BABULAL SAHUversusSTATE OF CHHATISGARH

                     [2011] 5 S.C.R. 313


                      BABULAL SAHU                                A
                              v.
                STATE OF CHHATISGARH
            (Criminal Appeal No. 1523 of 2007)
                       APRIL 13, 2011
                                                                  B
   [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                  PRASAD, JJ.]

     Penal Code, 1860 - s. 302 - Refusal of wife to have
sexual relation with her husband, infuriating him and he          C
committed the murder of his wife by strangulating her -
Conviction and sentence u/s. 302, by the courts below -
Appeal before Supreme Court - Plea of the husban.d that the
case fell under Exception (4) to s. 300 and thus, he was liable
for conviction u/s. 304 Part (I) or (II) - Held: Husband caused   o
as many as 14 injuries on the neck of the deceased and
strangulated her with enormous force - He took undue
advantage of the fact that he was male and was much stronger
physically and the murder Was committed in a revolting and
cruel manner - Medical evidence to the effect that murder         E
had been committed after sex between the couple - Deceased
had already obliged her husband and the cause for quarrel
no longer existed - Thus, all the conditions for the
applicability of E~ception 4 to s. 300 not fulfilled - Appeal
dismissed.
                                                                  F
    Ghan Sham v. State of Maharashtra (1996) 1 CRL. LJ
27 - referred to.

                     Case Law Reference:
    (1996) 1 CRL. LJ 27       Referred to           Para 1        G

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1523 of 2007.

                             313                                  H
    314       SUPREME COURT REPORTS                  [2011] 5 S.C.R.


A       From the Judgment & Order dated 15.6.2007 of the High
    Court of Chatisgarh at Bilaspur in Criminal Appeal No. 58 of
    2011.

          Vijay Panjwani (AC) for the Appellant.
B         D.K. Sinha and Atul Jha for the Respondent.

          The following Order of the Court was delivered

                               ORDER

C         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
D   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
E   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 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
F   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
G   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.
H   We have gone through the evidence on record and considered
    BABULAL SAHU v. STATE OF CHHATISGARH                         315


the submissions made by the learned counsel for the parties.             A
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:                                  B

     "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
     offender having taken undue advantage or acted in a cruel           C
     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             0
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
                                                                         E
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
                                                                         F
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.
                                                                         G
     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
                                                                         H
   316     SUPREME COURT REPORTS                [2011] 5 S.C.R.


A 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
B appeal which is dismissed accordingly.

       The learned Amicus Curiae will have his fee of
   Rs. 7,000/-.

   N.J.                                      Appeal dismissed.