Bismillaben Kasam Karim Chauhan vs State Of ... on 11 August, 2017

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Gujarat High Court

Bismillaben Kasam Karim Chauhan vs State Of ... on 11 August, 2017

Author: Abhilasha Kumari

Bench: Abhilasha Kumari, A.J. Shastri

                   R/CR.A/58/2013                                            JUDGMENT




                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                CRIMINAL APPEAL NO. 58 of 2013


         FOR APPROVAL AND SIGNATURE:


         HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
         and
         HONOURABLE MR.JUSTICE A.J. SHASTRI
         ================================================================
         1     Whether Reporters of Local Papers may be allowed to
               see the judgment ?
         2     To be referred to the Reporter or not ?
         3     Whether their Lordships wish to see the fair copy of
               the judgment ?
         4     Whether this case involves a substantial question of
               law as to the interpretation of the Constitution of India
               or any order made thereunder ?
         ================================================================
                    BISMILLABEN KASAM KARIM CHAUHAN....Appellant(s)
                                       Versus
                      STATE OF GUJARAT....Opponent(s)/Respondent(s)
         ================================================================
         Appearance:
         HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
         MR PV PATADIYA, ADVOCATE for the Appellant(s) No. 1
         MR JK SHAH, ADDL.PUBLIC PROSECUTOR for Opponent/Respondent No.1
         ================================================================
             CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
                    and
                    HONOURABLE MR.JUSTICE A.J. SHASTRI

                                       Date : 11/08/2017
                                       ORAL JUDGMENT

(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)

1. The present appeal has been preferred under Section374 of the Code of Criminal Procedure, 1973 Page 1 of 80 HC-NIC Page 1 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT ("the Code", for short) against the judgment and order dated 09.11.2012, passed by the learned Sessions Judge, Bharuch, in Sessions Case No.41/2012, whereby the appellantoriginal accused has been convicted of the offence punishable under Section302 of the Indian Penal Code, 1860 ("IPC", for short) and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/. In default of the payment of fine, the appellant is further directed to suffer simple imprisonment for thirty days. The appellant had also been charged for the offence punishable under Section 135 of the Gujarat Police Act, 1951, but has been acquitted of the said offence.

2. The appellant is the wife of deceased Kasam Karim Chauhan. It is the case of the prosecution, based upon the complaint dated 17.01.2012, filed by Karimbhai Umarbhai Chauhan, the father of the deceased, (Exhibit9) that on the night intervening 16.01.2012 and 17.01.2012, at about 4.00 a.m. when the appellant was sleeping with her husband Kasam Karim Chauhan (hereinafter referred to as "the deceased"), she came out of her house and started shouting that she had killed her husband. On hearing the shouting, the Page 2 of 80 HC-NIC Page 2 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT complainant and his brother Jitubhai, ran towards the house of the deceased and saw that he was bleeding heavily from a head injury. When the complainant reached the house he saw that the deceased had died. The complainant went to call a doctor. When he returned with the doctor, the appellant told the doctor that if he treats the deceased she would involve him in a case and file a complaint against him, thereby stopping the doctor from treating the deceased. As per the case of the prosecution, the cause for the quarrel between the appellant and the deceased was that the appellant used to take their two goats to graze in the field alone and come back late at night. The deceased told the appellant that they should sell the goats, as the deceased was suspicious regarding the character of the appellant. Frequent quarrels took place between the appellant and the deceased on this issue, according to the complainant. A quarrel took place on the night of the incident as well and the appellant hit the deceased with a "Karab no lokhandno Dadho" (handle of an iron implement used for digging) (hereinafter referred to as "the weapon of offence") and gave a fatal blow, causing the death Page 3 of 80 HC-NIC Page 3 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT of the deceased.

3. On the basis of this complaint an FIR, being C.R.No.I03/2012, was registered under Section302 of the IPC and Section135 of the Gujarat Police Act. A chargesheet against the appellant was filed in the Court of learned Judicial Magistrate, First Class. The case being Sessions triable, the learned Magistrate committed it under Section209 of the Code to the Sessions Court, where it was registered as Sessions Case No.41/2012.

4. Thereafter, the charge at Exhibit5 was framed against the accused under Section302 of the IPC and Section135 of the Gujarat Police Act. The plea of the appellant was recorded in which she stated that she has not committed any offence.

5. In support of its case, the prosecution examined sixteen witnesses and adduced documentary evidence. In her statement under Section313 of the Code, the appellant stated that she has not killed the deceased but he could have been hurt during a scuffle. She has stated that the deceased was sleeping on her daughter and she has not committed any offence. A false case Page 4 of 80 HC-NIC Page 4 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT has been registered against her and she is innocent.

6. After framing points for determination, the Trial Court, after discussing the oral and documentary evidence on record, returned findings to the effect that the charge under Section302 of the IPC against the appellant stood proved. The basis for that finding appears to be the deposition of the daughter of the appellant and the deceased, namely Karishma, who is examined as PW9 and is stated to be an eyewitness to the incident. The Trial Court has also relied on the extrajudicial confession stated to have been made by the appellant, as deposed by several prosecution witnesses. Hence, the Trial Court convicted and sentenced the appellant, as above.

7. Before dealing with the submissions advanced by Mr.P.V.Patadiya learned advocate for the appellant and Mr.J.K.Shah, learned Additional Public Prosecutor for the respondentState, it would be illustrative to deal with the salient features of the oral and documentary evidence on record.

8. Shri Karimbhai Umarbhai Chauhan, the father of the deceased, who is also the complainant, has been Page 5 of 80 HC-NIC Page 5 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT examined as PW1 at Exhibit7. It emerges from his deposition that the appellant is the second wife of the deceased. It appears that the deceased had gone away with the appellant and married her during the lifetime of his first wife, who has since passed away. Two sons and a daughter were born from the wedlock of the appellant and the deceased, (PW9 Karishma, being one of them).

9. Insofar as the testimony of this witness is concerned, he states that on the day of the incident there was a quarrel between the appellant and the deceased. The appellant is stated to have told this witness that she has killed the deceased and it was only then that he came to know of this incident. He further states that the appellant, after killing the deceased, locked the house and told everyone that she had killed her husband. Thereafter, in the morning, this witness went to the house of the deceased when the Police arrived. He saw the deceased lying on the bed with an injury on his head. He could not see from the back with what instrument the deceased had been hit, but could see the injury.





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HC-NIC                               Page 6 of 80     Created On Mon Aug 21 04:06:27 IST 2017
                  R/CR.A/58/2013                                          JUDGMENT

10. According to this witness, the appellant used to go to graze the goats and the deceased was suspicious regarding her character and wanted to sell the goats. According to him, this was the cause of the quarrel between the two.

11. In crossexamination, this witness states that his house is at a distance of twenty to twentyfive feet from the house of the appellant and deceased but they never used to visit each other. He does not know what the deceased used to do at home and in what manner the deceased used to live. This witness further states that Karishma, the daughter of the deceased, was studying earlier but now she does not study. He denies the suggestion that on the night of the incident the other sons of the deceased were in the house. He himself ventures that they were at his house and states that when the incident took place the deceased, the appellant, their daughter Karishma and their other son Samir, were at home. This witness denies the suggestion that the deceased was in the habit of consuming liquor but states that he does not Page 7 of 80 HC-NIC Page 7 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT know whether he used to do so, or not, as he never visited his house. This witness specifically denies the suggestion that a day before the incident, the appellant came to his house with a complaint that the deceased used to frequently molest their daughter, Karishma. He denies the suggestion that the appellant did not tell him that she had killed the deceased and states that he had written this in the complaint as well. He denies the suggestion that he has not stated in the complaint that the appellant had locked the house after the incident or that he had gone to the house of the deceased in the morning after the Police arrived. He denies the suggestion that he has not stated in the complaint that the deceased nursed a suspicion regarding the character of the appellant. He further denies the suggestion that the deceased did not earn anything and the appellant used to run the house by keeping goats.

12. PW2 is Yunus Mohammad Patel, who has deposed at Exhibit10. He is a Panch witness of the Inquest Panchnama at Exhibit11. He has described the condition of the body of the deceased and stated the Page 8 of 80 HC-NIC Page 8 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT there was an injury on the left side of the head, above the eye, as well as five to six other injuries. Besides this, there were no other injuries on the body. He has stated that the other Panch witness was also present and has signed the Panchnama in his presence. He has identified his signature on the Panchnama. In crossexamination, this witness has denied the suggestion that he was made to sign the Panchnama at Matar village or that he has signed on a Panchnama prepared by the Police. He states that the deceased belonged to his village and he recognizes him.

13. PW3 is Habibbhai Rasulbhai Chauhan, who has deposed at Exhibit12. He is a Panch witness of the Panchnama of the Scene of Offence, at Exhibit13. This witness has also supported the said Panchnama and described the condition of the bed on which the body of the deceased was lying. He states that the quilt was bloodstained and there was blood on the walls and floor, as well. He has identified his signature on the Panchnama and stated that the other Panch witness has signed in his presence. In crossexamination, this Page 9 of 80 HC-NIC Page 9 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT witness denies the suggestion that he has signed on a previously prepared Panchnama. He states that he has been staying in village Matar for the past five years and recognizes the deceased.

14. PW4, Iqbal Yakub, is a Panch witness of the Panchnama of the recovery of the weapon of offence. His deposition is at Exhibit14. He does not support the version of the prosecution and has been declared hostile. Similarly, PW5 Maganbhai Shanabhai Solanki, who testifies at Exhibit16 is a Panch witness of the Panchnama of the seizure of the clothes of the deceased. This witness has also turned hostile. The other Panch witness of the Panchnama of the seizure of the clothes is PW6 Valibhai Musabhai Patel, whose deposition is at Exhibit18. This witness has also not supported the case of the prosecution.

15. The next prosecution witness is PW7, Sikandar Umar Chauhan, who is the brother of the complainant and the uncle of the deceased. His deposition is at Exhibit19. He states that the incident took place at night when he was sleeping in his house with his Page 10 of 80 HC-NIC Page 10 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT family. They heard sounds due to which they woke up and ran to the house of the deceased. The appellant would not speak or open the door, therefore, they knocked on the door, after which the appellant opened it. They saw that the deceased was bleeding profusely. This witness states that the appellant told him that she had killed the deceased with the weapon of offence. However, she did not reveal the reason for killing him.

16. In crossexamination, this witness states that he does not know what had occurred in the house of the deceased and he cannot say anything about it. He states that when he went to the house, the deceased was still alive and was gasping. He did not ask the deceased how he sustained the injuries. This witness admits, in crossexamination, that before the Police took his statement, his brother had read over the complaint to him, due to which this witness got the impression that it was the appellant, who had killed the deceased.

17. This witness denies the suggestion that in his statement before the Police he has stated that about Page 11 of 80 HC-NIC Page 11 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT three months ago his brother, the complainant, had informed him that the deceased used to molest his daughter Karishma by raising her clothes when she was sleeping on the bed and used to sleep with her.

18. The prosecution has examined the aunt of the deceased and wife of PW7 as PW8 at Exhibit20. She states that the incident took place at 2:30 to 2:45 a.m. She and her husband awoke when they heard sounds. First her husband went to the house of the deceased and she followed. They saw that the deceased lying there in a bleeding condition. This witness states that the appellant said she had killed the deceased.

19. In crossexamination, this witness states that when she reached the spot, the deceased was still breathing, but she did not ask him directly or through signs how he had got injured. She admits that she does not know how the deceased sustained injuries. This witness denies the suggestion that the accused had earlier informed her fatherinlaw, the complainant, that the deceased used to lift the lungi of his daughter, Karishma, when she was asleep and molest her. She has further denied the suggestion that when Page 12 of 80 HC-NIC Page 12 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT she had gone to the house of the deceased, the appellant had told her that the deceased had covered the mouth of his daughter and was trying to molest her. She has denied that in spite of knowing the truth that the deceased used to molest his daughter, Karishma, she has deposed falsely.

20. The star witness of the prosecution is Karishma, daughter of the accused and the deceased, who has deposed as PW9 at Exhibit21. She was aged about sixteen years at the time when she testified before the Court on 01.10.2012. She has stated that the incident took place on 17.01.2012 at about 3:00 a.m. The appellant is her mother and the deceased is her father. She was staying with her parents and younger brother Samir who were present in the house. According to this witness, at about 3:00 a.m. when they were sleeping, the appellant hit the deceased with the weapon of offence and kept on hitting him. Though this witness told the accused not to hit the deceased, she continued to do so. According to this witness, thereafter, the appellant went out and told everyone that she had killed her husband. This witness has identified the weapon of offence as being the weapon Page 13 of 80 HC-NIC Page 13 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT used by the appellant to hit the deceased.

21. In crossexamination, this witness has stated that on the day of the incident, the appellant had gone to sleep at 10:00 p.m. She, her father and her younger brother Samir, were sitting and watching television. Thereafter, they switched off the light and went to sleep. Karishma states that they were all sleeping in the same room. She was sleeping with the appellant and her younger brother was sleeping with the deceased. She states that her father had told the appellant not to go to collect fodder and quarrels used to take place between them. This witness denies the suggestion that after the deceased went to sleep after watching television, he got up at about 2:00 to 3:00 a.m. She states that she does not know whether the appellant was awake at that time, or not. She denies that the deceased got up at night, covered her mouth and pressed her breasts. She further denies that the deceased then took her to another room. She also denies that she bit her father on his hand or that, upon her shouting, the appellant entered the room. This witness further denies the suggestion that upon Page 14 of 80 HC-NIC Page 14 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT the arrival of the appellant, the deceased hid under a bed and she conveyed this fact to the appellant by making signs. Karishma denies the suggestion that the deceased used to molest her, time and again, and used to sleep on her.

22. However, in crossexamination, this witness has admitted that the appellant had told the complainant that the deceased used to molest her, but the deceased had denied this by saying that he would not do such a thing to his own daughter. This witness has further denied that when she used to go to school, the deceased used to come behind her. She denies that on the day of the incident, there was a scuffle between the accused and the deceased, but states that there was a quarrel. She also denies the suggestion that the deceased pushed the appellant, as a result of which the appellant banged her forehead against the wall. She states that she awoke when her father was alive. She states that she does not know what happened between the accused and the deceased prior to this. This witness denies that the deceased never used to give money to the appellant, who had to make two ends Page 15 of 80 HC-NIC Page 15 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT meet by grazing goats. This witness states that the deceased awoke one hour after she awoke. She admits that the appellant did not hit the deceased after she awoke. She states that the Police have not asked her anything when they came to her house except who had killed the deceased.

23. This witness denies the suggestion that she has dictated in her statement before the Police, that when she was sleeping at night, the deceased covered her mouth and she started screaming, as a result of which the appellant awoke, came there, and admonished the deceased as to what he was doing. She admits that she has stated in her Police statement that the deceased used to nurse a false suspicion regarding the appellant and frequently quarrel with her. She denies the suggestion that she has stated in her Police statement that when she was studying in Standard7, the deceased had slept in the same bed as her, but she did not know what he had done. She further denies that she has stated before Police that the deceased lifted her lungi and did something bad which she did not know as she was asleep and she does not know whether the Page 16 of 80 HC-NIC Page 16 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT appellant had seen it or not.

24. This witness has admitted that the accused had admonished the deceased in this regard earlier as well. She states that it is not true that her mother, the appellant, treated her properly. Karishma further admits that at the time of giving the deposition, she was living with her grandfather, PW1, who had come to the Court with her on that day. She denies the suggestion that she has testified as per the directions given by PW1. She further denies that the appellant and the deceased had a quarrel due to her. She states that she was attached to her father and is saddened by his death. She denies the suggestion that her father died in a scuffle between the accused and the deceased and she has falsely implicated the accused.

25. PW10 is Dr.Ashokkumar Rajbaliram Prabhat who has performed the postmortem on the body of the deceased. He has deposed at Exhibit22 and described the injuries found on the body of the deceased. He states that a blood sample was also taken from the body. The injuries sustained by the deceased are described in Page 17 of 80 HC-NIC Page 17 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT Column Nos.17 and 18 of the Postmortem Report, which are as below :

"(1) One red CLW with irregular margin of size 4cm x 1cm x 2cm (Skin deep) over Left Eyebrow.

(2) One red CLW of size 3cm x 1cm x 2 cm (Skin deep) over right frontotemporal region with fracture seen visibly.

(3) One red CLW of size 3cm x 1 cm x 2cm deep Rt. Temporal bone with bleeding. (4) One red CLW of size 4cm x 1cm x 2cm irregular margin over Lt. Frontal region of skull with bleeding.

(5) One red CLW of size 4cm x 1cm x 2cm deep over Occipital region with bleeding. (6) One red CLW of size 3cm x 1cm x 2cm skin deep over partial region of skull with bleeding.

Compound fracture of skull frontal bone, partial bone, occipital bone."

26. As per the Postmortem Report, the cause of death is stated to be "death due to cardio respiratory failure due to shock due to head and brain injury".

27. The TalaticumMantri and Incharge Circe Inspector, who prepared the map of the place of offence has been examined as PW11 at Exhibit25. He Page 18 of 80 HC-NIC Page 18 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT is a formal witness and nothing much turns upon his deposition.

28. The Homeopathic doctor, Dr.Durgesh Avadheshkumar, who was called by PW7 to treat the deceased has been examined as PW12 at Exhibit28. He states that he went with PW7 to the house of the deceased where several people had gathered. A lady was saying that if anyone treats the deceased, she would file a case against him. This witness, therefore, returned. He has identified the lady as being the appellant. In cross examination, this witness states that he is doing private practice and is a Homeopathic doctor. He is, therefore, not authorized to give Allopathic treatment. When PW7 came to call him, the incident was not disclosed to him. He further states that in a medicolegal case he is not competent to treat the patient, as in such a case the person requires Allopathic treatment. This witness further states that he does not know the reason why he was stopped from treating the deceased. He states that he does not know whether he was stopped from treating the deceased because he was being taken to Amod for further Page 19 of 80 HC-NIC Page 19 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT treatment. He states that he does not know that the Jeep to take the patient to Amod was standing there when he arrived.

29. PW13, Ahmedbhai Dadubava, who appears to be a person living nearby the house of the deceased has been examined at Exhibit29. He states that the incident took place at about 4:00 a.m. when he was at home. He awoke upon hearing shouts. He states that the house in which the incident took place was locked from outside and "Nafisa" was shouting that she had murdered her husband. He states that "Nafisa" had come to his house, woken him and told him so. He has identified "Nafisa" as being the appellant who was present in the Court and stated that it was she who had told him that she had killed her husband. In crossexamination, this witness states that he belongs to Tavdi village. The house in which he lives belongs to his inlaws and is situated in front of the house of the appellant "Nafisa". He states that the Police have not taken his statement, though he states that the Police asked him where his house was. He admits, in crossexamination, that he does not know how the incident took place. He further admits that PW1 has Page 20 of 80 HC-NIC Page 20 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT accompanied him to the Court. This witness denies the suggestion that he has deposed, as tutored by PW1. He further denies that he has not stated before the Police that "Nafisa" was shouting that she has killed her husband and she had come to his house to tell him this. He has identified the appellant and denied that he has given false testimony.

30. PW14, Abdulbhai Musabhai Patel, was serving as the officer Incharge of the Police Station when the incident took place. He has noted the incident in the Police Station Diary.

31. The first Investigating Officer is PW15, Chandubhai Manubhai Dodia. A substantial amount of the investigation has been done by this officer. He states that on 17.01.2012, he was serving as incharge Police SubInspector with Jambusar and Amod Police Stations. The Police Station Officer at Amod Police Station telephonically informed him regarding the incident, when he was at Jambusar. He reached the scene of offence and started investigation. This witness describes, in detail, that the drawing up of the Inquest Panchnama in the presence of Panch witnesses, Page 21 of 80 HC-NIC Page 21 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT taking of statements of concerned persons and arrest of the appellant. He states that the clothes worn by the deceased were seized and sent for examination. In the extensive crossexamination to which this Police Officer was subjected, he has steadfastly maintained that on 17.01.2012, reached the place of incident between 10:00 to 10:30 a.m. and was there the entire day. The complaint was registered and the body was sent for postmortem. He states that he took the statements of most of the witnesses on 17.01.2012 itself.

32. This witness discloses, in crossexamination, that there were abrasions on the wrist and feet of the deceased though he cannot say whether these abrasions were as a result of a scuffle, or not. This witness states that he took blood samples from the scene of offence. The Forensic Science van arrived and took blood samples of their own. The appellant was present in the house when he arrived. This witness denies the suggestion that the appellant was arrested immediately. He states that it is only after the investigation was over that the appellant was Page 22 of 80 HC-NIC Page 22 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT arrested.

33. This witness categorically maintains in cross examination that it is a fact that it emerged from his investigation that the deceased used to lift the lungi of his daughter and molest her, time and again. He states that it is true that he had not got Karishma, daughter of the deceased, medically examined. This witness reiterates that it emerges from his investigation that the deceased used to molest his daughter and it is due to this fact that the incident took place. He states that it has also come out in investigation that the deceased used to quarrel with the appellant when she returned home late after grazing the goats, and had suspicions regarding her character, therefore, the appellant had done away with the deceased.

34. The Investigating Officer has further stated in crossexamination that on 17.01.2012, he took the additional statement of the complainant, in which the complainant stated that about three months before the incident, the appellant had come to his house and told him that his son, the deceased slept in the same bed Page 23 of 80 HC-NIC Page 23 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT as his daughter Karishma when she was watching television and when Karishma had gone to sleep, the deceased lifted her lungi and tried to molest her. She had seen this happening two to three times. This Police witness further maintains in crossexamination that PW7, Sikandar Umar Chauhan, uncle of the deceased has stated in his statement before him that two to three months before the incident, the appellant had gone to his brother, the complainant, and told him that your son (deceased) sleeps in the same bed as his daughter, Karishma and when she is asleep he lifts her lungi and molests her. That his brother, the complainant, also told his other brother, Jitsing, regarding this, after calling them to his house. The Investigating Officer further maintains that the complainant has stated in his Police statement that they had no relations with the deceased and they never visited his house. This witness further states that the complainant had stated before him that on the day of the incident, the appellant had told him that when she was sleeping at night with her daughter, her husband, the deceased, covered the mouth of her daughter when she awoke. The Police witness further Page 24 of 80 HC-NIC Page 24 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT states that the complainant did not write in his Police statement that the accused was not opening the door, but opened it after he banged on it.

35. Regarding PW8, Samimbanu, wife of PW7, this witness has stated that she stated before him that on inquiry, she was informed that at about 4:00 a.m. on the night of the incident, when the appellant and Karishma were sleeping, the deceased got up and covered Karishma's mouth. Upon seeing this, the appellant awoke. This witness has further stated that even before this, the appellant had told her father inlaw, the complainant, that when she was sleeping with her daughter Karishma, his son tried to molest Karishma by lifting her lungi.

36. Regarding the statement of Karishma taken by this witness, he categorically states, during cross examination, that Karishma has stated before him that when she was sleeping at night, the deceased covered her mouth. She shouted and the appellant awoke, came there and admonished the deceased as to what he was doing. He further states that Karishma has stated in the statement recorded by him that her father, the Page 25 of 80 HC-NIC Page 25 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT deceased, nursed false suspicions regarding the character of the appellant and there were frequent quarrels between them. This witness states that Karishma has stated in her statement recorded by him that when she was studying in the 7th Standard, the deceased slept in the bed with her, but she was not aware of what he did. She has further stated that she does not know whether her father lifted his lungi and did something bad with her, as she was asleep at that time. She is not aware whether her mother saw the incident, or not. This Police witness has categorically stated that Karishma has not stated in her statement recorded by him that her mother, the appellant kept on hitting her father, the deceased, in spite of her telling her not to do so.

37. Regarding the statement of PW13, this Police witness states that this witness has not stated before him that "Nafisa" was shouting that she has killed her husband and that she had come to his house, woken him and told him this.

38. The second Investigating Officer, PW16, Ravirajsinh Ashoksinh Jadeja, has deposed at Exhibit Page 26 of 80 HC-NIC Page 26 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT

37. As this officer has taken over the charge at the fag end of the investigation after most of it had already been conducted by PW15, nothing much turns upon his deposition.

39. In her statement recorded under Section313 of the Code, the appellant has denied the incriminating circumstances against her. In answer to the question whether she wants to say anything in particular, the appellant has stated that "I have not killed the deceased, but he got injured in a scuffle. The deceased was sleeping on top of my daughter. I have not committed any offence. A false case has been foisted upon me. I am innocent."

40. After appreciating the evidence as above, the Trial Court has arrived at the conclusion that the charge under Section302 of the IPC against the accused has been proved beyond reasonable doubt. The reasons for this conclusion, as recorded in the judgment under challenge, shall be discussed hereinafter.

41. In the background of the above evidence, Mr.P.V.Patadiya, learned advocate for the appellant Page 27 of 80 HC-NIC Page 27 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT has submitted that the true genesis of the incident has been suppressed. It has come in evidence that right from the beginning, the deceased was abusing and molesting his daughter Karishma, which was seen by the appellant on several occasions. On the night of the incident as well, the deceased was molesting his daughter. When the appellant tried to stop him, a scuffle took place and the deceased sustained injuries which turned out to be fatal. He has submitted that though all the witnesses denied the truth in their depositions, however, they have stated the truth before the Investigating Officer, at the first instance. Learned advocate for the appellant has further stated that the statements of the witnesses recorded by the Investigating Officer contain the true reason and cause of the incident. The fact that the deceased used to molest his daughter has come out in the investigation of the Investigating Officer, who is a neutral person. He has also pointed out numerous contradictions and improvements between the statements of the prosecution witnesses made before him and the testimonies given by them in the Court, which shows that these prosecution witnesses are not reliable.




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HC-NIC                              Page 28 of 80     Created On Mon Aug 21 04:06:27 IST 2017
                  R/CR.A/58/2013                                          JUDGMENT

41.1 It is further submitted that there are several improvements and contradictions in the testimony of PW9, Karishma, who was confronted with the said contradictions. Karishma used to reside with the complainant. Looking to her young age, it is obvious that she was tutored by the complainant to change her initial version, in order to implicate the appellant. 41.2 That there are several contradictions in the versions of the prosecution witnesses, who have tried to cover up the truth by introducing a story regarding the grazing of goats by the appellant. The testimonies of the prosecution witnesses are full of contradictions on various aspects, and do not inspire confidence.

41.3 That the aspect of the extrajudicial confession allegedly made by the appellant has been introduced in a tutored and stereotyped manner by all the prosecution witnesses, in order to implicate her. Even regarding this aspect, there are contradictions interse between the testimonies of the witnesses. Learned advocate for the appellant submits that the appellant, is in fact, a Page 29 of 80 HC-NIC Page 29 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT victim of society. She had complained to her fatherin law, the complainant and her uncleinlaw, regarding the molestation of her daughter by the deceased not once, but several times. The act of the deceased was such that no mother would tolerate it. When the deceased saw her husband molesting their own daughter, a scuffle took place, in which the incident happened.

The appellant had no intention of causing the death of the deceased. The act was not premeditated, therefore, the conviction against her may be converted to one under Section304 PartI or II, and her sentence may be modified and reduced accordingly. The appellant may be given the benefit of the relevant exception under Section300 of the IPC.

41.4 In support of the above submissions, learned advocate for the appellant has placed reliance upon the following judgments :

(1) Mangesh Vs. State of Maharshtra, reported in (2011) 2 SCC 123.

(2) Saroj @ Suraj Panchal Vs. State of West Bengal, reported in (2014) 4 SCC 802. (3) Kala @ Chandrakala Vs. State, reported in (2016) 9 SCC 337.

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42. Mr.J.K.Shah, learned Additional Public Prosecutor has submitted that it is evident from the material on record that the appellant has made an extrajudicial confession that she has killed the deceased which aspect has emerged from the evidence of several prosecution witnesses. There is evidence that frequent quarrels took place between the deceased and the appellant regarding her coming home late after grazing the goats due to which the deceased used to suspect her character.

42.1 That almost all the prosecution witnesses have denied that they have stated before the Police that the appellant had complained to the complainant that her husband used to molest their daughter time and again and on the night of the incident as well, he had molested her. It is submitted that looking to the material on record, this Court may maintain the judgment and order passed by the Trail Court.

43. In the background of the above summary of evidence and rival submissions, we may now examine the judgment under challenge. As can be seen from the Page 31 of 80 HC-NIC Page 31 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT evidence on record, some of the Panch witnesses have become hostile. The related witnesses have all deposed in favour of the prosecution. Certain factors have weighed with the Trial Court in arriving at its conclusion, which can be briefly summarized as below :

(i) The Trial Court has dwelt at length on the deposition of PW9, Karishma. According to the Trial Court Karishma, being an eyewitness and a daughter, would not give false testimony against her mother, the appellant. The Trial Court has found that the testimony of Karishma is trustworthy and there is no reason to discard it.

It has further found that in her cross examination at the behest of the appellant, nothing helpful to the appellant has emerged. The Trial Court has held that normally, no child would give testimony against her parents and the very fact that Karishma has deposed against the appellant proves the guilt of the appellant.

(ii) The Trial Court has further found that as per the evidence of Dr.Ashokkumar Prabhat, PW10, the injuries sustained by the deceased, as described in Column Nos.17 and 18 of the Postmortem Report Page 32 of 80 HC-NIC Page 32 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT could have been caused by the weapon of offence.

(iii) The Trial Court has referred to the testimony of PW12, the Homeopathic doctor, Dr.Durgesh Avdheshkumar. It has taken note of the aspect that the doctor has stated that the appellant told him not to treat the deceased and if he does so, she would file a case against him. From the above, the Trial Court has derived the conclusion that the appellant had nursed an intention of killing the deceased, meaning thereby, that the murder of the deceased was a premeditated one by the appellant.

(iv) Another aspect that appears to have weighed with the Trial Court is the extrajudicial confession stated to have been made by the appellant, which has been referred to by PWs1, 7, 8, 10 and 13.

(v) The Trial Court has not believed the plea of the appellant that the incident took place during a scuffle that ensued when the appellant saw the deceased molesting their daughter Karishma at night. On the contrary, the learned Judge has opined that there must have been a quarrel Page 33 of 80 HC-NIC Page 33 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT between the accused and the deceased due to the "bad character" of the appellant, because of which the appellant hit the deceased on the head with the weapon of offence. According to the learned Judge, the appellant has introduced the story regarding the molestation of her daughter by the deceased in order to save herself. The learned Judge has further held that the Police investigation does not support this theory and no evidence has been produced on record regarding this aspect.

(vi) Broadly on the basis of the above conclusions, the Trial Court has convicted the appellant for the offence of murder and sentenced her to undergo life imprisonment.

44. Before this Court enters into a discussion regarding the above findings, it would be pertinent to advert to the judgments relied upon by the learned advocate for the appellant.

45. The first judgment in the case of Mangesh Vs. State of Maharshtra (supra) has been relied upon in Page 34 of 80 HC-NIC Page 34 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT support of the submission that the incident took place during a scuffle between the appellant and the deceased and there was no premeditation on the part of the appellant to cause the death of the deceased. According to the learned advocate for the appellant, the reason behind the incident is that the appellant lost her selfcontrol when she saw the deceased molesting their daughter at night. The relevant extract of the judgment is reproduced hereinbelow :

"13. The judgment cited by the learned counsel for the State, Pulicherla Nagaraju v. State of A.P., is quite distinguishable from the present case as in that case the knifeblow that caused death was given with full force and the single injury was found to be 12 cm deep. Even in that case the law has been laid down as under: (SCC p.458, para 29) "29. ... The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all Page 35 of 80 HC-NIC Page 35 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention".

This Court has reiterated the same view in Sridhar Bhuyan v. State of Orissa and Gali Venkataiah v. State of A.P.

14. It is not the case even in any of the dying declarations that the appellant had premeditated or preplanned his actions or was having any information prior to the incident that the deceased would be found with his sister Sandhya at the place of occurrence. Their meeting might have been taken by the appellant as temerity.

Therefore, it is a clear cut case of loss of self control and in the heat of passion, the Page 36 of 80 HC-NIC Page 36 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT appellant caused injuries to Prashant (deceased). By no means, can it be held to be a case of premeditation."

46. The next judgment relied upon is that in the case of Saroj @ Suraj Panchal Vs. State of West Bengal (supra), wherein, on the facts of that case, the Supreme Court has held as below :

"8. It is not in dispute that there was a love affair between Bandana Panchal and Sukumar Ray and it was not liked by the family members of Bandana Panchal. On the occurrence night at about 8.00 p.m. Sukumar Ray went to the house of Bandana Panchal to meet her.

Annoyed by the presence of Sukumar Ray in the night in their house the appellants and other accused persons beat Sukumar Ray and dragged him from the first floor to the ground floor through wooden staircase which resulted in injuries. Nobody would tolerate such an intruder into their house in the night hours. By no means, can it be held to be a case of premeditation and it was a case of grave and sudden provocation and would come under the First Exception to Section 300 IPC. The fact situation bears great similarity to that in the decisions in Mangesh vs. State of Maharashtra [JT 2011 Page 37 of 80 HC-NIC Page 37 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT (1) SC 15: (2011) 2 SCC 123] and State of Punjab vs. Jagtar Singh & Ors. [JT 2011 (8) SC 300: (2011) 14 SCC 678].

9. Looking at the nature of injuries sustained by the deceased and the circumstances as enumerated above it can be concluded that the death was caused by the acts of the appellants/accused done with the intention of causing such bodily injury as is likely to cause death and therefore the offence would squarely come within the first part of Section 304 IPC and the appellants would be liable to be convicted for the said offence. The conviction of the appellants/accused nos.1 and 3 under Section 302 read with Section 34 IPC is liable to be set aside.

47. The judgment in the case of Kala @ Chandrakala Vs. State (supra), has been pressed into service on behalf of the appellant, on the point of the extra judicial confession purported to have been made by the appellant. The relevant extract of the judgment is reproduced hereinbelow:

"6. Firstly, we will examine whether the extra judicial confession which is a weak kind of evidence, inspire the confidence. Susheela, P.W.4 has stated that Murugesan was married to the appellant 14 years before the Page 38 of 80 HC-NIC Page 38 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT incident. She came in search of his brother Murugesan to the house of the deceased. Murugesan has told her on 12.5.2005 that appellant had threatened to kill him as he was habitual of consuming alcohol. When she did not receive any telephone call for 15 days from the deceased, she went to his village. On enquiry she was informed by the appellant that she, her nephew Prakasam and father murdered the deceased and threw his body under the bridge. Susheela, P.W.4 further stated that the appellant touched her legs and stated that she would give properties of her father to two children and that she should not inform the police. Thereafter, P.W.4 went to the police station on the same day and lodged the complaint Ex.P2. The police showed her the photograph, shirt and slippers and asked her to identify the same. She identified them to be of her brother. She has further stated to have gone to police station after 5 days with photograph of deceased. In the cross examination, she has also stated that she had signed the agreement for sale of land executed by the accused. It is apparent that accused was not having good relationship with Susheela, PW.4. Making confession to such an inimical person is most unlikely. When the witness had gone in search of the deceased to the house of the accused it is Page 39 of 80 HC-NIC Page 39 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT most unlikely that the confessional statement would be made to her readily. It is not that the appellant had gone to the house of P.W.4 to make the confession. On the other hand query was made by the daughter of the deceased to Susheela, P.W.4 as to the whereabouts of the deceased, meaning thereby the whereabouts of the deceased were not known even to his daughter. In case the deceased had been killed in the house, perhaps the daughter would have known about the offence having been committed by the accused.

7. In Sahadevan and Anr. v. State of Tamil Nadu (2012) 6 SCC 403, it has been observed that extrajudicial confession is weak piece of evidence. Before acting upon it the Court must ensure that the same inspires confidence and it is corroborated by other prosecution evidence. In Balwinder Singh v.

State of Punjab 1995 Supp (4) SCC 259, it has been observed that extrajudicial confession requires great deal of care and caution before acceptance. There should be no suspicious circumstances surrounding it. In Pakkirisamy v. State of Tamil Nadu (1997) 8 SCC 158 it has been observed that there has to be independent corroboration for placing any reliance upon extrajudicial confession. In Kavita v. State of Tamil Nadu Page 40 of 80 HC-NIC Page 40 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT (1998) 6 SCC 108 it has been observed that reliability of the same depends upon the veracity of the witnesses to whom it is made. Similar view has been expressed in State of Rajasthan v. Raja Ram (2003) 8 SCC 180, in which this Court has further observed that witness must be unbiased and not even remotely inimical to the accused. In Aloke nath Dutta v. State of West Bengal (2007) 12 SCC 230 it has been observed that the main features of confession are required to be verified. In Sansar Chand v. State of Rajasthan (2010) 10 SCC 604 it has been observed that extrajudicial confession should be corroborated by some other material on record. In Rameshbhai Chandubhai Rathod v. State of Gujarat (2009) 5 SCC 740 it has been observed that in the case of retracted confession it is unsafe for the Court to rely on it. In Vijay Shankar v. State of Haryana (2015) 12 SCC 644 this Court has followed the decision in Sahadevan (supra).

8. In the circumstances of the case, the confession made to Susheela, PW.4 does not inspire evidence. She was not having good relationship with accused and is not corroborated by other evidence on record, hence, it would not be safe to act upon it in the facts and circumstances of the case.



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HC-NIC                          Page 41 of 80     Created On Mon Aug 21 04:06:27 IST 2017
                  R/CR.A/58/2013                                            JUDGMENT

The extrajudicial confession made to police is admissible only with respect to the recoveries made of the moped as well as a piece of nylon saree, pursuant to the information, which articles are not proved to be connected with offence."

48. The question that falls for determination before this Court is whether, on the basis of the evidence on record, the Trial Court has arrived at the correct conclusion in holding the appellant guilty of the offence under Section302 IPC, by finding that the murder of the deceased was a preplanned and premeditated one.

49. In order to examine this aspect, it would be fruitful to advert to the provisions of Section300 IPC, which read as below :

"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 Secondly If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Page 42 of 80 HC-NIC Page 42 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT Thirdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

50. As can be seen from the above, culpable homicide amounts to murder only if the act by which the death is caused is done with the intention of causing death or bodily injury as described in "Secondly", "Thirdly" and "Fourthly". Certain exceptions have been carved out to this section which illustrate under what circumstances culpable homicide does not amount to murder. Exception4 to Section300 of the IPC deals with culpable homicide which does not amount to murder if it is committed without premeditation, in a sudden quarrel. The said exception reads as below :

"Exception4: Culpable homicide is not murder if it is committed without premeditation in a sudden Page 43 of 80 HC-NIC Page 43 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."

51. Section304 of the IPC would come into play if the case is found to be falling under Exception4. Section304 of IPC reads as below :

"304. Punishment for culpable homicide not amounting to murder - Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention or cause death, or to cause such bodily injury as is likely to cause death."

52. At this stage, it would be pertinent to examine the necessary ingredients that must be found to be Page 44 of 80 HC-NIC Page 44 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT present in the case, in order to attract the applicability of Exception4 to Section300. This provision of law has been discussed by the Supreme Court in a recent judgment in the case of Surain Singh v. State of Punjab, reported in (2017) 5 SCC

796. The relevant extract of the judgment is reproduced hereinbelow :

"13. Exception 4 to Section 300 of the IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury Page 45 of 80 HC-NIC Page 45 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter.

14. The help of Exception 4 can be invoked if death is caused (a) without premeditation,

(b) in a sudden fight, (c) without the offenders having taken undue advantage or Page 46 of 80 HC-NIC Page 46 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight"

occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".

15. In State of A.P. vs. Rayavarapu Punnayya and Another (1976) 4 SCC 382, this Court while drawing a distinction between Section 302 and Page 47 of 80 HC-NIC Page 47 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT Section 304 held as under: (SCC pp.386 & 388 89, paras 12 and 21) "12.In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not viceversa. 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, 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.

* * *

21. From the above conspectus, it emerges that 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 Page 48 of 80 HC-NIC Page 48 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT 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.""

(emphasis supplied)

53. The above principles of law has also been dealt with by the Supreme Court in another recent judgment in the case of Arjun and another v. State of Chattisgarh, reported in (2017) 3 SCC 247. After taking into consideration the relevant case laws on this point, the Supreme Court has held thus :

"20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. UT, Page 49 of 80 HC-NIC Page 49 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT Chandigarh - (1989)2 SCC 217, it has been explained as under: (SCC p.220, para 7) "7.To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."

21. Further in Arumugam vs. State - (2008)15 SCC 590, in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under: (SCC p.596, para 9) "9.... '18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section Page 50 of 80 HC-NIC Page 50 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provision means 'unfair advantage'.""

22. The accused, as per the version of PW 6 and eyewitness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no premeditation. Injuries as reflected in the postmortem report also suggest that appellants have not taken "undue advantage" or acted in a cruel manner. Therefore, in the fact situation, Exception 4 under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 Exception 4 IPC.





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                   R/CR.A/58/2013                                          JUDGMENT

23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2 32016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of the period already undergone."

54. In Baban Bandu Patil Vs. State of Maharashtra, reported in (2009) 12 SCC 685, the Supreme Court has held as below :

Page 52 of 80

HC-NIC Page 52 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT "17. "6. For bringing in operation Exception 4 to Section 300 IPC it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

7. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds 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. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal Page 53 of 80 HC-NIC Page 53 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT footing. A `sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the `fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties Page 54 of 80 HC-NIC Page 54 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case.

For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression `undue advantage' as used in the provision means `unfair advantage'.

These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujarat - (2003)9 SCC 322, Parkash Chand v.

State of H.P. (2004)11 SCC 381. (SCC pp.383 84, paras 67), Byvarapu Raju v. State of A.P. (2007)11 SCC 218 and Hawa Singh v. State of Haryana - (2009)3 SCC 411."

55. After carefully analyzing the above principles of law enunciated by the Supreme Court, we can enumerate the factors that are required to be present for the Page 55 of 80 HC-NIC Page 55 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT applicability of Exception4 of Section300 IPC, as follows :

(i) There must be a sudden fight.

(ii) There must be no premeditation.

(iii) The act must be done in the heat of passion.

(iv) The assailant must not have taken any undue advantage or acted in a cruel manner.

56. As stated in Surinder Kumar vs. UT, Chandigarh, reported in (1989) 2 SCC 217, which has been quoted by the Supreme Court in Arjun and another v. State of Chattisgarh (supra), the number of wounds caused during the occurrence is not a decisive factor. What is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Where, on a sudden quarrel, a person in the heat of the passion of the moment, picks up a weapon which is handy and causes injuries, he would be entitled to the benefit of Exception4, provided he has not acted with cruelty.

57. In Arumugam vs. State, reported in (2008) 15 SCC 590, also referred to in Arjun and another v. State of Chattisgarh (supra), it has been held that to Page 56 of 80 HC-NIC Page 56 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT bring a case within Exception4, all the ingredients mentioned in it must be found. Though the word "fight" occurring in Exception4 of Section300 is not defined in the IPC, it takes two to make a fight. It remains a question to be judged on the facts of each case whether the fight was such that took place due to a sudden quarrel where the person concerned lost his or her cool, in the heat of passion and inflicted the blows.

58. If all of the above ingredients are present in a given fact situation, the case would fall under Exception4 of Section300 IPC. However, when it is found that there is intent and knowledge, then it would be a case under Section304 PartI IPC. If it is only a case of knowledge and not of intention to cause murder or bodily injury, the same would be a case under Section304 PartII of the IPC.

59. The facts of the present case are required to be minutely examined in light of the above provisions and principles of law. There is no doubt regarding the fact that the deceased died due to injuries inflicted by the appellant. Whether the act committed by the Page 57 of 80 HC-NIC Page 57 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT appellant is murder or culpable homicide not amounting to murder, is the crucial question that arises for determination. Whether the appellant inflicted blows with a premeditated mind or whether they were inflicted without any premeditation or intention to kill, in a sudden fight that took place in the heat of the moment, or a scuffle that ensued due to anger, and loss of selfcontrol and mental equilibrium after seeing the deceased molesting their own daughter, is required to be determined from the facts and circumstances of the present case. The difference between murder and culpable homicide not amounting to murder is a very thin but vital one, which has significant and huge legal consequences. The Court is dutybound to determine the correct nature of the case, upon which would depend the conviction under the correct provision and the appropriate sentence.

60. The law requires that proper and just punishment be awarded to an accused on the basis of the offence committed. The punishment would naturally depend upon the nature of the conviction of the accused under a particular provision. Though there can be no doubt Page 58 of 80 HC-NIC Page 58 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT that the wrongdoer should be punished, however, the law requires that he or she ought to be punished appropriately. Appropriate punishment for the appropriate offence is the mandate of the law. There can be no generalization on this aspect and each case would turn upon its own fact situation.

61. In the present case, PW15, the Investigating Officer, who is a neutral person with no axe to grind with anybody, has categorically stated in his cross examination that it has emerged in his investigation that the deceased often used to molest his daughter, who is also the daughter of the appellant, by raising her lungi. The incident took place due to this act of the deceased. He has clearly stated that his investigation has revealed that it is due to the frequent molestation of her daughter by the deceased, which also took place on the fateful night, that the incident at the hands of the appellant took place. It has further emerged from the crossexamination of this witness that several of the prosecution witnesses, mostly the related ones have, in their statements before him at the initial point of time, disclosed this aspect. He has stated that on Page 59 of 80 HC-NIC Page 59 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT 17.01.2012, PW1, the complainant himself has stated in the statement recorded by him that about three months prior to the incident, the appellant had come to his house and told him that the deceased used to molest Karishma while they were watching television and used to sleep with her in her bed. When Karishma was asleep, the deceased used to raise her lungi and physically molest her. This witness has stated that the appellant told him that she had seen this with her own eyes twice or thrice.

62. The Investigating Officer has further stated that PW7, brother of the deceased, had also disclosed the same thing before him and had stated that this fact was told to him by the complainant. The Investigating Officer has revealed that PW7 had further stated that the complainant had informed him and another person by the name of Jitsing about this complaint made by the appellant by calling them home. The Investigating Officer has further stated that PW7 had stated in his statement that on the day of the incident the accused told him that she was sleeping at night with her daughter Karishma when the deceased covered Karishma's mouth and she awoke.




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63. It further emerges from the testimony of the Investigating Officer that PW8, Samimbanu, had also stated before him that on asking the accused regarding the incident, she had disclosed that at about 4.00 a.m., when the appellant and Karishma were sleeping, the deceased got up and started molesting their daughter Karishma which was seen by the appellant. This witness has further stated that even prior to this incident, the appellant had disclosed to her fatherinlaw, the complainant, that the deceased used to lift Karishma's lungi when she was sleeping at night and try to molest her.

64. The Investigating Officer, in his testimony has at length referred to the statement made by Karishma before him. As per his deposition Karishma had stated before him that when she was sleeping at night, her father, the deceased, covered her face. She started shouting for her mother, the appellant, who awoke and admonished the deceased as to what he was doing. The Investigating Officer has further stated that Karishma had stated before him that the deceased used to nurse Page 61 of 80 HC-NIC Page 61 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT a false suspicion regarding the appellant and quarrel with her.

65. Karishma had further stated before the Investigating Officer that when she was studying in the 7th Standard, the deceased used to sleep in the bed with her but she does not know what he used to do with her. She has further stated that "I do not remember what my father did after raising his lungi, as I was asleep and I am not aware whether my mother saw it or not".

66. The Investigating Officer has further stated that Karishma did not state before him that in spite of her telling the appellant not to hit her father, the appellant continued to do so.

67. In her statement under Section313 of the Code, the appellant, while denying the allegations against her, has stated that "I have not killed the deceased but he may have got injured in a scuffle. The deceased was sleeping on my daughter. I have not committed any offence. A false case has been foisted upon me and I am innocent." Thus, she appears to have stated the true genesis of the incident, which the other related Page 62 of 80 HC-NIC Page 62 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT prosecution witnesses have tried to suppress.

68. The prosecution witnesses whose initial statements have been referred to by the Investigating Officer in his testimony, including Karishma, appear to have resiled from their earlier statements and deposed against the appellant in Court. None of them have accepted their initial versions that the incident took place due to a quarrel at about 4.00 a.m. when the appellant awoke and saw the deceased molesting their daughter Karishma. None of them have stood by their earlier statements that the appellant had complained about the behavior of the deceased with their daughter about three months prior to the incident to the complainant, which fact was known by PW7 and PW8 as well. Not only have Pws1, 7 and 8, who are family members of the deceased, resiled from their earlier statements regarding the true genesis of the incident, but PW9, Karishma, to protect whom the accused appears to have inflicted the blows on the deceased, has also retracted from her earlier stand before the Investigating Officer. On the contrary, Karishma has denied her earlier statement before the Page 63 of 80 HC-NIC Page 63 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT Investigating Officer, with which she was confronted during crossexamination. She has denied that her father molested her on the fateful night and her mother got enraged, due to which the incident took place.

69. The truth, however, has the intrinsic quality of emerging in some form or the other, however much a witness may have been tutored. Karishma has stated that on the night of the incident her mother had gone to sleep at 10:00 p.m. Karishma, her father and her younger brother Samir were sitting and watching television. Thereafter, they put off the lights and went to sleep. Karishma states that she was sleeping with the appellant and her younger brother Samir was sleeping with the deceased, in the same room. From this statement, it is clear that the accused had gone to sleep at 10:00 p.m. while Karishma and the deceased were watching television. There is no contradiction to this at all. The appellant, therefore, would obviously have no knowledge of what would occur later at night as she had unsuspectingly gone to sleep while Karishma and the deceased were still awake and watching Page 64 of 80 HC-NIC Page 64 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT television. Karishma has stated that she was sleeping with her mother. In such a situation, when the deceased came to the bed where Karishma and the appellant were sleeping and covered Karishma's face and when Karishma made a sound which awoke her mother, it is natural that the appellant, in a fit of rage upon seeing the deceased molesting their own daughter, would get enraged and a sudden fight would take place during which the appellant inflicted blows on the deceased. It cannot, therefore, be said that the blows given to the deceased by the appellant were inflicted in a preplanned or premeditated manner. To see a father molesting his own biological daughter, who is also the daughter of the appellant, would naturally be an unbearable situation for any mother. It may be true that Karishma was attached to her father, as stated by her in her deposition. However, a filial attachment to her father cannot be construed as leave and licence for the father to molest his own young daughter. It has come in evidence that the complainant and his other family members were aware of this fact which was told to them by the appellant even prior to this incident.




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70. It is apparent from the statement of the Investigating Officer that Karishma and the other related prosecution witnesses have retracted from their initial statements and have tried to suppress the true genesis and origin of the incident. No mother can be expected to retain her senses and her cool upon seeing her husband molesting their own daughter. It emerges from the testimony of the Investigating Officer that at the initial point of time all the related prosecution witnesses have clearly disclosed this aspect regarding the behavior of the deceased with his daughter in their statements. They have been confronted with their previous statements but have refused to acknowledge them. The stereotyped manner in which all of them have denied their earlier statements suggests tutoring, as all would not naturally parrot the same kind of denials.

71. Karishma, in her crossexamination, at one stage, has admitted that the appellant had admonished the deceased regarding his behaviour in molesting her even earlier.





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72. From the testimony of Karishma, it does appear that she has been tutored, maybe by PW1, her grandfather to protect her father and put all the blame on the appellant insofar as the real cause of the incident is concerned. Being a young girl of about sixteen years, one may understand her shame and confusion. She did not have the strength of character to resist the tutoring by her grandfather and other family members, maybe because she was at the centre of the incident and, additionally, because after the death of the deceased and the arrest of the appellant, she had nobody to live with and was staying with PW1, her grandfather. It is with PW1 that she had come to the Court to give her testimony, which also emerges from her deposition. The improvements in Karishma's testimony are clearly brought out from the deposition of the Investigating Officer wherein he has stated that Karishma has not stated before him that she told the appellant not to repeatedly hit her father, but the appellant continued to do so. In her testimony, Karishma states that the appellant had informed PW1 that the deceased used to molest his daughter. She admits that the deceased had quarrelled with the Page 67 of 80 HC-NIC Page 67 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT accused and upon being admonished by the appellant, the deceased had stated "how can I molest my own daughter."

73. The Investigating Officer is a neutral person who has done his duty. There can be no reason to disbelieve his testimony. Neither has the prosecution been able to shake him to any extent in cross examination.

74. A careful perusal and study of Karishma's testimony raises a doubt in the mind of the Court and points out to a strong possibility that Karishma could have been tutored by her relatives, especially PW1, with whom she was residing, in order to suppress the true origin and cause of the incident in order to protect her own reputation and that of her deceased father, by incriminating the accused.

75. From the material on record, the possibility cannot be ruled out that upon seeing the deceased molesting their own daughter, the appellant got enraged and a scuffle took place between them, during which the appellant inflicted blows on the deceased Page 68 of 80 HC-NIC Page 68 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT with the weapon of offence. The appellant, who had gone to sleep at 10:00 p.m. when the deceased and Karishma were awake and watching television, would not know that the deceased would act in such reprehensible manner during the night. Nor can it be said that the appellant had any intention to kill the deceased or that the blows inflicted by her were preplanned and premeditated. In this view of the matter, we find ourselves unable to agree with the conclusion arrived at by the Trial Court that just because Karishma, being a daughter, has deposed against the appellant, she must be believed and as a corollary to this, the guilt of the appellant for committing the offence of murder stands proved. We further find it difficult to accept the conclusion arrived at by the Trial Court that the appellant has introduced the story regarding the molestation of her daughter Karishma by the deceased only to protect herself and divert attention from the aspect that the deceased used to suspect her character.

No mother would concoct such a story regarding her own husband and young daughter. There are enough suggestions to indicate that the deceased was molesting their daughter even prior to the incident and PW1, PW Page 69 of 80 HC-NIC Page 69 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT 7 and PW8 knew about it. The Trial Court has held that there must have been a quarrel between the accused and the deceased as a result of which the appellant hit the deceased on the head with the weapon of offence.

However, it has attributed the quarrel to the "bad character" of the appellant. Insofar as the character of the appellant is concerned, we find that it was totally unnecessary and uncalled for by the Trial Court to have opined that she had a "bad character". The Trial Court was not justified to put such a label upon the appellant. The Trial Court has, however, believed that there was a sudden quarrel between the appellant and the deceased, for whatsoever reason. We find that there is a strong possibility that the quarrel took place due to the incident of molestation which has been suppressed, but which emerges in the form of contradictions, in order to raise sufficient doubt in the mind of the Court that the truth is far from what is being projected. Though it cannot be denied that the deceased died at the hands of the appellant, however, a doubt is raised regarding the manner in which the incident took place and such doubt is sufficient to give the benefit of Exception4 to the appellant. This Page 70 of 80 HC-NIC Page 70 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT Court is unable to agree with the conclusion of the Trial Court that the appellant inflicted injuries upon the deceased with the intention of killing him, in a preplanned manner and that the charge under Section 302 of the IPC against her is proved beyond reasonable doubt.

76. In support of its conclusion that the appellant nursed an intention to kill the deceased, the Trial Court has referred to the testimony of the Homeopathic Doctor, PW12, who has stated that when he was called by PW7 and arrived at the spot, the appellant told him not to treat the deceased, otherwise she would file a case against him. In any case, this witness has stated that he was not competent to give treatment to the deceased in a Medicolegal case, as he is not an Allopathic doctor but is a Homeopathic doctor. The statement of the Homeopathic doctor in which he has referred to the statement made by the accused after the incident, cannot give any indication of premeditation to commit the offence, which requires to have been formed much prior to the incident. This witness did not even know the appellant or even remember her name though he identified her on seeing Page 71 of 80 HC-NIC Page 71 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT her in Court as the lady who told him not to treat the deceased.

77. The extrajudicial confession stated to have been made by the appellant to PWs1, 7, 8, 10 and 13 is another reason for the Trial Court to have held that the appellant killed the deceased with a premeditated mind. In this regard, PW1 states that he came to know of the incident when the appellant came to his house and told him that she had killed his son. He also states that the appellant had locked the house from outside after killing his son and had told everybody about it. On the other hand, PW7, uncle of the deceased and brother of PW1, states that when they heard sounds, they awoke at night and went to the house of the deceased. They found that the appellant was not opening the door. Upon banging on it, she opened the door. They entered the room and saw the deceased lying in a pool of blood. At that point of time, he states that the appellant had told him that she had killed her husband with the weapon of offence. In crossexamination this witness states that when he entered the room he saw that the deceased was still Page 72 of 80 HC-NIC Page 72 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT alive and gasping, but he did not ask the deceased how he had got injured.

78. PW8, wife of PW7 also states that she went to the house of the deceased on the night of the incident after being woken up by some sounds. First, PW7 went there and she followed. They saw the deceased lying in a bloodied condition and the appellant told them that she had killed him.

79. In crossexamination this witness states that she did not ask the deceased how he had got injured and she does not know anything in this regard. On one hand, PW1 states that after killing the deceased, the appellant had locked the house from outside. On the other hand, PW7 states that the accused had locked the house from inside and only opened it when they banged on the door. PW7, wife of PW8, did not say anything regarding the house being locked either from the inside or outside though she had also gone there. It does not appear to be natural behavior on the part of the uncle and aunt of the deceased not to have asked the deceased how he sustained the injuries even Page 73 of 80 HC-NIC Page 73 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT when he was alive when they saw him. Such contradictions in the testimonies of the above witnesses, coupled with the substantial improvements made by them, which have been disclosed in the deposition of the Investigating Officer, raise serious doubts regarding their veracity and trustworthiness. Rather, they point towards their endeavors to suppress the truth in order to show the deceased in a good light, by hiding the fact that he has molested his own daughter, which is the real cause of the incident.

80. An extrajudicial confession is not considered to be a strong piece of evidence, but is rather a weak kind of evidence. However, it is not as though conviction cannot be maintained with the aid of an extrajudicial confession, provided that the other circumstances lend support and corroborate this kind of evidence.

81. In Kala @ Chandrakala Vs. State (supra), relied upon by the learned advocate for the appellant, reference has been made to the case of Sahadevan and another Vs. State of Tamil Nadu, reported in (2012) 6 Page 74 of 80 HC-NIC Page 74 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT SCC 403, wherein it has been held that an extra judicial confession is a weak piece of evidence and before acting upon it, the Court must ensure that it inspires confidence and is corroborated by other prosecution evidence. There should be no suspicious circumstances regarding it. In Kavita Vs. State of Tamil Nadu, reported in (1998) 6 SCC 108, also referred to in the same judgment, it has been stated that the reliability of an extrajudicial confession depends upon the veracity of the witnesses to whom it is made.

82. In the present case, Pws1, 7, 8, 10 and 13 have all stated that the appellant was shouting to all and sundry that she has killed the deceased. This appears to be very unnatural behavior on the part of the appellant that she would shout to all, after locking the door, according to PW1, or telling each one in person, as per the evidence of the other witnesses that she had killed the deceased. The said related prosecution witnesses would naturally not take her side as they include the father, uncle and aunt of the deceased and it is highly improbable that she would go Page 75 of 80 HC-NIC Page 75 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT to them to make the extrajudicial confession. The manner in which the extrajudicial confession is stated to have been made in a stereotyped manner to each one of them individually, is also unnatural and not worthy of credence. In fact, PW13, who appears to be a person living nearby, said that "Nafisa" came to his house and said that she has killed her husband. One does not know whether he has referred the appellant as "Nafisa", as there is no evidence on record to link the appellant to the name "Nafisa". However, this witness identified the appellant as being "Nafisa" in the Court. Whether the appellant shouted to all and sundry in the courtyard after locking the door that she had killed the deceased and whether she had told the prosecution witnesses individually that she had committed such an act, or whether she had gone to the house of PW13 to tell him that she has killed the deceased, are material discrepancies that tend to erode the veracity of the evidence regarding the extrajudicial confession. PW 9, Karishma, the only eyewitness to the incident, though has stated that the appellant inflicted blows on the deceased, has apparently been tutored to hide Page 76 of 80 HC-NIC Page 76 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT the truth, which has emerged in a few admissions by her in her crossexamination, that even earlier, the appellant had complained to PW1 regarding the molestation by the deceased.

83. Even the smallest doubt is sufficient to take the case out of the ambit of the requirement of proving the case against the appellant beyond all reasonable doubt. When such a doubt is raised by the nature of the evidence on record, this Court cannot accept the conclusion of the Trial Court that the offence of murder, with all its ingredients, has been proved against the appellant beyond reasonable doubt.

84. From the above analysis and reappreciation of evidence, this Court finds that though the appellant has inflicted blows with the weapon of offence on the deceased, which resulted in his death, however it does not appear that she did so in a preplanned or predetermined manner. The incident took place due to a sudden quarrel, in a fit of rage, probably upon seeing the deceased molesting their own daughter at night. In our considered view, therefore, the case would fall under Exception4 to Section300 IPC and not under Page 77 of 80 HC-NIC Page 77 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT Section302.

85. The evidence on record based, upon the factual situation emerging therefrom, clearly reveals that

(i) there was a sudden fight between the accused and the deceased, the genesis of which was possibly the molestation of their daughter Karishma by the deceased, (ii) the act on the part of the appellant was not predetermined, (iii) the act was done in the heat of passion and fit of rage and (iv) the appellant has not taken undue advantage or acted in a cruel manner as it was the natural reaction of a mother under the circumstances. All the ingredients required for the invocation of Exception4 of Section300 of IPC are present in the case in hand.

86. After according deep and anxious thought and considering the entire material on record carefully, we are of the view that the conviction of the appellant under Section302 of the IPC is required to be modified so as to fall under Section304 PartII as there was no intention on the part of the appellant to cause the murder of the deceased.





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                  R/CR.A/58/2013                                            JUDGMENT

87. For the reasons discussed at length hereinabove, in our considered view, the interest of justice demands the passing of the following order :

(1) The appeal is partlyallowed.

(2) The judgment and order dated 09.11.2012, passed by the learned Sessions Judge, Bharuch, in Sessions Case No.41/2012, is hereby modified to the extent that the conviction of the appellant under Section 302 of the IPC is converted to one under Section304 PartII. The judgment under challenge is set aside to the extent indicated above.

(3) Taking into consideration the facts of the case and the evidence on record, the sentence of imprisonment for life is set aside and the appellant is sentenced to undergo seven years imprisonment to meet the ends of justice.

88. The Record and proceedings be sent back to the Page 79 of 80 HC-NIC Page 79 of 80 Created On Mon Aug 21 04:06:27 IST 2017 R/CR.A/58/2013 JUDGMENT concerned Trial Court forthwith.

(SMT. ABHILASHA KUMARI, J.) (A.J. SHASTRI, J.) Gaurav+ Page 80 of 80 HC-NIC Page 80 of 80 Created On Mon Aug 21 04:06:27 IST 2017

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