The Allahabad High Court has said that a father after seeing his daughter in a compromising position with a person will definitely lose self control and if he caused death in that spur of moment, then the same will fall under culpable homicide not amounting to murder.
The court commuted the sentence given by the Ghaziabad district court in the murder case of life imprisonment of the petitioner to 10 years.
The Division Bench of Justice Kaushal Jayendra Thaker and Justice Arun Kumar Singh Deshwal passed this order while hearing a Criminal Appeal filed by Dharmendra Kumar.
By way of the criminal appeal, the appellant has challenged the order dated 30.10.2015 passed by the Special Judge (Essential Commodity Act)/Additional Sessions Judge, Ghaziabad in Sessions Trial arising out of Case under Section-302 IPC, Police Station-Indirapuram, District-Ghaziabad.
By the impugned judgement, the Sessions Judge convicted the appellant under Section-302 IPC and imposed punishment of life imprisonment along with fine of Rs 40,000/- on the appellant and in case of non-payment of penalty, it was directed that he would be further liable to undergo one year imprisonment.
The First Informant Phoola Devi submitted a tehrir dated 13.09.2011 in Police Station-Indirapuram. In that tehrir, it was mentioned that first informant Phoola Devi had been residing along with her family at N Hayatnagar Khoda. Dharmendra came to her house to call her son Awadhesh Chandra Yadav. Thereafter, between 3 to 4 brothers of Dharmendra, Harendra Kumar came to her house and told her to take his son as he had suffered several knife injuries. Thereafter, she along with her younger son Mahesh went to the house of appellant, then he saw that accused persons were taking out her son from the house and told her loudly to take the dead body of her son. Thereafter, she and her son brought Awadhesh along with police to the metro hospital where the doctors declared him dead.
On the basis of above tehrir dated 13.09.2011, a case in case under Section-302 IPC was registered against the accused Dharmendra and Harendra at 18:15 hours.
The Additional Sessions Judge framed charges against appellant on 08.06.2012 under Section-302 IPC and appellant denied the charges and requested for trial.
After the conclusion of prosecution witnesses, appellant was examined under Section 313 Cr.P.C. In his examination, appellant clearly denied his involvement in the murder of Awadhesh and pleaded his false implication by the first informant. In additional examination under Section 313 Cr.P.C., the appellant refused to give any evidence and pleaded that he had been falsely implicated merely because the alleged incident occurred in his house.
The sole contention of the appellant is that case does not fall under Section 302 IPC but falls under Section 304 IPC, in view of Exception 1 of Section 300 IPC because death of Awadhesh if caused by the appellant is due to losing his self control after seeing the deceased Awadhesh in a compromising position with his daughter, Sapna.
AGA contended that from the evidence it is clear that the appellant has killed his daughter Sapna and son of first informant namely Sheru alias Awadhesh with knife and the appellant has also confessed his involvement in the aforesaid crime before the Investigating Officer and police has recovered a blood-stained knife from the place of incident.
The Forensic Science Laboratory report also established this fact and further contended that from the facts and circumstances, allegations against the appellant under Section 302 IPC is clearly established, therefore, judgement and order of Sessions Judge is absolutely correct.
Counsel for the appellant also contended that the appellant has committed the murder of Awadhesh in a fit of moment due to sudden provocation when he had seen the deceased Awadhesh with his daughter Sapna in a compromising position, therefore, the case falls under Section 304 IPC instead of Section 302 IPC. After considering the evidence as well as the contention of appellant, the sole issue for consideration here is whether the death of Awadhesh is culpable homicide not amounting to murder or culpable homicide amounting to murder.
“In view of the above fact and circumstances, we are of the opinion that firstly, there is no direct evidence that the appellant has caused the death of deceased Awadhesh but from the circumstantial evidence as well as presumption under Section 106 of the Evidence Act, he was held guilty for causing death of Awadhesh. Secondly, this fact is also not in dispute that death of the deceased caused by the appellant was not premeditated but because of the fact he lost self control by grave and sudden provocation because he has seen deceased Awadhesh in a compromising position with his daughter Sapna and in such circumstances, this fact cannot be disputed that a father after seeing his daughter in a compromising position with a person will definitely lose self control and if he caused death in that spur of moment, then same will fall under culpable homicide not amounting to murder.
Thereafter, after considering the evidence on record as well as the contention of the counsel for the appellant and AGA, it is clearly established that the case falls under Section 304 IPC and not under Section 302 IPC, in view of the Exception 1 of Section 300 IPC. Therefore, the appellant deserves to be convicted under Section 304 IPC”, the Court observed.
Therefore, the Court allowed the appeal and impugned judgement of Session is modified to the extent of substituting the punishment of appellant under Section 302 IPC with the punishment under Section 304 IPC with the imprisonment of ten years along with fine of Rs 40,000/-. In case of non-payment of fine, the appellant will further undergo one year imprisonment. Period spent by the appellant in jail during pendency of trial as well as pendency of the appeal will be adjusted in imprisonment imposed by this order and if appellant has already completed ten years in jail, then he should immediately be released on depositing the fine, if he is not wanted in any other case.