Rahul Hanmant Kamble vs State of Maharashtra

V.K. Tahilramani, J.—Through this Appeal, the Appellant-Original Accused has challenged the Judgment and Order dated 24.07.2009 passed by the Additional Sessions Judge, Kolhapur in Sessions Case No. 24 of 2008. By the said Judgment and Order, the learned Sessions Judge convicted the Appellant u/s 302 of Indian Penal Code (in short, ''IPC'') and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/-, in default, to suffer rigorous imprisonment for four months. The prosecution case, briefly stated, is as follows:--

i. The Appellant i.e. the original accused Rahul was married to Jaya who was the sister of Arjun Gaikwad i.e. the deceased. Arjun Gaikwad was residing in Sadar Bazaar, Vichare Mal at Kolhapur along with his wife, parents and other family members. Accused along with his wife Jaya was residing in Salokhe Park near the house of Dilawar Mulla at Kolhapur. The accused was alleging that his wife Jaya had illicit relation with one Afzal residing in Sadar Bazaar and he came to know about the same some 2 to 3 months prior to the incident, therefore, he had been to the house of his in-laws and told them including deceased Arjun that behaviour of Jaya was not good and that they should convince her properly. However, he was told that he had to maintain his wife and that they would not tell anything to her.

ii. On 29.08.2007 at about 09.30 a.m., the accused left his house telling his wife that he is going for his mason work. The accused took a bicycle on hire. After sometime, he saw his wife and Afzal proceeding in a rickshaw from Salokhe Park towards Subhashnagar. He chased the rickshaw but they were not found, therefore, he went to the house of his in-laws at about 10.30 a.m. and inquired whether his wife Jaya had come there. He was told that Jaya was not there, hence, he went away. Thereafter, again he went to the house of in-laws at 02.30 p.m. and inquired about Jaya. Jaya was not there, hence he went away. Thereafter, the accused went to the house of his in-laws at about 08.00 p.m. and asked whether Jaya had come there. Thereupon, Arjun told him as to why he was constantly inquiring about Jaya and asked him whether he was not able to control his wife. Then, the accused stated that he would bring photograph of Jaya from his house and he will lodge a complaint with the police. Then the accused and Arjun both went towards house of the accused. At about 01.30 a.m., the police came to the house of Arjun and took than to the hospital where the dead body of Arjun was found. Thereafter, investigation commenced. Postmortem was conducted on the dead body of Arjun by PW 16 Dr. Reshma Patil. She found incised wound on the neck and mandible of the deceased. According to PW 16 Dr. Reshma, the injury was sufficient to cause death in ordinary course of nature and it was possible by sharp and cutting object. Thus, it is the prosecution case that the accused caused the death of Arjun by giving him blow on his neck with a cutter. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.

Charge came to be framed against the Appellant u/s 302 of IPC. The Appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the Appellant is that of total denial and false implication. After considering the defence of the accused and the evidence led by the prosecution, the learned Sessions judge convicted and sentenced the Appellant as stated in para I above. Hence, this Appeal.

We have heard the learned Advocate for the Appellant and the learned APP for the State. We have perused the impugned judgment and order as well as evidence on record. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the death of Arjun was caused by the Appellant.

The case of the prosecution is entirely based on circumstantial evidence. The main circumstance against the accused is that of last seen. PW 4 Sushma who is the wife of deceased Arjun has stated about the circumstance of last seen. She has stated that on the day of the incident, the accused came at 10.30 a.m., 2.30 p.m. and 08.00 p.m. to their house and inquired about his wife Jaya. Thereupon, her husband told the accused why he was torturing them by making such inquiries. Then the accused stated that he would bring photograph of his wife Jaya from his residence and lodge a complaint with the police. Both accused and the deceased left the house of the deceased at about 08.00 p.m. to go to the house of the accused. She has stated that at 10.00 p.m., the accused came to her house and stood before her. She asked why he came alone but the accused did not tell anything. Then he went away. Thus, the evidence of PW 4 Sushma brings out two circumstances against the accused. The first one is that of last seen and the second circumstance is that of motive in as much as Arjun had abused the accused and told him whether he could not maintain his wife and why he was again and again troubling them by inquiring about Jaya. Besides the evidence of PW 4 Sushma, there is no other admissible evidence on record to connect the Appellant to the crime.

Jaya, the wife of the accused has been examined as PW 5. She has admitted that she knew Afzal who was residing in Sadar Bazar. There was love affair between her and Afzal. She has further admitted that even after the marriage, whenever she used to go to her parental home, Afzal used to meet her. She has also admitted that on the day of the incident, her husband i.e. the accused had seen her while going with Afzal..

Dr. Chaudhary, learned Advocate for the Appellant submitted that it is the case of grave and sudden provocation. The wife of the accused was having an affair with another person i.e. Afzal and on coming to know about this fact, the Appellant went to the house of his in-laws and told the in-laws including Arjun that they should explain to Jaya i.e. the wife of the accused to behave properly. However, they more particularly Arjun refused to do so and told the accused that he should control his wife properly. On the day of the incident, when the accused had left his house in the morning for work, after some time, he had seen his wife and Afzal going in a rickshaw. He chased the rickshaw but they were not found, therefore, he went to the house of his in-laws three times to make inquiry about his wife. However, he found that his wife was not there. At 08.00 p.m., when he made inquiries with his in-laws, the deceased Arjun told him in provocative language that he was not able to maintain his wife properly and he should not come to their house to make inquiries about Jaya and trouble them. It has come in the evidence of PW 4 Sushma that the accused was telling them that the behaviour of his wife was suspicious and he was telling them to convince her. It has further come in her evidence that 15 days after the marriage, quarrel, started between the accused and his wife and the accused complained that his wife left the house without informing him and on making inquiry with her, she did not reply properly. It is the prosecution case that the wife of the accused was having an affair with one Afzal and the accused used to tell his brother-in-law Arjun (the deceased) and others to explain to his wife. Instead of doing so, Arjun used to talk in an insulting and humiliating manner to the accused. This also happened on the day of the incident as well as just before the incident.

Dr. Chaudhary further submitted that PW 4 Sushma, the wife of the deceased had admitted that at the time when her husband left with the accused, he was under the influence of liquor. The accused despite searching for the whole day, did not find his wife and when he made inquiries with his brother-in-law, his brother-in-law Arjun spoke to him in an insulting and humiliating manner. This in the condition of mind of the accused can be said to cause grave and sudden provocation. When the wife of the accused led an immoral life and when the accused husband was insisting to the brother of his wife that he should explain to his wife Jaya to behave properly, instead of explaining to Jaya or to the accused, when the brother-in-law speaks in an insulting and humiliating manner, it would amount to grave and sudden provocation. One has to understand the condition of the mind of the accused that in the morning he had seen his wife going with her lover in a rickshaw. Thereafter, till night, his wife is not found. On making repeated inquiries with his in-laws, he was insulted and abused specially by his brother-in-law i.e. the deceased. In such condition, it is natural that the accused would lose his mental balance. Where the wife was having immoral relation with another man and on the day of the incident, disappeared with her lover, in such case instead of helping the accused to trace his wife, the in-laws insulted the accused, this would certainly amount to a case of grave and sudden provocation. Thus, in such case, the case falls within exception 1 to Section 300 of IPC. No doubt, the act of the accused has resulted in death of Arjun. However, it is noticed that death has occurred because of only one blow that too given in a state of grave and sudden provocation, hence, in our view, the case of the accused would fall u/s 304 Part I of the IPC.

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 higher 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 was found in an illicit relationship with another.

The Indian Law, relevant to the present enquiry, may be stated thus: (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S. 300 of the IPC. (3) The mental background created by the previous act of the wife of accused and that of victim may be taken into consideration in ascertaining whether the act of the accused was caused due to grave and sudden provocation.

Bearing in mind the additional circumstances, we are inclined to hold that the case of the accused would not fall u/s 302 of the IPC but would fall u/s 304 (Part I) of the IPC. For the offence u/s 304 (Part I) of the IPC, the Appellant is sentenced to imprisonment of seven years rigorous imprisonment. The sentence of fine and in default sentence is maintained. The Appellant shall be released after he serves his sentence if not required in any other case. Set-off be given according to law. In the result, the Appeal is partly allowed.

Office to communicate this order to the concerned authority. Criminal Application No. 1640 of 2012 is disposed of as infructuous.