2014 ALL MR (Cri) 4618
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.K. TAHILRAMANI AND S.S. JADHAV, JJ.

Rajaram Baijanath Bharati Vs. The State of Maharashtra

Criminal Appeal No. 938 of 2005

3rd January, 2013

Petitioner Counsel: Mr. YUG MOHIT CHOUDHARY
Respondent Counsel: Mr. P.S. HINGORANI

(A) Penal Code (1860), Ss.300 Exception 1, 304 Part I - Murder or culpable homicide - Sudden provocation - Newly married bride ran away from house of husband - Husband found her at her sister's house and started questioning her - Suddenly former lover of wife came out from inner room without shirt on his person - Upon seeing this, accused stabbed both former lover and wife which led to their death - Held, when accused suddenly comes to know that his wife and her former lover are living together, it is a case of grave and sudden provocation - Case covered by Exception 1 to S.300 IPC - Conviction would be under S.304-I and not under S.302. (Paras 6, 8, 9)

(B) Penal Code (1860), S.300 Exception 1 - Grave and sudden provocation - Cannot be measured by particular yardstick - Court must consider reaction not of normal man in abstract, but of normal man whose impulses are conditioned by same environment as the accused. (Paras 7, 8)

Cases Cited:
K.M. Nanavati Vs. State of Maharashtra, AIR 1962 SC 605 [Para 6]


JUDGMENT

MRS. V. K. TAHILRAMANI, J. :- Through this Appeal, the Appellant / original accused has challenged the Judgment and order dated 19th January, 2005, passed by the learned Additional Sessions Judge Greater Bombay in Sessions Case No.414 of 2002. By the said Judgment and order, the learned Sessions Judge convicted the Appellant under Sections 302, 452 of the Indian Penal Code (IPC) and Section 37 read with Section 135 of the Bombay Police Act. For the offence punishable under Section 302 of IPC, the Appellant was sentenced to suffer imprisonment for life and to pay a fine of Rs.2000/- ( Rs. Two Thousand) in default, S.I. for two months. For the offence punishable under Section 452 of Indian Penal Code, he was sentenced to S.I. for 7 years and to pay fine of Rs.500/- ( Rs. Five Hundred) in default, S.I. for one month and for the offence punishable under Section 37 read with Section 135 of the Bombay Police Act, he was sentenced to imprisonment for one year. The learned Sessions Judge direct that all the substantive sentences shall run concurrently.

2. The prosecution case, briefly stated, is as under:

P.W.No.1 Shakira was the elder sister of deceased Nazira. Nazira was in love with deceased Yulumali. Nazira along with Yulumali ran away as her parents were against the marriage. Two months thereafter, Nazira returned back to Mumbai with Yulumali. There was a dispute between Nazira and Yulumali because Yulumali refused to marry Nazira. Due to this Nazira was angry and left Yulumali. Thereafter, Nazira married Appellant-Rajaram. Appellant changed Nazira's name to Gayatri. They started residing at Chembur in one room. Nazira resided with Appellant for some days and she again eloped with Yulumali. The incident occurred on 19th February, 2002. Four days prior to the incident Nazira and Yulumali stayed with P.W.1 Shakira at her house. On the day of the incident, Appellant came to the house of Shakira. Nazira was in the outer portion of the house. At that time, Yulumali was sleeping in the rear side room of the house. Appellant knocked the door. Shakira opened the door. Appellant came inside. Shakira gave him a glass of water. There was conversation between Nazira and Appellant. Appellant asked Nazira why she deceived him and left him. Quarrel took place between Nazira and the Appellant. On hearing the commotion, Yulumali who was in the rear room came out of the room. On seeing Yulumali, the Appellant assaulted Yulumali on the chest and neck with a knife. Thereafter, the Appellant also assaulted Nazira with the same knife. Then Shakira went to the police station and lodged First Information Report (FIR). People gathered near Shakira's house. They took Nazira and Yulumali to the hospital. However, both Yulumali and Nazira died on the next day i.e. on 20th February, 2002. Thereafter, investigation commenced. After completion of investigation, charge sheet came to be filed.

3. Charge came to be framed against the Appellant under Sections 302 and 452 of Indian Penal Code (IPC) and under Section 37 read with Section 135 of the Bombay Police Act. The Appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. His further defence is that he caused the death of Nazira and Yulumali on account of grave and sudden provocation. After going though the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the Appellant as stated in paragraph No.1 above, hence, this Appeal.

4. We have heard Dr. Yug Mohit Choudhari, the learned advocate for the Appellant and the learned A.P.P. for the Respondent - State. We have carefully perused the Judgment and order as well as the evidence in this case and also considered the defence of the Appellant. After carefully considering the matter, we are of the opinion that the learned Sessions Judge has rightly come to the conclusion that the Appellant caused death of Nazira and Yulumali by assaulting them with knife.

5. The conviction is mainly based on the evidence of P.W.1 Shakira. Shakira has stated that Nazira was in love with deceased Yulumali. Nazira along with Yulumali ran away as her parents were against the marriage. Two months thereafter, Nazira returned back to Mumbai with Yulumali. Nazira thereafter married to Appellant. The incident occurred on 19th February, 2002. Four days prior to the incident, Nazira and Yulumali stayed with P.W.1 Shakira at her house. On the day of the incident, Appellant came to the house of Shakira. Nazira was in the outer portion of the house. At that time, Yulumali was sleeping in a room in the rear portion of the house. Appellant knocked the door. Shakira opened the door. Appellant came inside. Shakira gave him a glass of water. There was a conversation between Nazira and Appellant. Appellant asked Nazira why she deceived him and left him. Quarrel took place between Nazira and the Appellant. On hearing the conversation, Yulumali who was in the rear room came out of the room. On seeing Yulumali, the Appellant assaulted Yulumali on the chest and neck. Thereafter, the Appellant also assaulted Nazira with the same knife. Then Shakira went to the police station and lodged First Information Report (FIR). P.W.1 Shakira is a direct eye witness to the incident. Her evidence establishes that it was the Appellant who assaulted Nazira and Yulumali with knife which led to their death on the next day. The evidence of Shakira also shows that the Appellant had entered inside her house and thereafter he assaulted Nazira and Yulumali. Her evidence also shows that the Appellant used a knife. Thus, looking to the evidence on record, a case under Section 452 as well as under Section 37 read with Section 135 of the Bombay Police Act is made out.

6. The learned advocate for the Appellant submitted that the case would be covered by Sub-Section 1 of Section 300 i.e. the act was committed on account of grave and sudden provocation. He pointed out the evidence of P.W.1 Shakira, who is the sister of Nazira, P.W.7 Asharbi who is the mother of Nazira and P.W.8 Pappuraj who was the brother-in-law of Yulumali, to show that there was a love affair between Yulumali and Nazira, both of them had eloped. Thereafter, Yulumali refused to marry Nazira, hence, Nazira left Yulumali and got married to the Appellant. Some days after the marriage of Nazira and the Appellant, Nazira left the Appellant and eloped with Yulumali. The Appellant was searching for Nazira. On the day of incident, the Appellant went to the house of P.W.1 Shakira who is the sister of Nazira to make enquiries about Nazira. On enquiry, he found his wife Nazira present in the house. He started questioning Nazira as to why she had deceived him and left him. A quarrel took place between both of them. Yulumali with whom Nazira has eloped was in the inner room. On hearing the quarrel, he came in the outer room. He saw the Appellant was quarreling with Nazira. When the Appellant saw that Yulumali was staying with Nazira in the house of Shakira, Appellant assaulted Yulumali and thereafter the Appellant assaulted Nazira. It is pertinent to note that till the Appellant saw Nazira, he was only questioning her as to why she had left him. He did not know at that point of time that Nazira had run away with Yulumali. However, on hearing the sound of the Appellant and Nazira, Yulumali who was in the inner room came outside. The evidence on record shows that Yulumali did not have a shirt on his person and he was only wearing a baniyan and pant at that time. On seeing Yulumali, and specially the fact that Yulumali was dressed only in a pant and baniyan, the Appellant lost all control as on seeing Yulumali, he was greatly provoked. Till then the Appellant was not aware that Yulumali was in the house. On seeing Yulumali the Appellant realized that his wife had run away with her former lover and that his wife and her former lover were living together. Thus, till then the Appellant was not provoked but on seeing that the former lover of his wife Nazira was in the house, the Appellant realized that his wife had eloped with her former lover and they are living together. After coming to know that his wife is staying with her former lover Yulumali, it is thereafter that he attacked Yulumali and then attacked his wife Nazira. Naturally, any normal man on seeing his wife in the company of her former lover and especially when he suddenly comes to know that his wife and her former lover are living together, it is a case of grave and sudden provocation. All the more a case of grave and sudden provocation when the Appellant saw the former lover of his wife coming out from the inner room in a state of undress that is in a baniyan. The Supreme Court of India in K. M. Nanavati Vs. State of Maharashtra, reported in AIR 1962 SC 605, may be usefully referred to :-

"Is there any standard of a reasonable man for the application of the doctrine of 'grave and sudden' provocation ? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values, etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilisation. It is neither possible nor desirable to lay down any standard with precision; it is for the Court to decide in each case, having regard to the relevant circumstances..........."

"The Indian law, relevant to the present enquiry may be stated thus: (1) The test of 'grave and sudden' provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken in to consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from the provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."

7. The explanation below the Exception 1 is very important. It enjoins that the question whether the provocation was grave and sudden enough to prevent the offence from being murder should not be treated as a question of law but one of fact and decided like any other question of fact. It follows, therefore, that each case must be considered according to its own facts and the Court must decide on the particular circumstances of that case whether the provocation was grave and sudden enough to permit an indulgent view of the crime committed by the accused.

8. There is no doubt in our mind that act of the Appellant was the result of a loss of his self control, which arose on account of the grave and sudden provocation that was caused to him. Whether provocation was caused to him by seeing the former lover of his wife coming out from the inner room in a state of undress. Whether the provocation was sufficiently grave cannot be measured by any particular yard stick. The circumstances in which a human being may be provoked into loosing control of himself are of infinite variety and it would be futile to lay down a universal standard for measuring the gravity of provocation in every case. The Court must consider the reaction not of the normal man in the abstract, but of the normal man whose impulses are conditioned by the same environment as the accused. In the background of the discomfort, which the Appellant was already feeling because his newly married wife had run away from the house and then finding her staying with her former lover and the former lover coming out from the inner room in a state of undress were sufficient for the temporary loss of self control on the part of the Appellant. In our opinion, therefore, the offence committed by the Appellant would be one punishable under Section 304 Part (I) of the IPC and not one punishable under Section 302 of the IPC.

9. In this view of the matter, in our opinion, the case of the Appellant would clearly be covered by exception 1 of Section 300 of the Indian Penal Code. In such case, the case would not fall under Section 300 of IPC but it would fall under Section 304 Part-I of Indian Penal Code. Looking to the nature of the weapon used and the injuries and the fact that the act was committed while the Appellant was in a state of grave and sudden provocation, the case would fall under Section 304 Part-I of Indian Penal Code.

10. In the result, the following order is passed:

ORDER

i. The conviction and sentence of the Appellant under Section 302 of the Indian Penal Code, is set aside, instead, the Appellant is convicted under Section 304 Part - I of the Indian Penal Code and he is sentenced to suffer R.I. for 10 years and to pay fine of Rs.1000/- ( Rs. One Thousand) in default S.I. for one month.

ii. The conviction and sentence of the Appellant under Section 452 of the Indian Penal Code and Section 37 read with Section 135 of the Bombay Police Act is maintained.

iii. All the substantive sentences shall run concurrently.

iv. Writ of the order be expedited.

v. Office to communicate this order to the Superintendent of prison where the Appellant is lodged and to Appellant - original accused.

vi. Appeal is partly allowed in the above terms.

Appeal partly allowed.