Raipur, Chhattisgarh v. 1 - State Of Chhattisgarh Through Police Station Kabirnagar District Raipur Chhattisgarh., District
Case Details
1 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR CRA No. 1784 of 2019 Judgment Reserved on 28.08.2025 Judgment Delivered on 10.09.2025 1 - Manoj Sharma @ Akbar S/o Damodar Aged About 35 Years R/o Block- V / 13 H. No. 30, Valmikinagar Police Station - Kabirnagar District - Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Appellant versus 1 - State Of Chhattisgarh Through Police Station Kabirnagar District Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Respondent For Appellant For State :- Mr. Pritam Tiwari, Advocate :-Mr. Devesh G. Kela, P.L. Division Bench Hon'ble Smt. Justice Rajani dubey & Hon'ble Shri Justice Amitendra Kishore Prasad CAV Judgment Per : Amitendra Kishore Prasad, J 1. This criminal appeal under Section 374(2) of the CrPC has been 2 preferred by the appellant against the impugned judgment of conviction and order of sentence dated 30.09.2019 passed by the learned First Additional Judge to the Court of First Additional Sessions Judge, Raipur, C.G., in Sessions Trial No.87/2019 by which appellant herein has been convicted for offence under Section 302 of Indian Penal Code (for short, ‘IPC’) and sentenced him to undergo imprisonment for life and fine of Rs.500/-, in default of payment of fine to undergo additional R.I. for one month. 2. Case of the prosecution, in brief, is that complainant (PW-2), Mohammad Salim had given a house located in Valmiki Nagar to his daughter- Shakeela Bano (hereinafter referred to as the "deceased"), where she resided with her husband- accused/appellant Manoj Sharma alias Akbar. On 27.02.2018, at around 4:30 PM, PW-2 Mohammad Salim visited their residence. The deceased, who had been unwell for approximately one and a half months, requested her father Mohammad Salim (PW-2) to take her to Banjaridham’s house, due to which, accused/appellant got enraged and started assaulting PW-2 Mohammad Salim. When the deceased intervened and objected to the assault, the accused/appellant allegedly pressed her neck while she was lying on the bed. Thereafter, PW-2 Mohammad Salim raised an alarm, prompting nearby residents to rush to the scene and intervene. However, by that time, deceased- Shakeela Bano was found 3
Legal Reasoning
dead. On the report of PW-2 Mohd. Salim, FIR (Ex.P-4) has been registered against the appellant. After that, merg intimation (Ex.P-5) was recorded and inquest proceedings were conducted vide Ex.P/7 and dead body was sent for postmortem where Dr. Snigdha Jain Bansal (PW-8) conducted the postmortem examination of the deceased and opined that cause of death of the deceased was compression of the neck with multiple pathological conditions also contributing to the death and mode of death of deceased was homicidal on nature and gave her reports vide Exs.P-3 & P-19. Accused/appellant was arrested vide Ex.P-17. 3. After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence stating that he has not committed the offence. 4. In order to bring home the offence prosecution has examined as many as 8 witnesses and exhibited 18 documents, whereas the appellant in support of his defence has neither examined any witness nor exhibited any document. 5. The learned trial Court, after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal 4 has been preferred questioning the impugned judgment of conviction and order of sentence.
Legal Reasoning
6. Learned counsel for the appellant submits that the trial Court has erred in convicting and sentencing the appellant for the aforesaid
Decision
offence, and therefore, the impugned judgment is liable to be set aside. He further submits that on the date of incident, deceased had been repeatedly requesting her father (PW-2) to take her to Banjaridham’s house, which enraged the appellant and in a fit of anger, the appellant began assaulting PW-2 Mohammad Salim, and when the deceased attempted to intervene, the appellant, under grave and sudden provocation, pressed her neck. The appellant has been in judicial custody since 01.03.2018 i.e., for more than seven years. In these circumstances, it is contended that the case falls within the ambit of Exception 1 to Section 300 of the Indian Penal Code, and therefore, the act of the appellant amounts to culpable homicide not amounting to murder. Accordingly, it is submitted that the conviction under Section 302 IPC deserves to be converted to an offence punishable under Section 304 Part I or Part II of the IPC. Hence, the present appeal deserves to be allowed, either fully or partially. 7. On the other hand, learned State counsel supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and, learned trial Court has rightly convicted and sentenced the appellant herein for the aforesaid offence, therefore, the appeal deserves to be 5 dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 9. The first question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded the finding in affirmative on the basis of postmortem reports (Exs.P/3 & /19) which is proved by Dr. Singdha Jain Bansal (PW-8), which is the finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 10. Now, the next question is, whether the appellant is author of the crime in question? 11. Considering the statement of PW-2 Mohammad Salim, an eyewitness to the incident, who clearly supported the prosecution’s case, it is evident that on the date of the incident, when the deceased repeatedly requested her father (PW-2) to take her to Banjaridham’s house, the appellant, enraged and under the influence of liquor, initially assaulted PW-2 Mohammad Salim and when the deceased intervened, the appellant pressed her neck, resulting in her death. The trial Court, after considering oral and documentary evidence available on record, clearly 6 recorded a finding that it is the appellant who has committed the aforesaid offence. Such finding, in our considered opinion, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 12. The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant is covered within Exception 1 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellant ? 13. It is profitable here to note Exception 1 to Section 300 of the IPC, which states as under: - “Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.” 14. Exception 1 to Section 300 of the IPC applies when due to grave and sudden provocation, the offender, deprived of the power of self-control, causes the death of the person who gave the 7 provocation. Exception 1 also applies when the offender, on account of loss of self-control due to grave and sudden provocation, causes the death of any other person by mistake or accident. 15. Their Lordships of the Supreme Court in the matter of K.M. Nanavati v. State of Maharashtra 1 laid down the conditions which have to be satisfied for the exception to be invoked which are as under:- “(a) the deceased must have given provocation to the accused; (b) the provocation must be grave; (c) the provocation must be sudden; (d) the offender, by the reason of the said provocation, should have been deprived of his power of self-control; (e) the offender should have killed the deceased during the continuance of the deprivation of power of self-control; and (f) the offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident. Their Lordships held that for determining whether or not the provocation had temporarily deprived the offender from the power of self-control, the test to be applied is that of a reasonable man and not that of an usually excitable and pugnacious individual. 1 AIR 1962 SC 605 8 Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. Their Lordships in paragraphs 84 & 85 of the report observed as under: - “(84) Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision : it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately. (85) The Indian law, relevant to the present enquiry, may be stated thus : (1) 9 The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S. 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.” 16. Very recently, the Supreme Court in the matter of Dauvaram Nirmalkar v. State of Chhattisgarh 2 relying upon K.M. Nanavati (supra) held in paragraphs 12 & 13 as under: - “12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importance to two things when defence of 2 Criminal Appeal No.1124 of 2022, decided on 2-8-2022; AIR 2022 SC 3620 10 provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation.3 The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self-control. The second part emphasises that the offender’s reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short- sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused 3 See the opinion expressed by Goddar, CJ. in R v. Duffy, (1949) 1 All.E.R. 932 11 was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim’s abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused’s retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation. 13.Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused’s reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. This has been aptly summarised by Ashworth4 in the following words: 4 1975 Criminal LR 558-559, and George Mousourakis’s elucidation in his paper ‘Cumulative Provocation and Partial Defences in English Criminal Law’ 12 “The significance of the deceased’s final act should be considered by reference to the previous relations between the parties, taking into account any previous incidents which add colour to the final act. This is not to argue that the basic distinction between sudden provoked killings and revenge killings should be blurred, for the lapse of time between the deceased’s final act and the accused’s retaliation should continue to tell against him. The point is that the significance of the deceased’s final act and its effect upon the accused – and indeed the relation of the retaliation to that act – can be neither understood nor evaluated without reference to previous dealings between the parties.” Exception 1 to Section 300 recognizes that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation.” 13 17. Furthermore, in the matter of Hansa Singh v. State of Punjab5, where the accused appellant therein on seeing G committing the act of sodomy on his son, lost his power and self-control which led him to commit the murderous assault on G and where the accused was convicted under Section 302 of the IPC, their Lordships of the Supreme Court found the murder to be committed during grave provocation and altered the conviction to one under Section 304 Part-II of the IPC. Their Lordships observed as under: - “We, however, feel that the occurrence took place while the deceased was committing sodomy on Haria and that gave such a sudden and grave provocation and annoyance to the appellant which impelled him to assault the deceased. For these reasons we are satisfied that the case of the appellant falls clearly within the purview of Section 304, Part II of the Indian Penal Code. The appellant on seeing the deceased committing the act of sodomy on his son, lost his power and self-control and it was undoubtedly a grave and sudden provocation for him which led him to commit the murderous assault on the deceased.” 18. Also, the Hon’ble Supreme Court in the matter of Vijay alias Vijayakumar vs. State reported in (2025) 3 SCC 671 has held as under:- 5 AIR 1977 SC 1801 14 “16. Exception 1 of Section 300 states that a culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes death of the person who gave the provocation or causes the death of any other person by mistake or accident. 17. It is well established that Exception 1 to Section 300 can apply when the accused is shown to have been deprived of power of self-control by grave and sudden provocation which is caused by the person whose death has been caused. 18. It is not each and every provocation that will reduce the crime from be both grave and sudden. In order to invoke the benefit of the exception, it must be established that the act committed by the accused was a simultaneous a reaction of grave as well as sudden provocation which deprived him of the power of self-control. If the provocation is grave but not sudden, the accused cannot get the benefit of this exception. Likewise, he cannot invoke the exception where the provocation though sudden is not grave. 19. In Mancini v. Director of Public Prosecutions6. Viscount Simon b observed: (AC p. 9) 6 1942 AC 1 (HL) 15 "It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self control, as the result of which he commits the unlawful act which causes death. 'In deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death. to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to show the state of his mind': Stephen's Digest of the Criminal Law, Article 317. The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court d of Criminal Appeal in R. v. Lesbini, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance (a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in 16 the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter." 20. In order to bring the case within Exception 1, the following conditions must be complied with: (i) The deceased must have given provocation to the accused; (ii) The provocation must be grave; (iii) The provocation must be sudden; (iv) The offender, by reason of the said provocation, shall have been deprived of his power of self-control; (v) He should have killed the deceased during the continuance of the deprivation of the power of self-control; and(vi) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident. (vi) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident. 17 21. In other words, before Exception 1 can be invoked, the accused must establish the following circumstances: (i) there was a provocation which was both grave and sudden; (ii) such provocation had deprived the accused of his power of self-control; and (iii) whilst the accused was so deprived of his power of self-control, he had caused the death of the victim. 22.3 The question of loss of self-control comes up indirectly in deciding whether a particular provocation was grave or not. So, if it is proved that the accused did receive grave and sudden provocation, the court is generally prepared to assume that homicide was committed while the accused was deprived of the power of self-control. In some cases, it may be possible for head in spite of grave provocation. But such cases will be rare. So, when the b the prosecution to prove that the accused committed the murder with a cool accused has established grave and sudden provocation, the court will generally hold that he has discharged the burden that lay upon him under Exception 1 to Section 300 IPC. 24. In the words of Viscount Simon: (AC p. 598) 18 "The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill, or to inflict grievous bodily harm the doctrine that provocation may reduce murder to manslaughter seldom applies." (emphasis supplied) 25. Section 105 of the Evidence Act, 1872 casts burden of proof on the f accused. Being an exception, the burden of proving the circumstances covered by Exception 1 is on the accused. Where the prosecution prima facie proves that the act was committed by the accused which had resulted in the death of the deceased and the accused pleads that the case falls within one of the exceptions, it is for him to prove that.” 19. Reverting to the facts of the present case in light of principles of law laid down by their Lordships of Supreme Court in K.M. Nanavati (supra), Hansa Singh (supra) and Dauvaram Nirmalkar (supra), it is quite evident from the statement of PW-2 Mohd. Salim, who is the eye-witness to the incident, that on the 19 date of the incident, he came to the appellant's house, where the deceased persistently requested to accompany him/PW-2. This caused the appellant to become angry and in a state of sudden and grave provocation, under the influence of liquor, appellant first assaulted PW-2 Mohammad Salim and when the deceased attempted to intervene, the appellant pressed her neck, leading to her death. In our considered opinion, the provocation faced by the appellant was undoubtedly grave and sudden, which led him to commit the fatal assault on the deceased. However, he must have had the knowledge and intention that the assault he made was sufficient to cause death. As such, we are satisfied that the appellant's case clearly falls within the purview of Exception 1 to Section 300 of the IPC, and the offence would be classified under Section 304, Part I of the IPC. 20. In view of the aforesaid discussion, the conviction of the appellant for the offence punishable under Section 302 of the IPC, as well as the sentence of life imprisonment awarded to him by the learned trial court, is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause the death of the deceased, but the assault made by him was sufficient in the ordinary course of nature to cause death, the appellant is convicted for the offence punishable under Section 304 Part- I of the IPC and is sentenced to ten years of rigorous imprisonment in place of life 20 imprisonment. However, the fine amount, along with the default sentence imposed by the trial court, shall remain intact. 21. This criminal appeal is partly allowed to the extent indicated herein-above. 22. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha