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CHHANUA v. STATE OF MADHYA PRADESH - CRA--90/1993 [2007] INMPHC 114 (9 February 2007)

CRIMINAL APPEAL NO : 90 OF 1993

PRESENT : Hon'ble Shri Justice Deepak Verma &

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JUDGMENT

Appellant, having been found guilty for commission of an offence under section 302 of the IPC and having been awarded life imprisonment by the judgment dated 7.12.92, passed in S.T.No.19/92 by Sessions Judge, Chhatarpur, has preferred this appeal on various grounds.

2- In short, facts of the case, are as under : (A) In Village Urda Mau, appellant's house was situated in front of the house of Kisna (since deceased) and there existed a small passage in between. On 22.10.91, in the morning, Kisna had some altercation with the wife of appellant Smt. Rukmini (DW-1), on account of spitting of water in the common passage. At that time, appellant had already gone to his field. On his return, he was informed about the aforesaid quarrel by his wife. Between 6 and 7 PM, when Kisna was sitting on the platform of his house and was crushing bakode with mungaria (wooden instrument used for crushing), the appellant came there carrying an axe and inquired as to why did Kisna pick up quarrel with his wife. After some discussion, appellant inflicted three blows with axe on the person of Kisna, who fell down in the small passage from the platform and died soon thereafter. This murderous assault was witnessed by Kattu Bai (PW-2), Chhimma (PW-3), Amna (PW-4), Rambi (PW-5), Murlidhar (PW6) and others. Kuttu Bai informed her husband Mahdeva, nephew of deceased, about the said incident. (B) Mahdeva thereafter went with Punna Chowkidar to Police Station and lodged the FIR (Ex.P/1). Accordingly, case was registered against the appellant. After inquest, dead body of Kisna was sent for post-mortem. During investigation, appellant was arrested and on information being given by him, weapon of offence viz. axe, was recovered from the said place which had blood stains on it. Appellant was wearing kurta and tehmat (dhoti), having blood stains, which were also seized. The autopsy surgeon also preserved Safi, Kurta and Pancha - the clothes worn by the deceased, for forensic examination. In Chemical Examination it has been established that all these articles had human blood.

(C) After completion of the investigation, charge-sheet was filed before the JMFC. The case was committed to the Court of Sessions for trial in accordance with law.

3- Appellant abjured his guilt and submitted that he has falsely been implicated in the case. According to him, when he returned from the field, he was carrying an axe, on his shoulder. His wife was sobbing and informed him that in the morning Kisna had caught hold of her and wanted to violate her chastity. Being enraged, he immediately went to Kisna to ask for the reason for such an indecent behaviour. However, instead of realizing his misdemeanour, Kisna expressed his determination to continue to do so. He again tried to make Kisna understand that being related as uncle, he should not have behaved in such fashion with his nephew's wife. On this, Kisna who was already holding a mungaria ran after him, and attempted twice or thrice to assault him and he tried to save himself with the axe that he was carrying. In the process of, thus defending himself, the injuries were caused to Kisna. Thus, the appellant's defence, in substance, was that on account of sudden and grave provocation, he was not within his control, his thinking capacity was completely marred, and as such, he was not guilty of murder.

4- Prosecution had examined as many as 13 witnesses on its behalf to bring home the charge against the appellant. In defence, DW-1 Rukmani, wife of appellant, and DW-2 Matadeen were examined. On appreciation of evidence available on record, the learned trial Judge found the appellant guilty for commission of the said offences. Hence, this appeal.

5- We have, accordingly, heard Shri S.C. Datt, learned Senior Counsel for the appellant, and Shri Aseem Dixit, learned Government Advocate, at length and perused the record.

6- During the course of arguments, learned Senior Counsel for appellant has not disputed that Kisna's death was homicidal in nature. It has been contended that even if the finding that Kisna had died on account of injuries sustained by him which were inflicted by this appellant with the aid of an axe is affirmed, the appellant would not be guilty of murder as the death of Kisna was caused in the heat of passion resulting from the complaint made by his wife regarding Kisna's attempt to molest her sexually. According to him, the admission of Kisna coupled with his expression of intention to repeat the objectionable behaviour in future amounted to grave and sudden provocation.

7- Apart from the aforesaid concession, it stands proved from the evidence of PW-10 Dr. M.K. Gupta and post-mortem report (Ex.P/8), that deceased Kisna had met with a homicidal death. According to him, death was cumulative effect of the following injuries found on Kisna's person :- (i) Incised wound on forehead measuring 9 x 5 x 7 cms. Frontal bone and frontal sinus bone were cut; (ii) Incised wound on left side of his neck measuring 8 x 4 x 5 cms cutting mandible bone, left carotid artery, food-pipe etc; (iii) Incised wound on the back of his neck measuring 9 x 4 x 3 cms, between cervical vertebrae No. 3 to 6, cutting spinal cord.

8- According to PW-2 Kattu Bai, appellant was sitting in his house and deceased was sitting in front of his house crushing bakode with mungaria. Appellant inquired from deceased as to why there was so much of hue and cry in the morning. Kisna pleaded ignorance. On this, he informed Kisna that he has been informed by his wife about the incident. As soon as she came out from the house, she saw that appellant Chhanua had inflicted three blows with axe that he was carrying with him. Two blows were inflicted on his neck and one was on his forehead. Thereafter, she informed her husband PW-1 Mahdeva about the incident.

9- PW-1 Mahdeva, the lodger of FIR (Ex.P/1), has corroborated the fact that he was informed by his wife Kattu Bai about the same. He had seen Kisna lying in the passage with injuries and by that time he was already dead. He has deposed that he had thereafter gone to Police Station with Punna Chowkidar and lodged the FIR. He was also a witness to inquest memo as also to the spot map, prepared by Police.

10- PW-3 Chhimma, examined by the prosecution as one of the eye- witnesses, did not support its case at all and was thereafter declared hostile.

11- Another eyewitness PW-4 Amna has deposed that in the morning, quarrel between deceased Kisna and wife of appellant ensued due to spitting of water by Kisna after rinsing his mouth. According to him, he being the next door neighbour could overhear the noisy talks between the appellant and Kisna during which the appellant had enquired as to why did Kisna quarrel with his wife and Kisna retaliated by saying that he would continue to fight with all the villagers including the appellant's wife. Although, he admitted that the heated arguments were followed by the murderous assault on Kisna, yet he denied the suggestion that it was witnessed by him. In this way, the evidence of PW-4 Amna lent support to the prosecution version in part. He was also declared hostile but in his cross-examination nothing had come so as to make the defence story probable.

12- PW-5 Ramvi, whose name also figured in the FIR, has deposed that on the date of incident, she was sitting near the door in her house. Appellant had returned in the evening from his field and went to his house. Thereafter, he came out of the house with an axe in his hand. Deceased was sitting on the platform near his house and was crushing bakode. Appellant then went straight to deceased Kisna and inquired from him as to why did he fight with his wife. To this, Kisna replied that, on his own, he did not fight with anyone. Thereupon, Chhannua caused three injuries on the person of deceased with the same axe that he was carrying. Her house appears to be 10 paces away from the house of deceased. In para 5, of her cross-examination, she has also deposed that in the morning there was some altercation between deceased Kisna and wife of appellant, namely Rukmini (DW-1) on account of collection of water. However, she has not supported the defence version that the cause of assault was an indecent assault. She further denied the suggestion that Rukmini was alleging that despite being an old man and her uncle-in-law, Kisna was interested in keeping her as wife. She has admitted that wife of Kisna had died 8-9 years back, but has denied the suggestion that ever since death of wife of Kisna, he use to tease other women. Nothing has come in her cross-examination so as to suggest that she is, in any way, interested in securing conviction of the appellant on the charge of murder.

13- PW-6 Murlidhar is also a witness to the incident. According to him, he had seen the appellant inflicting axe blows while standing at the door of one Hariya. His evidence can not be rejected merely because he was not named as an eyewitness in the FIR. He is also one of the panch witnesses to the inquest memo (Ex.P/4) and spot map (Ex.P/5).

14- PW-12 Pehelwan Singh was Head Constable at Police Chowki Pehra, who had recorded FIR and registered the crime. PW-13 B.S. Yadav is the Investigating Officer. The evidence of PW-7 Jag Prasad, PW-8 Mubarak Ali, PW-9 Ramfal and PW-11 Damru, pertains to seizure of various articles.

15- In defence, appellant had examined DW-1 Rukmini Bai, his wife, and DW-2 Matadeen.

16- According to DW-1 Rukmini Bai, after her husband left for the field, when she was having her bath, deceased Kisna had entered her house and tried to molest her but was desisted by her. According to her, she was pulled by Kisna on account of which she fell in the Bakhri. Thereafter, she started crying and using abusive language against Kisna. According to her, even before return of her husband from the field, she had informed DW-2 Matadeen about the said incident.

17- DW-2 Matadeen has also deposed that when he was returning from his field in the afternoon, he was informed about the incident by DW-1 Rukmini Bai. She was sitting outside her house, crying bitterly on account of the incident and was consoled by this witness. Suggestion was given to him that he is a widower and has some illicit relations with DW-1 Rukmini, to which he denied.

18- DW-1 Rukmini Bai has further deposed that when her husband, the appellant, inquired from Kisna as to why did he do it, Kisna started beating him with mungaria. Initially he tried to save himself with axe, but in the process injuries might have been caused. According to her, about 4-6-10 blows were inflicted with mungaria by deceased on her husband, which landed on both shoulders and on back side. She has further asserted that she had lodged a report against Kisna, but no such report is on record. However, she has clearly admitted in her cross-examination that Kisna had died about 2-4 days after he had entered her house with an intention to molest her and outrage her modesty.

19- As such, there are apparent inconsistencies between the versions of the defence witnesses. Moreover, no explanation has been given by DW-2 Matadeen as to why he did not apprise the appellant of the incident.

20- From the factual scenario of the case, the following salient features are culled out :-

(i) Admittedly, appellant himself had not sustained any injuries, as neither he was medically examined nor any medical report is on record.

(ii) No FIR was lodged either by his wife or by him : Firstly, on account of the attempt of deceased Kisna to molest Rukmini Bai or to outrage her modesty. Secondly, on account of injuries said to have been caused with mungaria by deceased Kisna. (iii) Even though DW-1 Rukmini Bai had ample occasion and time to go to the field of her husband to inform about the incident that had taken place in the morning, she did not do so, instead waited for her husband to return from field. No explanation has been given in this regard.

(iv) The appellant had proceeded to inflict as many as three injuries and all of them on vital parts. As such, it is not a case where only one injury was caused in the heat of passion.

(v) DW-1 Rukmini Bai admitted in clear terms that the incident of murder of Kisna had taken place 2-4 days after the first incident, wherein deceased had tried to molest her and outrage her modesty.

(vi) Evidence would further show that no attempt was made by the appellant to put any question to the prosecution witnesses except Ramvi (PW-5) so as to prove the case of defence, with regard to grave and sudden provocation. As such, statement of accused in answer to question No.48 under section 313 CrPC, does not inspire confidence as the same appears to be an after thought.

21- In the back-drop of these facts and circumstances, we shall now proceed to examine the legal position on the issue. Question as to whether the act of the appellant would fall in Exception (1) to Section 300, of the Indian Penal Code, or not, that is, to say whether there existed sudden and grave provocation caused by deceased Kisna whereby appellant would have lost his self-control ?

22- Supreme Court had the occasion to deal with this aspect in a judgment reported in [1961] INSC 328; AIR 1962 SC 605 ( K.M. Nanavati Vs. State of Maharashtra). It has been held that the test of `grave and sudden' provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed, would be so provoked as to lose his self-control. In India, words and gestures may also under certain circumstances, cause grave and sudden provocation to an accused so as bring his act within the first Exception to Section 300. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.

23- Division Bench of Madras High Court also had the occasion to deal with identical issue reported in AIR 1957 Madras 541 (In re Murugian @ Murugesan, Appellant). The facts of this case are that accused was tried and convicted under section 302 IPC for murdering his wife by inflicting injuries on her by a bichua. In the Sessions Court, the accused made a statement in which he disclosed for the first time the circumstances in which he had stabbed his wife. It was held after considering the entire circumstances of the case that statement given by accused before the Sessions Judge was one that could be accepted as revealing the real circumstances in which the accused was placed when he lost his balance of mind and resorted to stabbing his wife and that those circumstances should be viewed in a liberal manner in the psychological setting, which arose, as constituting grave and sudden provocation. This would clearly reduce the offence of murder into one of culpable homicide not amounting to murder by reason of operation of Exception (1) to Section 300, of the IPC. However, the facts of this case would show that grave and sudden provocation was caused by wife of the accused, who refused to cease her illicit intimacy with Periaswami and categorically stated that she was not ready and willing at all to leave Periaswami, as he had looked after her well, whereas accused had always been abusing her. This ofcourse would cause grave and sudden provocation, whereby a normal human being is likely to lose his self-control, and in passion of heat, he inflicted injuries with bichua on his wife. However, the facts as appearing in the case in hand, do not reveal that the act of the accused could have caused grave and sudden provocation to the appellant, whereby he would have lost his balance.

24- Our High Court also had dealt with similar issue in a judgment reported in 1963 MPLJ 592 (Abdul Majid Mukeemuddin Vs. State of Madhya Pradesh), in which it has been held that grave and sudden provocation connotes something more than a provocative incident, which could constitute only one of the three elements i.e... (i) act of provocation (ii) loss of self- control, both actual and reasonable; and, (iii) the retaliation proportionate to the provocation. These circumstances must be related to each other, particularly in point of time, so that there was no time for passion to cool and the inference of deliberation or design was excluded. The customs, manners, way of life, traditional values must be considered in the case of accused, while applying the test of reasonability. In the first place, provocation must be such as would deprive any reasonable person of his power of self-control over himself, who is not extra-sensitive or unusually excitable. Secondly, the provocation must be of sufficient seriousness to have the result of depriving a reasonable man of his power of self-control. Thirdly, the provocation must be sudden. A provocation however grave, which is not sudden but is a chronic one, will not satisfy the requirements of Exception (1) to Section 300 IPC. The second ingredient is that there must be actual loss of self-control by the accused as a result of sudden and grave provocation received by him. The third ingredient is that the act of killing by the accused must have been done whilst he was deprived of his power of self-control by the grave and sudden provocation i.e... it must be done under the immediate impulse of provocation. The fourth ingredient is that the retaliation must be proportionate to the provocation i.e... the instrument or manner of retaliation should not be grossly dis-proportionate to the offence given.

25- In the light of the judgment as pronounced by our High Court in the matter of Abdul Majid (supra), all the four ingredients for a case to fall within Exception (1) of Section 300 of the IPC, are totally missing in the case in hand, which is manifest from the facts itself.

26- In a recent judgment of the Supreme Court reported in AIR 2006 SC 699 (Subhash Shamrao Pachunde Vs. State of Maharashtra), while considering Section 300 Exception (4), has held that injury No.(i), therefore, went right upto the right of the lung. The appellant herein did not restrain himself after inflicting one injury. He inflicted other and further injury also. The injuries, in view of the post-mortem report, admittedly were more than one. It has further been held as under in paras 27 to 29, which are reproduced hereinbelow :- "27. The distinction between the offences of culpable homicide and murder is the presence of special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater. These attitudes are stated in Section 300 IPC as distinguishing murder from culpable homicide not amounting to murder.

28. The ingredients of the said Exception 4 are (i) there must be a sudden fight; (ii) there was no pre-meditation; (iii) the act was committed in a heat of passion; and, (iv) the assailant had not taken any undue advantage of acted in a cruel manner.

29. In the event the said ingredients are present, the cause of quarrel would not be material as to who offered the provocation or started assault. Indisputably, however, the occurrence must be sudden and not premeditated and the offender must have acted in a fits of anger."

27- In short, while in the case of Exception 1 to Section 300 IPC there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion, which cloud's men's sober reasons and urges them to dead, which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. Sandhya Jadhav (Smt.) vs. State of Maharashtra (2006) 4 SCC 653.

28- However, the act of the appellant as found proved is neither covered under either of these exceptions. Accordingly, he is rightly found guilty of offence of murder punishable under Section 302 IPC.

29- For the foregoing reasons, we are of the opinion that appeal, preferred by the appellant, is devoid of merits and substance. It is accordingly hereby dismissed. The conviction and sentences awarded by the trial Court are hereby affirmed.

30- Appellant Chhanua is on bail. He shall surrender to his bail bonds so as to undergo the remaining part of the sentence, awarded to him. ( DEEPAK VERMA ) ( R.C. MISHRA ) JUDGE JUDGE Aks/-