High Court of Meghalaya
Shri Phot Khaii vs The State Of Meghalaya on 24 May, 2024
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No.01
Supplementary List
HIGHCOURTOFMEGHALAYAAT
SHILLONG
Crl.A.No.3/2024 with
Crl.M.C.No.11/2024
Reserved on: 16.05.2024
Pronounced on: 24.05.2024
Shri Phot Khaii ... Appellant
-Vs-
1. The State of Meghalaya, represented
by the Secretary, Home Department,
Government of Meghalaya, Shillong.
2. The Superintendent of Police,
East Jaintia Hills District, Meghalaya.
3. The Officer-in charge, Khliehriat Police Station,
East Jaintia Hills District, Meghalaya.
...Respondents
Coram:
Hon'ble Mr. Justice S. Vaidyanathan, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Appellant : Mr. Philemon Nongbri, Adv. with
Mr. W.G.R. Mihsil, Adv
For the Respondents : Mr. N.D. Chullai, AAG with
Ms. R. Colney, GA
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes
Page 1 of 21
JUDGMENT
(Made by Hon'ble, the Chief Justice)
The Appellant, who is an accused in Sessions CaseNo.68 of 2021 on
the file of the Sessions Judge/Addl DC (Judicial), East Jaintia Hills District,
Khliehriat, was convicted by the Trial Court for the offence under Section
302IPC as follows:
Sl.No. Offence Conviction and Sentence
1. Section 302 IPC To undergo Rigorous Life
Imprisonment with a fine of
Rs.50,000/-in default to undergo
Simple Imprisonment for 5 months
and the fine amount shall be paid
to the complainant/son of the
deceased.
The Trial Court held that the convict is entitled to the benefit of Section 428
Cr.P.C. and the period already undergone in prison was ordered to be set
off. Aggrieved by the order of the Sessions Judge/Addl DC (Judicial), East
Jaintia Hills District, Khliehriat, dated 07.11.2023, the Appellant has
preferred this Criminal Appeal before this Court.
2. The case of the prosecution in brief is that based on the complaint
dated 16.05.2002 given by one Shri Pdianghun Dkhar, who is the son of the
deceased, that his father Oli Siangshai was murdered by the appellant, a
case in Khliehriat PS Case No.27(5) 2002 under Section 302 IPC came to
be registered. According to the prosecution, the accused, on seeing the
deceased, who was the ex-husband of the wife of the accused in his house
murdered him with his axe. The complainant (son of the deceased) / P.W.2
and one Shri Phulwis Siangshai (relative of the deceased) / P.W.10 were
examined by the Police under Section 161 Cr.P.C. The Police conducted
inquest over the body, which was lying inside the house of Smti Bles Lamo
/ wife of the deceased (P.W.3) in the presence of P.Ws.1 and 10 and
thereafter, sent the body to SDM&HO, Jowai Civil Hospital for post
mortem. The accused, after commission of the offence, surrendered himself
before the Police.
3. On completion of investigation, a charge sheet in C.S.No.15 of
2003 dated 17.06.2003 was laid before ADM of Jowai Court and was
subsequently, made over to the Sessions Judge/Addl DC (Judicial), East
Jaintia Hills District, Khliehriat for trial. The prosecution, in order to
substantiate the offences against the accused person, examined 11 witnesses
and marked 10 documents. Statements under Section 164 Cr.P.C. were
obtained from P.W.3 (wife of the accused), P.W.4 (younger sister of P.W.3)
and P.W.11 (sister of P.W.3). The accused confessed before the Magistrate,
which was marked as Ex.P7 and he was also questioned under Section 313
Cr.P.C. The Trial Court, after analyzing the evidence let in by the
prosecution, found the accused guilty of the offence and convicted him as
stated supra.
4. Learned counsel for the Appellant/ accused submitted that the
conviction on the accused was entirely based on the statement of the wife
of the deceased (P.W.3) and the rest of the witnesses were hearsay
witnesses. Even P.W.3 herself had confessed that when the accused
entered her house, the deceased, who was her ex-husband was present in
the house and on seeking his presence in the house with his wife, out of
sudden burst, he committed the offence of murder. According to him,
there was no premeditation on the part of the accused, as he lost temper on
account of the act of his wife, who was seen in a compromising position
with the deceased in her bedroom. He further submitted that though the
occurrence had taken place as early as on 16.05.2002, the witnesses,
especially P.W.3, were examined after a lapse of nearly 10 years and by
that time, the memory would have faded and there was every chance to
introduce new stories and intricacies. Learned counsel for the accused, in
support of his submission, strongly relied upon the following judgments of
the Hon'ble Supreme Court:
i) Abdul Rehman Antulay & ors vs. R.S. Nayak & anr,
reported in (1992)1 SCC 225;
"86. In view of the above discussion, the following
propositions emerge, meant to serve as guidelines. We must
forewarn that these propositions are not exhaustive. It is difficult
to foresee all situations. Nor is it possible to lay down any hard
and fast rules. These propositions are:
(1) Fair, just and reasonable procedure implicit in Article
21 of the Constitution creates a right in the accused to be tried
speedily. Right to speedy trial is the right of the accused. The
fact that a speedy trial is also in public interest or that it serves
the societal interest also, does not make it any the less the right
of the accused. It is in the interest of all concerned that the guilt
or innocence of the accused is determined as quickly as possible
in the circumstances.
(2) Right to Speedy Trial flowing from Article 21
encompasses all the stages, namely the stage of investigation,
inquiry, trial, appeal, revision and retrial. That is how, this Court
has understood this right and there is no reason to take a
restricted view.
(3)The concerns underlying the right to speedy trial from
the point of view of the accused are:
(a) the period of remand and pre-conviction detention
should be as short as possible. In other words, the accused
should not be subjected to unnecessary or unduly long
incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his
vocation and peace, resulting from an unduly prolonged
investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the
ability of the accused to defend himself, whether on account of
death, disappearance or non-availability of witnesses or
otherwise.
(4) At the same time, one cannot ignore the fact that it is
usually the accused who is interested in delaying the
proceedings. As is often pointed out, "delay is a known defence
tactic". Since the burden of proving the guilt of the accused lies
upon the prosecution, delay ordinarily prejudices the
prosecution. Non-availability of witnesses, disappearance of
evidence by lapse of time really work against the interest of the
prosecution. Of course, there may be cases where the
prosecution, for whatever reason, also delays the proceedings.
Therefore, in every case, where the Right to speedy trial is
alleged to have been infringed, the first question to be put and
answered is - who is responsible for the delay? Proceedings
taken by either party in good faith, to vindicate their rights and
interest, as perceived by them, cannot be treated as delaying
tactics nor can the time taken in pursuing such proceedings be
counted towards delay. It goes without saying that frivolous
proceedings or proceedings taken merely for delaying the day of
reckoning cannot be treated as proceedings taken in good faith.
The mere fact that an application/petition is admitted and an
order of stay granted by a superior court is by itself no proof that
the proceeding is not frivolous. Very often these stays are
obtained on ex parte representation.
(5) While determining whether undue delay has occurred
(resulting in violation of Right to Speedy Trial) one must have
regard to all the attendant circumstances, including nature of
offence, number of accused and witnesses, the workload of the
court concerned, prevailing local conditions and so on - what is
called, the systemic delays. It is true that it is the obligation of
the State to ensure a speedy trial and State includes judiciary as
well, but a realistic and practical approach should be adopted in
such matters instead of a pedantic one.
(6) Each and every delay does not necessarily prejudice
the accused. Some delays may indeed work to his advantage. As
has been observed by Powell, J. in Barker "it cannot be said how
long a delay is too long in a system where justice is supposed to
be swift but deliberate". The same ideal has been stated by
White, J. in U.S. v. Ewell in the following words:
„...the Sixth Amendment right to a speedy trial is
necessarily relative, is consistent with delays, and has
orderly expedition, rather than mere speed, as its
essential ingredients; and whether delay in completing a
prosecution amounts to an unconstitutional deprivation
of rights depends upon all the circumstances.‟
However, inordinately long delay may be taken
as presumptive proof of prejudice. In this context, the
fact of incarceration of accused will also be a relevant
fact. The prosecution should not be allowed to become a
persecution. But when does the prosecution become
prosecution, again depends upon the facts of a given
case.
(7) We cannot recognize or give effect to, what is called
the 'demand' rule. An accused cannot try himself; he is tried by
the court at the behest of the prosecution. Hence, an accused's
plea of denial of speedy trial cannot be defeated by saying that
the accused did at no time demand a speedy trial. If in a given
case, he did make such a demand and yet he was not tried
speedily, it would be a plus point in his favour, but the mere
non-asking for a speedy trial cannot be put against the accused.
Even in USA, the relevance of demand rule has been
substantially watered down in Barker and other succeeding
cases.
(8) Ultimately, the court has to balance and weigh the
several relevant factors - 'balancing test' or 'balancing process' -
and determine in each case whether the right to speedy trial has
been denied in a given case.
(9) Ordinarily speaking, where the court comes to the
conclusion that right to speedy trial of an accused has been
infringed the charges or the conviction, as the case may be, shall
be quashed. But this is not the only course open. The nature of
the offence and other circumstances in a given case may be such
that quashing of proceedings may not be in the interest of
justice. In such a case, it is open to the court to make such other
appropriate order - including an order to conclude the trial
within a fixed time where the trial is not concluded or reducing
the sentence where the trial has concluded - as may be deemed
just and equitable in the circumstances of the case.
(10) It is neither advisable nor practicable to fix any time-
limit for trial of offences. Any such rule is bound to be qualified
one. Such rule cannot also be evolved merely to shift the burden
of proving justification on to the shoulders of the prosecution. In
every case of complaint of denial of right to speedy trial, it is
primarily for the prosecution to justify and explain the delay. At
the same time, it is the duty of the court to weigh all the
circumstances of a given case before pronouncing upon the
complaint. The Supreme Court of USA too as repeatedly refused
to fix any such outer time-limit inspite of the Sixth Amendment.
Nor do we think that not fixing any such outer limit in
effectuates the guarantee of right to speedy trial.
(11) An objection based on denial of right to speedy trial
and for relief on that account, should first be addressed to the
High Court. Even if the High Court entertains such a plea,
ordinarily it should not stay the proceedings, except in a case of
grave and exceptional nature. Such proceedings in High Court
must, however, be disposed of on a priority basis."
ii) S.P.S. Rathore vs. Central Bureau of Investigation & anr,
reported in (2017 ) 5 SCC 817;
"55. With regard to sentence of the Appellant-
accused, the learned Senior Counsel on his behalf has
pointed out certain mitigating factors which are - old age of
the appellant-accused, health ailments, responsibility of
looking after the unmarried daughter suffering from
congenital heart disease, past meritorious service and
prolonged trial. Keeping in view the aforementioned factors
especially the old age and physical condition of the
appellant-accused, we do not think it expedient to put him
back in jail. While we uphold the findings as to the guilt of
the appellant-accused, we are of the opinion that the cause
of justice would be best subserved when the sentence of the
appellant-accused would be altered to the period already
undergone. We, therefore, reduce the sentence of the
appellant to the period already undergone by him as a
special case considering his very advanced age."
5. It was the case put forth by the learned counsel for the
appellant that admittedly, there was a disgruntlement between the accused,
wife and the deceased and even on the date of occurrence, there was an
infuriation, which is evident from the reading of almost all the witnesses
and therefore, the appellant had committed the offence under grave and
sudden provocation. The case squarely falls under first exception to Section
300 of the Indian Penal Code and the appellant ought not to have been
convicted for the offence of murder under Section 302 of the Indian Penal
Code.
6. Per contra, learned Additional Advocate General appearing
for the State contended that even as per the confession statement given by
the accused, it is evident that due to previous enmity and to wreak
vengeance, he had committed the murder of the deceased and therefore, the
prosecution had clearly established the offence committed by the accused.
The depositions tendered by P.W.3 and other witnesses had been duly
corroborated with other evidences. More so, as per the last seen theory, the
accused was found seen with the deceased and it was for the accused to
disprove the same as required under Section 160 of the Indian Evidence
Act, 1872.
7. Learned Additional Advocate General appearing for the
State also contended to strengthen his case that it is sufficient that if the
confession statement is substantiated by other evidence, the accused can be
convicted on the basis of such confession statement and the following case
laws were relied upon by him:
i. Madi Ganga vs. State of Orissa, reported in (1981) 2 SCC
224;
"6. The final submission of the learned counsel was that
even if the confession to the magistrate was accepted as
voluntary it had not been sufficiently corroborated to justify
the conviction of the accused. It is now well settled that in
order to sustain a conviction on the basis of a confessional
statement it is sufficient that the general trend of the
confession is substantiated by some evidence which would
tally with the contents of the confession. General corroboration
is sufficient - vide Subramania Goundan v. State of Madras.
In the present case the confessional statement refers to the
motive for the occurrence. This part of the confession is
corroborated by the evidence of P.W. 1. The confessional
statement refers to the accused having thrown a big stone on
the head of the deceased. This part of the statement is
corroborated by the medical evidence. We think that there was
sufficient general corroboration to justify the High Court
acting upon it. The appeal, is therefore, dismissed."
ii. Shankaria vs. State of Rajasthan, reported in (1978) 3 SCC
435;
"39.It is true that the interval between the preliminary
examination of the appellant and the recording of his
confessionalstatementwasabout15minutes. But there is no
statutory provision in Section 164 Cr.P.C or elsewhere, or
even an executive direction issued by the High Court, that
there should be an interval of 24 hours or more between
the preliminary questioning of the accused and the
recording of his confession. The condition precedent for
recording a confession by the Magistrate in the course of
Police investigation is provided in Section 164(2) Cr.P.C.
which mandates the Magistrate not to record any confession,
unless upon questioning the accused person making it, he has
reason to believe that it is being made voluntarily.
******
42. Although the interval between the preliminary
questioning of the appellant and his confession was about 15
minutes, the appellant had no less than 38 hours at his
disposal, whilst he was in judicial custody free from fear or
influence of the Police, to think and decide whether or not to
make a confession. As noticed already, the appellant was
brought from Ganganagar to Raisingh Nagar on June 12,
1974 because on that day no Magistrate competent to record
the confession of the appellant was available at Ganganagar.
The appellant was admitted to the Judicial lock-up Raising
Nagar under the orders of the Magistrate about orafter4 p.m.
on that date. Thereafter, the appellant continuously remained
in the Judicial lock-up or judicial custody till his confession
wasrecordedonJune12, 1974 from 8.45 a.m. onwards. The
Magistrate, Shri Bansal was aware that the appellant was
continuously in judicial custody since the evening ofJune12,
for about 38 or 40 hours preceding the confession.
49. A suggestion was put to Shri K. P. Srivastava in
cross-examination, that after the confession had been
recorded, the accused was taken to Hanumangarh and the
witness had accompanied him. The witness stoutly refuted
this suggestion that the custody of the accused was, after the
confession, given to him or the investigating Police. He
however, affirmed that the accused was sent to the judicial
lock-up Hanumangarh. There was no good reason to
disbelieve the evidence of the Magistrate (PW 6) and the
Superintendent of Police (PW 22) to the effect that after
recording the confession, the custody of the accused was not
handed to the investigating police."
8. Learned Additional Advocate General went on to add that
the prosecution had clearly established the guilt of the accused through
testimonies about the overt act on the part of the accused. In sum and
substance, it was his submission that since the prosecution was able to
prove the guilt on the part of the accused beyond any reasonable doubt and
that the accused knowing pretty well about the consequences of the attack
on the deceased with axe, attacked him and hence, he is not entitled to any
leniency and prayed for the dismissal of the appeal.
9. We have carefully considered the submissions made on either side
and perused the materials available on record.
10. The theory of the prosecution was that the deceased, namely, Oli
Siangshai was done to death by the accused with his weapon being used in
the paddy field. The main argument advanced by the learned counsel for
the appellant was that except the evidence of P.W.3, there were no direct
eyewitnesses produced by the Police to prove that it was accused, who had
done away with the life of the deceased and that he was implicated in this
case based on his own confession statement. At this juncture, we feel it
appropriate to refer to as to what was the confession statement of the
accused and how the prosecution was able to link the accused with the
crime in corroboration with other evidence and documents. The confession
statement given by the accused is extracted below:
"I Shri Phot Khaii do hereby confess that on 14.05.02 I came to
my home after doing my field (Haldi) work around 4:30 P.M. When I
arrived my home, I saw Shri Oli Siangshai sleeping with my wife which
made me angry. I could not tolerate my temper and picked up a dao and kill
Shri Oli Siangshai who was sleeping with my wife as I am the father of five
children and I do look after them and my wife. Since I am the legal husband
I have got every right to (illegible) for my wife. That is why, I killed Shri.
Oli Siangshai. That‟s all."
On the side of the prosecution, there were eleven witnesses produced to
prove the guilt of the accused and as per the version of P.W.3 given before
the Court in-chief, the deceased, who was her ex-husband visited her house
and she offered him tea and at that time, the accused returned from the
paddy field and on seeing him, there was a quarrel between the deceased
and the accused, as a result of which, the deceased was attacked with axe.
Subsequently, when he attempted to murder her, she ran away from the spot
and had hidden in a jungle. The version of P.W.3 was fortified by the
evidence of P.Ws.4 and P.W.11 (sisters of P.W.3) and P.Ws.4 and P.W.11
stated that they noticed the accused carrying dao (weapon) covered with
blood and the following materials object was seized under Ex.P6 in the
presence of two witnesses:
1) One number of Khasi dao, (wait bnoh)
Length blade one feet (1 ft.)
Back portion length (1ft 1 inch)
Bamboo handle length - 9 ½ inche cover rubber tube (Blade
Colour)
11. P.W.5 / Dr. E.M. Dhar had stated that she had conducted the Post
Mortem on the dead body at 2:00pm on 16.05.2002 and in her opinion, the
cause of death was due to shock and severe hemorrhage following the
injuries caused by sharp object. P.W.5 had reiterated the same opinion in
her examination in-chief. In the Post Mortem report (Ex.P4), the following
injuries were found mentioned with the wounds position, size and
character:
1. Cut injury on the left (illegible) region 5½ x 1½ x bone deep
in size;
2. Cut injury (wound) on the left cheek extending upwards and
laterally to the temporal region of the head cutlery through the
middle of the left ear 5"x1½ x bone deep in size.
3. Amputation of the left hand at the level of the
1stmetaphalaugeal bones. 3½ x 1 in size.
4. Amputation of the shaft of the penis at the base 1"x ½ x½
in size."
12. P.W.5 / Dr. E.M. Dhar had, who had commenced the post-mortem
at about at 2:00pm on 16.05.2002, had noted in her Post Mortem Report
dated 16.05.2002, which is marked as Ex.P.4 that the death would have
been caused with sharp object. From the evidences of P.Ws.3, 4 and 11, it
could be visualized that the deceased had died on account of several cut
injuries and amputation of penis and not by any other mode and thus, their
depositions coupled with the confession statement of the accused that he
attacked the deceased with dao (axe) were duly proved / corroborated with
the medical evidence.
13. In all probabilities, we are of the view that the prosecution has
proved its case beyond reasonable doubt that the appellant had committed
the offence of murder. The only question before us was as to whether the
Court below in convicting the appellant to undergo life imprisonment is
justified or not.
14. At this juncture, the learned counsel for the Appellant raised the
plea of culpable homicide not amounting to murder and there by attempted
to bring this case under Exception1 to Section 300 IPC, so as to have the
benefit of reduction of punishment under Section 304 IPC. In order to
substantiate the said argument, the learned counsel brought to the notice of
this Court the prolonged verbal fights between the parties and on one day,
due to grave and sudden provocation, the accused had caused the death of
the deceased and therefore, the appellant can be convicted for culpable
homicide not amounting to murder and sentenced under Section 304 (i) of
the Indian Penal Code.
15. Admittedly, except P.W.3, there was no direct eyewitness to the
occurrence, purely on account of which, but at the same time, the entire
case of the prosecution cannot be brushed aside. On careful scrutiny of
depositions of various witnesses, the character of P.W.3 (wife of the
accused) creates doubtful in the mind of this Court. There were several
contradictions between her confession statement and deposition before the
Court and in her confession statement (Ex.P2), she had stated as follows:
"On the fateful day, i.e., 15.5.02, the said victim, who
used to be my ex-husband (I have no child (ren) by him) came to
visit my sister‟s house and then came to my own house. Since it
was 3‟o clock in the afternoon, I offered him tea and we had it
together. After an hour or so, my husband had just returned from
the paddy fields, but on seeing the victim, he got very angry and
asked him angrily why he kept on coming to visit my house. I
tried to intervene but it was to no avail, and there itself my
husband (we have 5 children together) hacked the visitor-cum-
victim with the tool he used in the paddy field (i.e. wait (Khasi
term). My husband after committing the misdeed, immediately
took leave, and later I came to know he went to surrender himself
to police. I, myself, then left the victim‟s body in the place where
it had fallen itself, and took shelter for the night in my sister‟s
house nearby. I locked my own house and it was only the day
after that the police came to take the dead body away. That‟s all
madam.
However, in her cross-examination before the Magistrate, she had deposed
as under, which is more or less another confession statement in
contravention, admitting her illegal relationship with her ex-husband:
"18. It is a fact that on 14/04, in the year 2002 Shri Phot
Khaii found me and Oliver Sianghsai naked and in compromising
situation Shri Oliver Siangshai took out his pistol and pointed it
towards Phot Khaii and Phot Khaii ran away however he did not
shoot."
16. The above deposition of P.W.3 creates suspicion in our mind,
because, as per her statement, it was the deceased, who took out pistol first
in order to shoot the accused, as a result of which, the accused ran away
from the shot. In that case, who was the cause for the murder of the
deceased? But, from the above, one thing is clear that P.W.3 had accepted
that she maintained illicit relationship with her ex-husband / deceased and
other witnesses also stated that they noticed the presence of the deceased in
the house of P.W.3. In such an event, there is every possibility for a prudent
man to lose his temper / self-control, when he sees his wife with some other
person in a naked and compromising position, which, though morally
justified, but looking at the legal perspective, is not sustained. Therefore,
we are satisfied that the commission of the offence by the appellant
squarely falls under the provisions of Exception 2 of Section 300, which
contemplates as under:
"Exception 2 to Section 300 IPC - 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."
17. The Apex Court in the case of Bhanwar Singh & ors vs. State of
Madhya Pradesh, reported in (2008) 16 SCC 657 categorically held that in
order to bring the case within this ambit, there is every necessity to establish that
the accused, in the garb of self-defence against the accused caused the death of
the person. If we apply this proposition to the case on hand, the accused, on
noticing the presence of the deceased in his house caused the death of the
deceased in order to safeguard his right over person (wife) without any
premeditation or intention.
18. Human life may be compared to a bicycle, which has two wheels
and the front wheel is a husband and the back wheel is a wife. If there is any
problem with one of the wheels, the cycle (in a sense „family‟) cannot run
smoothly. In this case, because of the extra marital affairs of the wife, which has
been accepted by her in her evidence, the entire family, much less children got
affected.
19. The Apex Court in a recent judgment in the case of Dolly Rani vs.
Manish Kumar Chanchal, reported in MANU/SC/0412/2024, while observing
about a Hindu Marriage emphasized as under:
"26...A marriage is not an event for 'song and dance' and
'wining and dining' or an occasion to demand and exchange dowry
and gifts by undue pressure leading to possible initiation of criminal
proceedings thereafter. A marriage is not a commercial transaction.
It is a solemn foundational event celebrated so as to establish a
relationship between a man and a woman who acquire the status of a
husband and wife for an evolving family in future which is a basic
unit of Indian society...."
20. Even in the great epic Ramayanam, it was stated that Sita was
tested by Rama to prove her chastity by jumping into the fire. In a sacred
relationship, the husband is the property of the wife and vice versa and if one
betrays the other, this type of incident will take place due to sudden provocation
/ emotion.
21. In this case, the wife had betrayed her husband, as she was in a
compromising position with her ex-husband as per her own deposition in cross.
Merely because the deceased is the ex-husband of the wife of the accused, it
does not give her license to maintain her relationship more so illicitly even after
her separation from him and in that event, the establishment of reverential trust
between the husband and wife by way of marriage would be meaningless as held
by the Supreme Court (supra). Thus, we find every justification to convert the
offence within the boundary of Exception. A Division Bench of Allahabad High
Court (way back in the year 1959) in the case of Babu Lal vs. State, reported in
AIR 1960 All 223, held as follows:
"15. Where the husband is living in a fool's paradise and thinks
that the illicit intimacy which might have existed earlier had ceased to
exist because of the changed place of residence or other circumstances
and then suddenly he finds that he was mistaken in his belief and this
intimacy was continuing all the time, this in our opinion would
amount to a sudden knowledge which would come as a shock to him.
The appellant when he came to reside in the Government House
orchard felt that he had removed his wife from the influence of the
deceased and there was no more any contact between them. He had
lulled himself into a false security. This belief was shattered when he
found the deceased at his hut when he was absent. This would
certainly give him a mental jolt and as this knowledge will come all of
a sudden it should be deemed to have given him a grave and sudden
provocation. The fact that he had suspected this illicit intimacy on an
earlier occasion also will not alter the nature of the provocation and
make it any the less sudden. We, therefore, accept the contention
advanced by the counsel for the defence that the circumstances
established in this case prove that the appellant when he killed the
deceased had lost his self-control because of a grave and sudden
provocation.
16. For the reasons given above, we think that an offence under
Section 302 I. P. Code is not made out against the appellant. His
conduct is protected by Exception I to Section 300 I. P. Code. His
offence fells under Section 304 I. P. C. and he can be convicted only
under this section."
22. For the foregoing discussions and on analysis of the entire
circumstances and evidence, we are convinced that the facts of the present case
falls under Exception 2 of Section 300 on the ground of "unintentional" and
consequently, it is a culpable homicide not amounting to murder. Thus, in our
considered opinion, the conviction and sentence passed by the Court below
requires modification, as the facts of the present case clearly falls under
Exception 2 to Section 300 of the Indian Penal Code and therefore, the appellant
is convicted for "culpable homicide not amounting to murder" and he is
sentenced under Section 304 of the Indian Penal code, to undergo Rigorous
Imprisonment for a period of three years.
23. The Apex Court in the case of E x - C t . Mahadev vs. Director
General, Border Security Force & ors, reported in (2022) 8 SCC 502, while
dealing with the provisions of Exception 2 to Section 300 held as follows:
"21. To sum up, the right of private defence is
necessarily a defensive right which is available only when the
circumstances so justify it. The circumstances are those that
have been elaborated in the IPC. Such a right would be
available to the accused when he or his property is faced with
a danger and 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. This is not to say that a step to step
analysis of the injury that was apprehended and the violence
used is 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 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.
22. Being mindful of the afore-stated parameters, we
may examine the plea of self-defence raised by the appellant in
the attending facts and circumstances of the case. The factum
of rampant smuggling in the area has not been disputed by
either side. The records reveal that border fencing in the area
in question had been erected just a few months before the
incident had taken place. Prior to that, many villagers used to
freely indulge in smuggling activities by crossing over to the
Bangladesh side and vice versa. A couple of months after the
fencing had been fixed along the International border with
Bangladesh, there was an incident where smugglers had
assaulted one of the members of the Battalion when he was
trying to prevent them from crossing the border. That the
deceased used to indulge in smuggling activities and his name
was mentioned in the list of smugglers maintained by the BSF,
is also a matter of record."
24. In the case on hand, the offence committed by the accused had been
duly established by the prosecution, which, in our view, amounts to culpable
homicide not amounting to murder, so as to convict the appellant under
Exception 2 to Section 300 of the Indian Penal Code.
25. In the result, this Criminal Appeal is allowed in part and the
conviction and sentence passed by the Court below dated 07.11.2023 made in
Sessions CaseNo.68 of 2021 on the file of the Sessions Judge/Addl DC
(Judicial), East Jaintia Hills District, Khliehriat is modified to the extent that the
Appellant is held guilty for the offence of culpable homicide, not amounting to
murder as contemplated under Exception 2 to Section 300 Indian Penal Code,
thereby attracting the provisions of Section 304 Indian Penal Code. The
Appellant shall undergo Rigorous Imprisonment for three years and to pay a fine
of Rs.50,000/- in default to undergo Simple Imprisonment for 5 months. As
ordered by the Trial Court, the fine amount shall be disbursed to the complainant
/ son of the deceased, if already not paid. It is made clear that the appellant is
entitled for set off in accordance with Section 428 of the Code of Criminal
Procedure for the period of detention already undergone by him.
(W. Diengdoh) (S. Vaidyanathan)
Judge Chief Justice
Meghalaya
24.05.2024
"Lam DR-PS"
PRE-DELIVERY JUDGMENT IN
Crl.A.No.3 of 2024 with
