Babulal Sahu vs State Of Chhattisgarh

Crl.A. 1523 of 2007 REPORTABLE

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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1523 of 2007

BABULAL SAHU ..... APPELLANT

VERSUS

STATE OF CHHATISGARH ..... RESPONDENT

O R D E R

This appeal challenges the concurrent finding of

conviction and sentence awarded to the appellant under

Section 302 IPC for having murdered his wife Basanti

Bai. In the light of the fact that leave had been

granted in this matter on the 29th October, 2007, only

as to the nature of the offence, only the bare facts

are required to be given. Suffice it to say that on

the intervening night of 3rd and 4th January, 2000, the

appellant sought to have sex with his wife. She,

however, retorted that she would not oblige him for the

reason that whenever his bhabhi was around he would

prefer having sex with her. As per the prosecution

story this infuriated the appellant and he committed

the murder of his wife by strangulating her. During

the course of the investigation, it was found that

Crl.A. 1523 of 2007 REPORTABLE

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there were no eye witnesses to the incident and the

entire case hinged on six pieces of circumstantial

evidence. The trial court and the High Court have both

found that the circumstances aforesaid have been proved

and have led to the conviction of the appellant. Mr.

Vijay Panjwani, the learned Amicus Curiae taking a clue

from the leave granted has argued that the case would

fall under Exception (4) to Section 300 of the Indian

Penal Code and the appellant was, therefore, liable to

be convicted under Section 304 Part (i) or Part (ii)

thereof and the appeal to that extent should be

allowed. The learned counsel has also placed reliance

on the judgment of the Bombay High Court reported as

Ghan Sham v. State of Maharashtra (1996) 1 CRL.LJ 27.

We have gone through the evidence on record and

considered the submissions made by the learned counsel

for the parties. It will be seen that as per the

prosecution story the incident happened because the

deceased refused to have sex with the appellant who was

her legally wedded husband and this refusal apparently

had annoyed him, leading to the murder. Exception 4 to

Section 300 of IPC reads as under:

"S.300 Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the

Crl.A. 1523 of 2007 REPORTABLE

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offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault."

A bare reading of this provision would indicate

that it refers to certain specific ingredients which

have to be kept in mind before it can be taken as

applicable. The last two points that are relevant are

that the offender should not have taken undue advantage

of his position or acted in a cruel or unusual manner.

We find that these conditions are not satisfied in this

case. We have gone through the evidence and the post

mortem report and see that the appellant caused as many

as 14 injuries on the neck of the deceased and

strangulated her with enormous force. He had,

therefore, taken undue advantage of the fact that he

was a male and was much stronger physically and the

murder had also been committed in a revolting and cruel

manner. It is true that the refusal of a wife to have

sexual relations with her husband had led to the

quarrel between the spouses but we find that in the

circumstances all the conditions for the applicability

of Exception 4 have not been fulfilled.

Crl.A. 1523 of 2007 REPORTABLE

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Mr. D.K. Sinha, learned counsel for the

respondent-State of Chhattisgarh has also pointed out

that the demand of the appellant for sex had apparently

been satisfied as was clear from the medical evidence

which showed that semen had been found on the clothes

of the victim as well as of the appellant, which is,

indicative that the murder had been committed after sex

between the couple. In other words, the deceased had

already obliged her husband and the cause for the

sudden quarrel no longer existed. We, therefore, find

no merit in the appeal which is dismissed accordingly.

The learned Amicus Curiae will have his fee of

`7,000/-.

.........................J [HARJIT SINGH BEDI]

........................J [CHANDRAMAULI KR. PRASAD]

NEW DELHI APRIL 13, 2011.