Crl.A. 1523 of 2007 REPORTABLE 1

 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 2

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 3

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 4

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.