Husband Finding Wife Being Intimate With Paramour Is Grave, Sudden Provocation: Gujarat High Court Upholds 2001 Culpable Homicide Conviction
The Gujarat High Court upheld a 2001 trial court order convicting a husband to culpable homicide not amounting to murder, who assaulted his wife after he found her in a compromising position with another man in the former's house, remarking that this could be considered as "grave and sudden provocation".In doing so the court said that the case falls under Section 304-part II IPC as...
The Gujarat High Court upheld a 2001 trial court order convicting a husband to culpable homicide not amounting to murder, who assaulted his wife after he found her in a compromising position with another man in the former's house, remarking that this could be considered as "grave and sudden provocation".
In doing so the court said that the case falls under Section 304-part II IPC as intention along with knowledge to the act and cause his wife's death cannot be attributed to the husband.
For context, Section 304-Part II pertains to culpable homicide not amounting to murder wherein a person can be imprisoned for term which may extend to 10 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 to cause death, or to cause such bodily injury as is likely to cause death.
Justice Gita Gopi in her order noted that accused had raised a defence that act of beating his wife was under grave and sudden provocation, as he had seen his wife and her paramour in a compromising condition.
The court while examining Exception-1 of Section 300 IPC and said that 'grave and sudden provocation' must be by the person whose death has been caused and not every and each provocation will reduce the crime from murder to culpable homicide not amounting to murder.
The court said, "The provocation must be both 'grave' as well as 'sudden'. If the provocation is 'grave; but not 'sudden' the accused cannot get the benefit of this Exception. In the same way he cannot get the benefit, where the provocation is though 'sudden' but is not 'grave'. It must be established that the act committed by the accused was a simultaneous reaction of grave as well as sudden provocation which deprive him of the power of self control".
"According to the complaint he became suspicious one week prior to the incident. The complaint was given on 31.07.1997 and the accused stated that on 30.07.1997 during the night hours after watching T.V. he and his wife and son all were sleeping in the same room and since he was doubting the fidelity of his wife he pretended to sleep and during that time at 0.30 hours at night of 31.07.1997 his wife stood up and entered the next room and at that time Sharma had come in his house from the rear door and he heard both of them in intimate relation, therefore he stood up from his bed, and on entering the next room he saw his deceased wife and the other person in the compromising state and seeing so he got angry and suddenly when he confronted them, deceased wife told him that if he would come in between both of them, then he would not be left alive, therefore he got further enraged. Sharma fled away from the place. The compromising situation, which he saw of his wife and the paramour could be considered as grave and sudden provocation, taking into consideration our Indian Society and the law," the court said.
The court noted that as per the complaint when the accused confronted his wife she "on her own-self and on behalf of the paramour threatened to kill the husband if he would dare to come in between them".
The court said that this utterance by his wife "further provoked the husband" and he started beating his wife with fisticuffs and dashed her to wall and thereafter with the chock gave a blow on her head. He had stated that thereafter, he and his wife together slept on the bed and according to him when he woke up again for drinking water, he tried to wake up his wife twice or thrice by shaking her but found her dead.
"When he saw on 31.07.1997 in the wee hours, his wife with the paramour he lost self-control, thus the case under Exception-I of Section 300 could be said to be proved, hence, the case would not be of murder but of culpable homicide not amounting to murder punishable under Section 304 IPC. The accused is sentenced under Par-II of Section 304 IPC. If there is intent and knowledge then the same would be a case of Section 304 Part-I and if it is only a case of knowledge and not intention to cause murder of bodily injury then the same would fall under Section 304 Part-II. The intent along with knowledge to the act cannot be attributed to the accused, in the case on hand. He had suspicion on his wife's fidelity, but may not have contemplated, that his wife would establish physical relation with the neighbour, as her paramour, in his own house. The provocation cannot be said to be sought on voluntarily provoked by the offender, as an excuse for killing or doing harm to his wife, thus the Exception-1 of Section 300 would not fall under the proviso to consider it a deliberate act of killing the wife," the court said.
On the accused's plea of self defence taken in his statement under Section 313 Cr.P.C the court observed that it was not the accused's case nor it could be brought on record, that accused murdered his wife in private defence apprehending death by any physical assault by his wife.
"So the case of the appellant-accused could only be weighed under Exception-1 of Section 300 IPC, of causing death of wife under 'grave and sudden provocation', having lost the power of self-control, so benefit under Section 100 IPC cannot be claimed by the accused. Thus, the case being of Culpable Homicide not amounting to murder, the punishment would be under Section 304 of IPC. The intention of causing death of the wife cannot be attributed to the accused, hence the case would not fall under Part-I of Section 304 IPC. In the result, there is no reason to interfere in the judgment of conviction and sentence passed under Section 304 IPC Part-II. The learned Trial Court Judge has considered the merits of the case and declared the judgment in accordance to the provision of law," the court said.
Background
The appellant was convicted under Section 304 Part-II IPC by the sessions court in 2021 and was sentenced to serve 5 years rigorous imprisonment along with fine of Rs 3,000.
The appellant's counsel argued that it was not a pre-mediated crime, but was out of grave and sudden provocation as per the evidence on record as the accused had found his wife in a comprising position with another man. It was argued that when he confronted his wife she threatened the appellant that if he comes in between them, he would not be allowed to live, and this enraged the appellant as a consequence of which he lost his self-control.
It was submitted that the accused had no mens-rea to commit the offence nor his conduct was questionable after the incident.
The State submitted that the appellant had waited for the opportunity to murder his wife, thus under the pretext of the false allegation of immoral act of wife has done away with her.
Dismissing the appeal, the court upheld the trial court's order.
Case title: HASMUKHBHAI BHURABHAI VASAVA v/s STATE OF GUJARAT
R/CRIMINAL APPEAL NO. 816 of 2001