Rajasthan High Court - Jodhpur
Smt.Manju vs State on 6 March, 2019
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 375/2009
Smt. Manju W/o Satish, by caste Harijan, R/o Gadhhwada, Police
Station Rohat, District Pali.
(At present lodged in Central Jail, Jodhpur)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. L.D. Khatri
For Respondent(s) : Mr. J.P.S. Choudhary, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment Hon'ble Mr. Vinit Kumar Mathur, J.
06/03/2019 The present appeal under Section 374(2) Cr.P.C. has been preferred by the appellant Smt. Manju against the judgment dated 10/04/2009, passed by learned Additional Sessions Judge (Fast Track) No.2, Pali in Sessions Case No.3/2009(1/2009), whereby the accused-appellant has been convicted for the offence under Section 302 IPC and sentenced for life imprisonment with a fine of Rs. 5,000/-, in default of payment of fine further to undergo six months simple imprisonment.
Brief facts in the present case are that a report was lodged by Ganga Ram (PW.10) at the Police Station, Rohat to the effect that his son Satish, aged 33 years was married to Manju for last 12-13 years. Manju was having two sons and a daughter. After (2 of 11) [CRLA-375/2009] her marriage, she started harassing him, his wife and his son. Because of her quarrelsome attitude, the informant and his wife took up a separate residence. On 14/12/2008, he and his son Satish went for loading fertilizer in the truck from Gadhhwada and came back at around 11 p.m. Satish went to his house and asked Smt. Manju to serve him food. Since food was not ready, a quarrel ensued between Satish & Manju. The first informant was returning home after having food at his brother Amraram's house & he saw Satish and Manju fighting with each other. Both sons of Satish slept with him in his house and their daughter was not present there on the day of incident since she lives at Mohangarh with the parents of Manju. In the morning at around 7.30 a.m. when he came out, he saw Satish lying dead in his shed (Padwa). He called his brothers Ghevar Ram, Jetha Ram and Amraram who came on the spot and enquired from Manju as to what had happened upon which she replied that she had killed Satish by strangulating him and started crying thereafter.
On the aforesaid report, a formal FIR No.284/2008 was registered against the accused-appellant for the offence under Section 302 IPC at the Police Station Rohat, District Pali.
After completion of investigation, police filed a charge-sheet against the accused-appellant for the offence under Section 302 IPC.
Learned Trial Court framed, read over and explained the charge for the offence under Section 302 I.P.C to the accused appellant who denied the charge and sought trial.
During the trial, the prosecution examined as many as 17 witnesses and exhibited 21 documents in support of its case.
(3 of 11) [CRLA-375/2009] The accused-appellant was examined under Section 313 Cr.P.C. and she was confronted with the evidence adduced against her during the course of trial to which she denied and stated that she was innocent and had been falsely implicated in the case. There was no fight between her husband and herself. Their relations were cordial. Her father-in-law Ganga Ram was not on talking terms with her husband and for this reason, Ganga Ram was keeping enmity with her and her husband. Her husband committed suicide by hanging for this reason only. She further stated that at the time of incident, she was sleeping with her kids in the pakka constructed house. She came to know in the morning that her husband had committed suicide during the night. Ganga Ram and his brothers Jetha Ram and Amraram etc. hatched a conspiracy and changed the place of incident and created a false story thereby falsely implicating her.
Learned trial Court, after hearing the arguments from both the sides, taking into consideration and appreciating the documentary evidence and the statement of witnesses, convicted and sentenced the accused-appellant as above vide judgment dated 10/04/2009. Hence this appeal.
We have heard the arguments advanced by learned counsel for the accused-appellant and the learned Public Prosecutor and have carefully and threadbare perused the entire evidence available on record.
Learned counsel for the appellant submitted that the appellant has been falsely implicated for the offence alleged in the case and the prosecution has miserably failed to lead cogent evidence to establish that the appellant murdered her husband.
(4 of 11) [CRLA-375/2009] There are material contradictions and omissions in the testimony of prosecution witnesses.
He further urged that the testimony of PW.6 Ashish is not reliable as upon cross-examination he deviated significantly from his version of story narrated in his examination-in-chief. During his cross-examination, he stated that at the time of incident, he went and slept in the house of his grandfather. Thus, his presence on the spot at the time of incident is doubtful. The statement is contradictory and unworthy of reliance in the present case.
He further contended that in the testimony of witnesses examined before the trial Court, it has come on record that the deceased used to suspect the character of the appellant, therefore, often there were heated altercations between the husband and wife. He urged that on the fateful night, there was a quarrel between Manju and Satish and because of grave and sudden provocation, the appellant lost her control and in the heat of moment, the incident took place resulting into the death of Satish. The appellant also sustained injuries in the incident as established by the injury report (Ex.P.14).
Learned counsel relied upon the judgment of Hon'ble Supreme Court in the case of Devendra Nath Srivastava vs. State of Uttar Pradesh, 2017 Cr.L.R. (SC) 349 to contend that the appellant acted in a fit of anger because false aspersion was cast on her character and the incident occurred after quarrel between the husband and wife and, therefore, conviction under Section 304 part I IPC would be proper instead of Section 302 IPC.
(5 of 11) [CRLA-375/2009] On the strength of these arguments, he prays that the impugned judgment dated 10/04/2009 is required to be set aside and conviction of the appellant is required to be converted into Section 304 Part I IPC from Section 302 IPC.
Per contra, learned public prosecutor contended that only the husband and wife were present in the house. The deceased asked for food but the appellant bluntly refused and thereafter engaged into a fight with her husband; she also strangulated him, which fact has been proved beyond all reasonable doubt. The testimony of prosecution witnesses clearly establishes that the appellant murdered her husband. The version of the eye witnesses is thoroughly corroborated by the medical evidence in the shape of statement of PW.11 Dr. N.K. Bhootra who stated that cause of death was asphyxia due to strangulation. Postmortem report (Ex.P.10) also shows the cause of death to be asphyxia due to strangulation. The appellant was arrested immediately on 16/12/2008 vide arrest memo (Ex.P.5). She confessed before PW.10 Ganga Ram in the presence of Ghevar Ram, Jetha Ram and Amraram that after a fight, she had strangulated her husband the previous night. In these circumstances, he submits that the judgment dated 10/04/2009 does not warrant any interference by this Court.
We have considered the submissions advanced by learned counsel for the parties and perused the material available on record.
PW.10 Ganga Ram being father of deceased stated that he and his son Satish came back at around 11 in the night. Satish went to his house and asked his wife to serve food. However, she (6 of 11) [CRLA-375/2009] refused to serve the food as she had not cooked any. On this issue, a quarrel ensued between the husband and wife. The witness had gone to take food at the house of his brother Amra Ram. On returning, he saw Satish and Manju fighting with each other. Two sons of Satish came and slept next to him on his bed. Next day, he woke up in the morning at around 7 a.m. and after attending nature's call, he went to his brother Amra Ram's house for having tea. From there, he went to the station and on coming back, he saw Manju was sitting outside, the door of the house was open & Satish was lying dead in the shed (Padwa) and the bed was lying scattered. He called his brother Ghevar Ram, Jetha Ram and Amraram and in their presence when he asked Manju about the death of Satish, she confessed that she had strangled her husband to death last night while he was sleeping. He further stated that Satish and Manju routinely faught with each other. They used to engage in skirmishes every other day for the reason that Satish used to tell her that she should not leave the house without informing him. During the cross-examination of this witness, he also stated that Manju was not a lady of virtuous character. She used to visit the homes of Charans frequently and regularly.
PW.2 Amraram stated that Satish and Manju used to fight and the relationship between them was not very cordial.
PW.3 Ghevar Ram stated that the matrimonial relationship between Manju and Satish was not on good terms and they often indulged into heated altercations. The reasons for the same were not known to him.
(7 of 11) [CRLA-375/2009] PW.4 Jetha Ram stated that he went to the house of Satish on being called by his brother Ganga Ram and Manju confessed tin their presence that after a fight between her and Satish, she had strangled him to death.
PW.6 Ashish is a child witness. He stated that his mother fought with his father on the issue of giving food and strangled him.
During the cross-examination, he stated that he did not see his mother strangling his father with a rope. On the fateful night, he slept in the house of his grandfather on being asked to go there by his mother.
PW.9 Chetan stated that he heard the people of their Mohalla saying that Satish had been strangled to death by his wife Manju. He also came to know that the present appellant Manju was not a lady of virtuous character.
PW.11 Dr. N.K. Bhootra while working as a Medical Jurist at Community Health Centre, Rohat and as a Member of Medical Board conducted autopsy upon the dead body of the deceased and described the dimension and the location of injuries suffered by the deceased. He further stated that cause of death was asphyxia due to strangulation.
P.W. 16 - Ganpat Singh, S.I. Police Station Rohat was the Police Officer, who conducted the investigation of the matter and stated that he prepared site plan, recorded statements of the witnesses, effected recovery as prescribed under the law and submitted the charge sheet before the competent criminal Court.
(8 of 11) [CRLA-375/2009] A close reading and examination of the witnesses shows that the relationship between accused Manju and deceased Satish was not cordial. It has come on record that they used to often fight with each other. Their children would sometimes reside with them or else, they would go and live with their grandfather who was staying next door. On the fateful night the deceased Satish came back from work and asked the appellant-wife for food but she refused as she had not cooked any. For this reason, a physical quarrel ensued between spouses. It appears that the appellant gained the upper hand in the mutual fight and managed to strangulate her husband. She herself received injuries in the incident which fact is established by her injury report Ex.P.14. The admitted facts give rise to an inference that there was no premeditation and the quarrel started at the spur of moment, no weapons were used and it appears that the appellant somehow, managed to gain an upper hand in the battle and strangulated her husband. Therefore, in our view, the present case falls in the Exception 4 of Section 300 IPC. The fact of usual acrimonious relationship between the husband and wife is reported in the testimony of almost all the prosecution witnesses. It is also admitted that there was unwarranted mudslinging on the character of the appellant and thus, her anger can be understood. The testimony of the child witness PW.6 Ashish is not convincing and consistent and, therefore, it will not be safe to rely upon it in the facts and circumstances of the present case. Nevertheless, it has come in the statement that fight and quarrel between his mother and father was a usual course of events.
Having assessed and evaluated the evidence which has come on record, we are convinced that it was none other than the (9 of 11) [CRLA-375/2009] appellant who is responsible for the homicidal death of her husband Satish. On consideration of the entire evidence on record, it is clear that the incident in question occurred at the spur of the moment. The testimony of PW.10 Ganga Ram, PW.2 Amraram, PW.3 Ghevar Ram, PW.4 Jetha Ram and PW.6 Ashish clearly brings out the fact of frequent strike between the husband and wife almost everyday including on the date of incident.
The Hon'ble Supreme Court in the case of Devendra Nath Srivastava (supra) has observed as under :-
"18. As to whether the act on the part of the appellant constitutes the offence punishable under Section 302 IPC or Section 304 Part I IPC, we are of the view that the incident has occurred after quarrel between the appellant and the deceased which is not a planned act. It is also established that the appellant was a drunkard. In our opinion, in the facts and circumstances of the case, the view taken by the High Court, that the appellant has committed offence punishable under Section 304 Part I IPC, requires no interference.
19. In State of Andhra Pradesh v. Rauavarapu Punnayya & another [(1977) 1 Supreme Court Reports 601 at 606][1976] 4 SCC 382, this Court, explaining the scheme of Penal Code relating to culpable homicide, has laid down the law as under:-
"In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. Every "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, (10 of 11) [CRLA-375/2009] also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304."
20. In the same case, i.e. State of Andhra Pradesh v. Rauavarapu Punnayya & another (supra), this Court has further observed at page 608 as under: -
"..........whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code."
21. In view of the above discussion of facts and law, we are in agreement with the conviction and sentence recorded against the appellant by the High Court. Therefore, the appeals are dismissed."
There was no prior plan or any premeditation on the part of the accused. The incident occurred on a very trivial issue of serving food to the husband and thus the accused can not be said (11 of 11) [CRLA-375/2009] to have taken any undue advantage or to have acted in a cruel manner. Therefore, we find that the accused had no intention to kill her husband and the offence appears to have been committed at the spur of the moment and in the heat of passion. The appellant did not use any weapon and while the physical battle was going on between her and Satish, she appears to have gained the upper hand and put a choke hold on the neck of her husband which proved fatal.
Considering the above aspects, we have no hesitation to hold that the conviction of the present appellant cannot be sustained under section 302 of the IPC, and instead she deserves to be convicted for the offence under section 304 part-I of the IPC.
For the foregoing reasons, the judgment and order of conviction and sentence dated 10/04/2009 passed by learned trial Court is altered and modified from section 302 of the Indian Penal Code to that under section 304 part I of the Indian Penal Code and the appellant is sentenced to undergo rigorous imprisonment for 10 (ten) years instead of life imprisonment while maintaining the rest of the part of judgment with respect to the fine and its non- payment.
The appeal is partly allowed in these terms.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J 1-SanjayS/-
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