CRIMINAL APPEAL NO. 209-DB OF 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: February 11, 2009 Parties Name Hans Raj ...APPELLANT. VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. J.S.Thind, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana; JASBIR SINGH, J. JUDGMENT It is allegation against the appellant that on January 10, 2002, he had committed murder of his wife, by causing injuries on her head. Process of law was set in motion on a statement Ex. PD made by Naraini (PW11), mother of the deceased, on the basis of which FIR Ex. PD/1 was recorded in Police Station Rohrai, at 6.20 PM on the same day. Special report reached the concerned Magistrate at 9.30 PM on that very date. Prosecution story as noticed by the trial Court in paragraphs No. 3 and 4 of its judgment reads thus: “3. According to the allegations, complainant Naraini wife of CRIMINAL APPEAL NO. 209-DB OF 2006 -2- Laxman Singh, aged 42 years, was a resident of village Chilhar, Police Station Rohrai. Her husband Laxman Singh was serving in Army. She had five daughters and two sons. Her three elder daughters namely Shakuntla, Kavita and Kanta were respectively married with Vir Singh, Pappu and accused Hans Raj all sons of Mange Ram. The third daughter Kanta who was married with accused Hans Raj had died two years back by falling in the river. About 1- ¼ years back, the complainant married her fourth daughter Smt. Sarvan (since deceased) with accused Hans Raj. After some days of the marriage, the deceased got pregnant. Accused Hans Raj was habitual to drinking and used to quarrel with deceased Sarvan. About 1- ½ months back (prior to the occurrence) the deceased and the accused raised a quarrel over the matter as to where delivery of the deceased would be performed. Thereafter, accused left the deceased at her parental house. On 28.12.2001, a female child was born to deceased Smt. Sarvan at her parental home. On 8.1.2002 accused Hans Raj came there to take back the deceased to the matrimonial home. Upon it, the deceased asked him that he had wasted the entire amount in his drinking and from where he would feed her and her child. The deceased refused to accompany him. On that account, there was ill-will between the two. 4. It was further the allegation of the prosecution that on 10.1.2002, the complainant, her JETH Krishan and JETHANI Phoolwati were sitting in the house. At about 12.00 noon time, CRIMINAL APPEAL NO. 209-DB OF 2006 -3- accused Hans Raj came there to take the deceased. The complainant told that the newly born child was not even one month old, therefore, she would send the deceased in the next month. The deceased was also not ready to accompany the accused. Upon it, the accused got annoyed and started fighting with the deceased. He retorted that he would not leave the deceased alive. Either she should accompany him or he would kill her. Thereafter, the accused lifted a Phookni (iron pipe) lying near the CHULHA (earthen hearth) and gave 2- 3 blows on the head of the deceased. Blood started oozing. The deceased died on the spot. After causing injuries, the accused ran away.” As per record, after leaving her brother-in-law Krishan (PW12) and sister-in-law near the dead body, the complainant proceeded to the Police Station. Sub Inspector Balwant Singh (PW13) along with police party met her at the crossing of village Rohrai and he recorded her statement, on the basis of which an FIR was recorded. He then went to the spot and got the placed of occurrence photographed. He prepared inquest report of the dead body and sent it for post-mortem examination. He also took into possession Phookni and blood stained earth from the spot against separate recovery memos. Rough site plan was got prepared. The Investigating Officer also recorded statements of the witnesses. The accused was arrested on January 23, 2002. On completion of investigation, final report was put in Court for trial. The appellant - accused was charge-sheeted, to which he pleaded CRIMINAL APPEAL NO. 209-DB OF 2006 -4- not guilty and claimed trial. The prosecution examined 13 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the appellant – accused was recorded under Section 313 Cr.P.C., in which he admitted that he was married with the deceased, however, he denied all other allegations. He pleaded innocence and false implication. He took up a plea that PW12 Krishan and his wife were not happy with his marriage with the deceased. It was further alleged that PW11 Naraini had illicit relations with PW12 Krishan. Their relation was not to the liking of the deceased. On fateful day, he was present in his in-laws house. His wife had seen her mother in the company of PW12 Krishan. She objected to the same and due to fear of exposure, both of them committed her murder,however, a false case was foisted upon the appellant. He led no evidence in defence. The trial Court, on appraisal of evidence, came to the conclusion that the prosecution was successful in proving guilt of the appellant – accused and vide judgment and order dated February 20, 2006 and February 21, 2006, respectively, convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 3,000/- with a default clause. Hence this appeal. Shri J.S.Thind, counsel for the appellant has vehemently contended that the prosecution has miserably failed to bring home guilt to the appellant – accused. To save the complainant and PW12 Krishan, a false case has been foisted upon the appellant. Counsel further argued that there was a delay of about six hours in recording the FIR. The prosecution has failed to explain the same. The delayed recording of FIR indicates that it was registered after due deliberations. He further argued that the appellant CRIMINAL APPEAL NO. 209-DB OF 2006 -5- was unarmed, had come to take her wife and the child to his house, as such there was no occasion with him to commit murder of his wife. He prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellant be acquitted of the charges framed against him. Prayer made by counsel for the appellant has been opposed by Shri S.S.Randhawa, Additional Advocate General, Haryana, who, by making reference to the statements of PW11 to PW13, argued that the judgment and order under challenge are perfectly justified. Eye witnesses have given clear account of the incident, the way it has happened. The appellant - accused had felt offended, when PW11 Smt. Naraini mother of the deceased asked him not to take her daughter with him. The appellant – accused picked up Phookni and caused three blows on the head of the deceased, which proved fatal. The very factum that he had repeated the assault goes to show that his intention was to kill the deceased. He prayed that the appeal having no substance be dismissed. After hearing counsel for the parties, we are not inclined to give any credence to an argument raised by counsel for the appellant that on account of delay in recording the FIR, case of the prosecution is liable to be disbelieved. In this case, as per prosecution version, occurrence had taken place on January 10, 2002 at noon. Police Station Rohrai is situated at a distance of 10 Kms. PW11 Smt. Naraini mother of the deceased is an illiterate lady. She might be under stress and some time might have been consumed in making attempt to save the deceased. It has come on record that after noticing that her daughter had died, she left PW12 near the dead body and went to lodge the report. Her statement Ex. PD was recorded at 6 PM , FIR was registered at 6.20 PM and special report reached the Ilaqa CRIMINAL APPEAL NO. 209-DB OF 2006 -6- Magistrate at Rewari at 9.30 PM on the same date. The sequence of events does not show that there was any abnormal delay in lodging the FIR. Present is a case in which the appellant accused had admitted his presence at the spot, though by giving a different version of the occurrence. In such like situation, a little bit delay in lodging the FIR becomes irrelevant. Both eye witnesses PW11 and PW12 have given a vivid description as to how occurrence had taken place. Both the witnesses have stated that the deceased gave birth to a female child about 15 days prior to the date of occurrence. The appellant accused came to the parental house of the deceased, to take her and the child, to his home. Request was made to him that he should wait for another 15 days. However, instead of acceding to the request, he got annoyed and started beating his wife. He picked up a Phookni lying at the spot and inflicted several blows on head of the deceased. Thereafter, he fled away from the spot. It has also come on record that the appellant was under the influence of liquor at the time of occurrence. Post mortem of the dead body was conducted by Dr. Vipul Gadh (PW8) on January 11, 2002. He found the following injuries on the person of the deceased: “1. There was diffuse swelling with minor reddish brown abrasion, present over the right frontal region of the scalp. On dissection, small haemotoma was seen, amounting in nearly 50 ml of blood present. No fracture of underlying bone was seen. 2. There was a lacerated wound of size 6 cm x .75 cm bone deep was present on the left parietal region of scalp, placed anteropsoterily. Blood was oozing from the wound. On CRIMINAL APPEAL NO. 209-DB OF 2006 -7- further dissection, fracture of underlying bone (left parietal) was seen. On further dissection, subdural haemotoma left parietal lobe was seen, amount about 150 Ml of blood. The laceration was present on the left parietal lobe of the brain. 3. A lacerated wound of size 4.5 cm x 1 cm upto bone deep was present near the left parieto occipital region of the scalp, placed transversely. The blood was oozing from the wound. On further dissection, no fracture of underlying bone was seen.” Cause of death was multiple injuries leading to head injury, haemotoma and shock, which were sufficient to cause death in the natural course. All the injuries were found ante mortem in nature and were caused by blunt weapon. Perusal of statement made by the above said witness shows that injury No. 2 was a fracture of skull. Other two injuries do not appear to be very serious. In view of facts, mentioned above, we are of the view that there was no pre-determined mind of the appellant to commit murder of his wife. After marriage, both were residing together. She became pregnant and came to her parental house for delivery of the child. 15 days prior to the date of occurrence, she gave birth to a female child. The appellant came to take her and the child to his house. It appears that when objected, there might be some altercation between him and the parents of the deceased and, may be, under a fit of anger, he picked up Phookni lying at the spot and caused injuries to the deceased. As is apparent from the injury statement, referred to in earlier part of the order, one blow resulted in fracture of the skull. Other CRIMINAL APPEAL NO. 209-DB OF 2006 -8- two injuries were not very serious. Phookni is not a regular weapon of offence. It is a house hold article used to blow fire. The presence of the appellant at the spot is not disputed. In view of facts, mentioned above, we feel that case of the appellant does not fall under the provisions of Section 302 IPC. Rather offence would be covered under the purview of Section 304, Part II IPC. Their Lordships of the Supreme Court in Kotikalapudi Subba Rao v. State of Andhra Pradesh and another, (2008) 5 Supreme Court Cases 390, under similar circumstances, has observed as under: “12. The residual question is whether Section 302 IPC has application. 13.”For bringing in operation of 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. 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 I there is total deprivation of self control, 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 CRIMINAL APPEAL NO. 209-DB OF 2006 -9- 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 footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provcation, 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 I. 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 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 IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool CRIMINAL APPEAL NO. 209-DB OF 2006 -10- 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.” The aforesaid aspects have been highlighted in Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395Parkash Chand v. State of H.P., (2004) 11 SCC 381, at SCC pp. 383-84, paras 6-7, Sachchey Lal Tiwari v. State of U.P., (2004) 11 SCC 410, Sandhya Jadhav v. State of Maharashtra, (2006) 4 SCC 653 and Lachman Singh v. State of Haryana, (2006) 10 SCC 524.” Facts of the present case indicate that the appellant had caused injuries to his wife under heat of passion. He got enraged when PW11 Smt. Naraini, his mother-in-law, asked him not to take his wife(deceased) and the child to his house. Entire episode has happened in quick succession. Facts indicate that there was no opportunity available with the appellant to cool down and take a rational decision. Everything appears to have happened on CRIMINAL APPEAL NO. 209-DB OF 2006 -11- the spur of moment. Doctor has found three injuries on the head of the deceased. In view of nature of the injuries, those injuries could be the result of two blows and not three as alleged by the prosecution. In view of above, it cannot be said that the appellant had taken undue advantage of the situation and had acted in a cruel or unusual manner with an intention to kill the deceased. Taking note of facts, mentioned above, and the ratio of judgment of the Hon'ble Supreme Court in Kotikalapudi Subba Rao's case (supra), we set aside conviction and sentence of the appellant under Section 302 IPC and hold the appellant guilty for commission of an offence punishable under Section 304, Part II IPC and sentence him to undergo RI for ten years and to pay a fine of Rs. 3,000/-. In default of payment of fine, he shall further undergo RI for six months. Conditional release warrants be prepared and sent to the Jail authorities with a stipulation that in case the appellant has undergone the sentence now awarded, he be released forthwith unless required in any other case. (JASBIR SINGH) JUDGE (JORA SINGH) JUDGE February 11, 2009. DKC