
conditions of the section are satisfied. Section 27 distinctly
contemplates that an information leading to a discovery
may be a part of the confession of the accused and thus,
fall within the purview of Sections 24, 25 and 26. Section
27 thus shows that a confessional statement admitting the
offence may contain additional information as part of the
confession. Again, Section 30 permits the Court to take
into consideration against a co-accused a confession of
another accused affecting not only himself but the other
co-accused. Section 30 thus shows that matters affecting
other persons may from part of the confession.
18. If the first information report is given by the accused
to a police officer and amounts to a confessional statement,
proof of the confession is prohibited by Section 25. The
confession includes not only the admission of the offence
but all other admissions of incriminating facts related to
the offence contained in the confessional statement. No
part of the confessional statement is receivable in evidence
except to the extent that the ban of Section 25 is lifted by
Section 27."
26. So accordingly the confessional statement before police
of the accused would not be admissible in evidence. However,
if the First Information Report is given by the accused
himself, the fact of his giving information is admissible against
him as evidence of his conduct under Section 8 of the
Evidence Act. The confessional First Information Report to a
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Police Officer cannot be used against the accused in view of
Section 25 of the Evidence Act.
27. The accused has raised a defence that act of beating his
wife was under grave and sudden provocation, as he had seen
his wife and her paramour in a compromising condition. In the
case of Vijay alias Vijaykumar Vs. State represented by
Inspector of Police, reported in 2025 (1) SCR 896, the
Hon'ble Supreme Court had the occasion to consider case,
where the Trial Court thought fit to give the benefit of
Exception-1 of Section 300 IPC on the ground that the case
was one of grave and sudden provocation and accordingly
held appellant guilty of offence punishable under Section 304
Part-I of IPC and sentenced him to five years of rigorous
imprisonment and fine. The fact of the case was that the
appellant along with his friend including P.W.11 had gone to
watch a movie. Returning home at mid-night hours after
watching the movie, while sleeping beneath a bridge, they
found deceased over there, in an inebriated condition. The
deceased was heavily drunk who picked up altercation with
the appellant and his friend, at that point of time appellant
picked a cement brick which was lying at the place of
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occurrence and hit the deceased on his head. The deceased
succumbed to head injuries.
28. The reference of Section 300 of IPC defining murder and
differentiating it with culpable homicide not amounting to
murder would be relevant to be made. The accused has placed
reliance on Exception-1 to Section 300 IPC. The relevant part
of the definition is reproduced herein below:
"Section 300 Murder.-- Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by which
the death is caused is done with the intention of causing
death, or--...
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 above exception is 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.
Explanation - Whether the provocation was grave and
sudden enough to prevent the offence from amounting to
murder is a question of fact."
29. The Hon'ble Supreme Court in the referred judgment of
Vijay alias Vijaykumar (supra) dealt with the applicability of
Exception-1 of Section 300 IPC in the following terms:
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"18. Exception one of Section 300 states that a culpable
homicide is not murder if the offender, whilst deprived of
the power of self-control by grave and sudden provocation,
causes death of the person who gave the provocation or
causes the death of any other person by mistake or
accident.
19. It is well established that Exception 1 to Section 300
can apply when the accused is shown to have deprived of
power of self- control by grave and sudden provocation
which is caused by the person whose death has been
caused.
20. It is not each and every provocation that will reduce
the crime from murder to culpable homicide not
amounting to murder. The provocation must be both grave
and sudden. In order to invoke the benefit of the
exception, it must be established that the act committed
by the accused was a simultaneous reaction of grave as
well as sudden provocation which deprived him of the
power of self-control. If the provocation is grave but not
sudden, the accused cannot get the benefit of this
exception. Likewise, he cannot invoke the exception where
the provocation though sudden is not grave."
29.1 The observation explains that in a case of culpable
homicide not amounting to murder, to invoke the benefit of
Exception-1, it must be proved that the accused was deprived
of self-control because of 'grave and sudden provocation' and
thereby causes death of the person who gave the provocation
or causes the death of any other person by mistake or
accident. The 'grave and sudden provocation' must be by the
person whose death has been caused. Not every and each
provocation will reduce the crime from murder to culpable
homicide not amounting to murder. The provocation must be
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both 'grave' as well as 'sudden'. If the provocation is 'grave;
but not 'sudden' the accused cannot get the benefit of this
Exception. In the same way he cannot get the benefit, where
the provocation is though 'sudden' but is not 'grave'. It must
be established that the act committed by the accused was a
simultaneous reaction of grave as well as sudden provocation
which deprive him of the power of self control.
30. Here in this case, as per the complaint the accused was
suspicious of his wife having relation with Harshadkumar
Sharma, typist clerk in GEB and because of that suspicion he
was keeping watch on the movement. According to the
complaint he became suspicious one week prior to the
incident. The complaint was given on 31.07.1997 and the
accused stated that on 30.07.1997 during the night hours
after watching T.V. he and his wife and son all were sleeping
in the same room and since he was doubting the fidelity of his
wife he pretended to sleep and during that time at 0.30 hours
at night of 31.07.1997 his wife stood up and entered the next
room and at that time Sharma had come in his house from the
rear door and he heard both of them in intimate relation,
therefore he stood up from his bed, and on entering the next
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room he saw his deceased wife and the other person in the
compromising state and seeing so he got angry and suddenly
when he confronted them, deceased wife told him that if he
would come in between both of them, then he would not be
left alive, therefore he got further enraged. Sharma fled away
from the place.
30.1 The compromising situation, which he saw of his wife
and the paramour could be considered as grave and sudden
provocation, taking into consideration our Indian Society and
the law. The accused was for about a week, watching the
movement of his wife and when he ultimately saw wife and
her paramour together on 31.07.1997 at 0:30 hours in
intimate relation in his own house, the accused got angry and
he suddenly confronted, and when he scolded, the wife
retorted telling the accused that if he would come in between
them then he would be done to death. So the accused got
further enraged. As per the fact in the complaint, which led to
the trial of the accused, the paramour Sharma had run away
from the place. There is no mention of any physical assault by
Sharma.
30.2 The facts of the case, as has come by way of complaint
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on the record that it was the wife of the accused who on her
own-self and on behalf of the paramour threatened to kill the
husband, if he would dare to come in between them. This
utterance of the wife further provoked the husband, the
accused started beating his wife with fisticuffs and dashed her
to wall and thereafter with the chock gave a blow on her head,
which he could lay hand in the earthen stove of the house. He
stated that he had beaten his wife on the forehead with the
chock, thereafter, accused and his wife together slept on the
bed and according to the complainant during the night time,
his wife stepped down from the bed and slept on the ground,
and when he woke up at about 2:45 for drinking water, he
tried to wake up his wife twice or thrice by shaking her,
ultimately found her dead.
31. The evidence as per the complainant was that he gave
kick and fist blows, then he dashed his wife to the wall and
then with chock he gave a blow on the forehead. The accused
had given his wife incessant beating and she sustained
injuries as described by the doctor, such injuries were made
out of grave and sudden provocation. When he saw on
31.07.1997 in the wee hours, his wife with the paramour he
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lost self-control, thus the case under Exception-I of Section
300 could be said to be proved, hence, the case would not be
of murder but of culpable homicide not amounting to murder
punishable under Section 304 IPC.
31.1 The accused is sentenced under Par-II of Section 304
IPC. If there is intent and knowledge then the same would be
a case of Section 304 Part-I and if it is only a case of
knowledge and not intention to cause murder of bodily injury
then the same would fall under Section 304 Part-II. The intent
along with knowledge to the act cannot be attributed to the
accused, in the case on hand. He had suspicion on his wife's
fidelity, but may not have contemplated, that his wife would
establish physical relation with the neighbour, as her
paramour, in his own house. The provocation cannot be said
to be sought on voluntarily provoked by the offender, as an
excuse for killing or doing harm to his wife, thus the
Exception-1 of Section 300 would not fall under the proviso to
consider it a deliberate act of killing the wife. The accused
had caused injury with fisticuff and slamming his wife to the
wall, then subsequently he could pick up fire wood (chock)
from the room, and hit his wife. It was not that while
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pretending to sleep, had any weapon in his hand awaiting to
murder the wife. After the quarrel both again went to sleep.
Then, when the accused woke at night for drinking water he
tried to wake his wife, but found her dead. The cause of death
was internal hemorrhage due to rupture of liver and multiple
injuries.
31.2 In the statement under Section 313 Cr.P.C. the accused
had alleged of assault by the paramour Sharma. The right of
self-defence had been put forward. The complaint against
Harshadkumar Sharma gives details of scuffle with Sharma
and exchange of abusive words and Sharma holding accused's
arm and twisted and dashing him to the door, thereby accused
got injured in his palm. The doctor witness has testified
accused injury.
32. In the case of Ex. Ct. Mahadev Vs. The Director
General, Boarder Security Force & Ors., 2022 LiveLaw
(SC) 551, the Hon'ble Supreme Court has observed that the
right of private defence is necessarily a defensive right which
is available only when the circumstances so justify it. It was
further held that such a right would be available to the
accused when he or his property is faced with a danger and
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there is little scope of the State machinery coming to his aid.
At the same time, the courts must keep in mind that the
extent of the violence used by the accused for defending
himself or his property should be in proportion to the injury
apprehended. It is further observed that step to step analysis
of the injury that was apprehended and the violence used is
not required to be undertaken by the Court; nor is it feasible
to prescribe specific parameters for determining whether the
steps taken by the accused to invoke private self-defence and
the extent of force used by him was proper or not. The Court's
assessment would be guided by several circumstances
including the position on the spot at the relevant point in time,
the nature of apprehension in the mind of the accused, the
kind of situation that the accused was seeking to ward off, the
confusion created by the situation that had suddenly cropped
up resulting in the knee jerk reaction of the accused, the
nature of the overt acts of the party who had threatened the
accused resulting in his resorting to immediate defensive
action, etc. The underlying factor should be that such an act
of private defence should have been done in good faith and
without malice.
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32.1 In Ex. Ct. Mahadev (supra), the Hon'ble Supreme
Court has held that Section 105 of the Indian Evidence Act,
1872 states that the burden of proof rests with the accused
who takes up the plea of self defence. In the absence of proof,
the Court will not be in a position to assume that there is any
truth in the plea of self defence. Thus, it would be for the
accused to adduce positive evidence or extract necessary
information from the witnesses produced by the prosecution
and place any other material on record to establish his plea of
private defence, Hon'ble Supreme Court has referred to the
judgment of James Martin vs. State of Kerala, (2004) 2
SCC 203, wherein it has been observed as under in Para (13):
"13. .........An accused taking the plea of the right of
private defence is not necessarily required to call
evidence; he can establish his plea by reference to
circumstances transpiring from the prosecution evidence
itself. The question in such a case would be a question of
assessing the true effect of the prosecution evidence, and
not a question of the accused discharging any burden.
Where the right of private defence is pleaded, the
defence must be a reasonable and probable version
satisfying the court that the harm caused by the accused
was necessary for either warding off the attack or for
forestalling the further reasonable apprehension from the
side of the accused. The burden of establishing the plea
of self-defence is on the accused and the burden stands
discharged by showing preponderance of probabilities in
favour of that plea on the basis of the material on record.
(See Munshi Ram v. Delhi Admn. (AIR 1968 SC 702),
State of Gujarat v. Bai Fatima ((1975) 2 SCC 7, State,
State of U.P. v. Mohd. Musheer Khan [(1977) 3 SCC 562]
and Mohinder Pal Jolly v. State of Punjab [(1979) 3 SCC
30].... .... The accused need not prove the existence of the
right of private defence beyond reasonable doubt. It is
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enough for him to show as in a civil case that the
preponderance of probabilities is in favour of his plea."
32.2 In Ex. Ct. Mahadev (supra), the Hon'ble Supreme
Court has observed that whether in a particular set of
circumstances, a person legitimately acted in the exercise of
the right of private defence is a question of fact to be
determined on the facts and circumstances of each case. No
test in the abstract for determining such a question can be
laid down. In determining this question of fact, the court must
consider all the surrounding circumstances. A plea of right of
private defence cannot be based on surmises and speculation.
While considering whether the right of private defence is
available to an accused, it is not relevant whether he may
have a chance to inflict severe and mortal injury on the
aggressor. The entire incident must be examined with care
and viewed in its proper setting. The injuries received by the
accused, the imminence of threat to his safety, the injuries
caused by the accused and the circumstances whether the
accused had time to have recourse to public authorities are all
relevant factors to be considered, while determining whether
right of private defence was available or not.
32.3 In Ex. Ct. Mahadev (supra), the Hon'ble Supreme
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Court by referring the judgment of Buta Singh v. State of
Punjab, (1991) 2 SCC 612, had observed that Supreme Court
had emphasised that a person who is apprehending death or
bodily injury, cannot weigh in golden scales on the spur of the
moment and in the heat of circumstances, the number of
injuries required to disarm the assailants who were armed
with weapons. Referring to the said decision, the Hon'ble
Supreme Court had extended the following observations in
James Martin (supra):
"17. ...... In moments of excitement and disturbed mental
equilibrium it is often difficult to expect the parties to
preserve composure and use exactly only so much force
in retaliation commensurate with the danger
apprehended to him. Where assault is imminent by use of
force, it would be lawful to repel the force in self-defence
and the right of private defence commences, as soon as
the threat becomes so imminent. Such situations have to
be pragmatically viewed and not with high-powered
spectacles or microscopes to detect slight or even
marginal overstepping. Due weightage has to be given to,
and hyper technical approach has to be avoided in
considering what happens on the spur of the moment on
the spot and keeping in view normal human reaction and
conduct, where self-preservation is the paramount
consideration. But, if the fact situation shows that in the
guise of self-preservation, what really has been done is to
assault the original aggressor, even after the cause of
reasonable apprehension has disappeared, the plea of
right of private defence can legitimately be negatived.
The court dealing with the plea has to weigh the material
to conclude whether the plea is acceptable. It is
essentially, as noted above, a finding of fact.
XXX
20. The right of private defence is essentially a
defensive right circumscribed by the governing statute
i.e. IPC, available only when the circumstances clearly
justify it. It should not be allowed to be pleaded or
availed as a pretext for a vindictive, aggressive or
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retributive purpose of offence. It is a right of defence, not
of retribution, expected to repel unlawful aggression and
not as a retaliatory measure. While providing for exercise
of the right, care has been taken in IPC not to provide
and has not devised a mechanism whereby an attack may
be a pretence for killing. A right to defend does not
include a right to launch an offensive, particularly when
the need to defend no longer survived."
32.4 In Dharam and Ors. v. State of Haryana, (2007) 15
SCC 241, the Hon'ble Supreme Court had an occasion to
examine the scope of the right of private defence and had
made the pertinent observations, which reads as under:
"18. Thus, the basic principle underlying the doctrine of
the right of private defence is that when an individual or
his property is faced with a danger and immediate aid
from the State machinery is not readily available, that
individual is entitled to protect himself and his property.
That being so, the necessary corollary is that the violence
which the citizen defending himself or his property is
entitled to use must not be unduly disproportionate to the
injury which is sought to be averted or which is
reasonably apprehended and should not exceed its
legitimate purpose. We may, however, hasten to add that
the means and the force a threatened person adopts at
the spur of the moment to ward off the danger and to
save himself or his property cannot be weighed in golden
scales. It is neither possible nor prudent to lay down
abstract parameters which can be applied to determine
as to whether the means and force adopted by the
threatened person was proper or not. Answer to such a
question depends upon a host of factors like the
prevailing circumstances at the spot, his feelings at the
relevant time, the confusion and the excitement
depending on the nature of assault on him, etc.
Nonetheless, the exercise of the right of private defence
can never be vindictive or malicious. It would be
repugnant to the very concept of private defence."
33. The situation in which the plea of a right to private
defence would be available to the accused was discussed by
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the Hon'ble Supreme Court in case of Bhanwar Singh and
Others v. State of Madhya Pradesh, (2008) 16 SCC 657,
wherein it was held as under:
"50. The plea of private defence has been brought up by
the appellants. For this plea to succeed in totality, it must
be proved that there existed a right to private defence in
favour of the accused, and that this right extended to
causing death. Hence, if the court were to reject this
plea, there are two possible ways in which this may be
done. On one hand, it may be held that there existed a
right to private defence of the body. However, more harm
than necessary was caused or, alternatively, this right did
not extend to causing death. Such a ruling may result in
the application of Section 300 Exception 2, which states
that culpable homicide is not murder if the offender, in
the exercise in good faith of the right of private defence
of person or property, exceeds the power given to him by
law and causes the death of the person against whom he
is exercising such right of defence without premeditation,
and without any intention of doing more harm than is
necessary for the purpose of such defence. The other
situation is where, on appreciation of facts, the right of
private defence is held not to exist at all.
Xxx
60. To put it pithily, the right of private defence is a
defence right. It is neither a right of aggression or of
reprisal. There is no right of private defence where there
is no apprehension of danger. The right of private
defence is available only to one who is suddenly
confronted with the necessity of averting an impending
danger not of self-creation. Necessity must be present,
real or apparent."
34. Exception-2 to Section 300 IPC provides for exercising
right of private defence of person or property, but the law
does not entertain any intention of doing more harm than is
necessary, for the purpose of such defence.
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34.1 Exception-2 of Section 300 IPC is reproduced herein
after:
"Exception 2.-- Culpable homicide is not murder if the
offender, in the exercise in good faith of the right of
private defence of person or property, exceeds the power
given to him by law and causes the death of the person
against whom he is exercising such right of defence
without premeditation, and without any intention of doing
more harm than is necessary for the purpose of such
defence."
35. Learned advocate Mr. Parghi's argument was to give
benefit to the appellant-accused under Section 100 and
Section 300 Exception-1, while relying upon the judgment in
Raghavan Achari alias Njoonjappan (supra), wherein it
was held as under:
"The compromising position in which the appellant
found the deceased with his wife gave the appellant the
grave and sudden provocation. This provocation was
further aggravated when the appellant found the
deceased taking further offence of causing grievous
injuries, one of which was found by the trial Court and
the High Court to be of serious nature, and in the
circumstances the right as envisaged under Section 100
became available to the appellant. No court expects the
citizens not to defend themselves particularly when they
have already suffered grievous injuries. Though the
appellant had a chopper in his hand he did not initially
use it against the deceased and it was only when the
deceased succeeded in using the oil lamp, which is
described as dangerous weapon by the High Court, which
caused multiple injuries including grievous injury, that
the appellant's provocation got further aggravated and it
cannot be said on the facts and circumstances of the case
that the appellant has exceeded his right of private
defence."
35.1 The judgment of Raghvan Achari (supra) referred by
learned advocate Mr. Parghi becomes distinguishable on the
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facts. The deceased in that matter instead of running away,
sprang at the appellant and fisted him on his forehead. There
was a tussle between them. The deceased was alleged to have
hit the appellant with a lamp and the appellant sustained
injuries (1) a lacerated injury on the lower lip, (2) contusion
above left eye, (3) contusion on the dorsum of left hand and
(4) avulsion of lower lip on the lower gum margin with a
lacerated injury. The Discharge Certificate of appellant
disclosed multiple injuries on lower lip, left side of scalp and
crack fracture on the 5th metacarpal. The injury on the
metacarpal was considered serious. In the view of the injuries
sustained by the appellant inflicted by the deceased, the
benefit of Section 100 IPC was granted considering the death
as of private defence.
36. Here in the present case, the wife died and the facts of
the case shows that the wife had only orally threatened the
accused. The complaint given by the appellant as accused
shows that the paramour had run away from the place. He
had not waited there, while the wife had come forward and
stood before Sharma to confront the appellant-accused as
husband.
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37. The plea of self-defence is taken in accused statement
under Section 313 Cr.P.C. It is not the case of accused that he
killed his wife in good faith exercising the right of private
defence. The complaint of the accused against Harshadkumar
Sharma Exh.27 had culminated into criminal proceeding
registered under Sections 452, 323, 504 of IPC. Witnesses of
the present matter had testified in that criminal trial against
Harshadkumar Sharma. The same Investigating Officer had
deposed in both the criminal proceeding. Benefit of Exception-
2 of Section 300 IPC could be claimed only against the person,
who is the assailant. The person, who assaulted the appellant-
accused faced the trial. It is not the accused case nor it could
be brought on record, that accused murdered his wife in
private defence apprehending death by any physical assault
by his wife. So the case of the appellant-accused could only be
weighed under Exception-1 of Section 300 IPC, of causing
death of wife under 'grave and sudden provocation', having
lost the power of self-control, so benefit under Section 100
IPC cannot be claimed by the accused. Thus, the case being of
Culpable Homiside not amounting to murder, the punishment
would be under Section 304 of IPC. The intention of causing
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death of the wife cannot be attributed to the accused, hence
the case would not fall under Part-I of Section 304 IPC.
38. In the result, there is no reason to interfere in the
judgment of conviction and sentence passed under Section
304 IPC Part-II. The learned Trial Court Judge has considered
the merits of the case and declared the judgment in
accordance to the provision of law.
39. In view of the above observations and discussions, the
appeal stands dismissed. The judgment of conviction and
sentence dated 12.09.2001 passed by learned Additional
Sessions Judge, Panchmahal, Godhra in Sessions Case No.100
of 1998 is upheld. The bail bond stands cancelled. The
accused to surrender before the jail authority, within fifteen
(15) days of this order to serve the sentence. In failure, to
surrender within 15 days, the Trial Court concerned is
directed to issue arrest warrant against the present appellant-
accused. Record & Proceedings be sent back to the
concerned trial Court forthwith.
(GITA GOPI,J)
Pankaj/1 (Suppl.-II)
