Karnataka High Court
Shankarappa S/O Mahadevappa Hokeri ... vs The State Of Karnataka on 12 January, 2024
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CRL.A No. 100040 of 2021
c/w CRL.A No. 100634 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100040 OF 2021
C/W
CRIMINAL APPEAL NO. 100634 OF 2022
IN CRL.A NO. 100040/2021
BETWEEN:
SHANKARAPPA
S/O. MAHADEVAPPA HOSKERI @ GANIGER,
AGE: 41 YEARS, OCC: LABOURS,
R/O: PAYATI ONI, AT PO: NARENDRA TQ: DHARWAD,
DIST: DHARWAD - 580005.
...APPELLANT
(BY SRI. NEELENDRA D. GUNDE, AMICUS CURIAE)
AND:
Digitally
signed by THE STATE OF KARNATAKA,
SHIVAKUMAR
HIREMATH THROUGH DHARWAD RURAL POLICE STATION,
Date:
2024.01.12 R/BY: STATE PUBLIC PROSECUTOR,
15:06:54
+0530 HCK, DHARWA BENCH-580011.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF
CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENT DATED 04/06/2019 AND ORDER OF SENTENCE DATED
04/06/2019 PASSED BY PRINCIPAL DISTRICT AND SESSION
JUDGE DHARWAD IN S.C. NO. 88/2017 CONVICTING THE
ACCUSED NO. 1 AND 2 SENTENCED UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD ONE MOTH FOR THE OFFENCE
PUNISHABLE UNDER SECTION 341 R/W 34 OF IPC ACCUSED NO.
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CRL.A No. 100040 of 2021
c/w CRL.A No. 100634 of 2022
1 AND 2 SENTENCED UNDERGO IMPRISONMENT FOR LIFE AND
TO PAY A FINE OF RS.25000/- IN DEFAULT TO UNDER GO
RIGOROUS IMPRISONMENT FOR TWO YEAR FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 R/W OF IPC IN SO FOR
CONCERN WITH THE APPELLANT ACCUSED NO.2.
IN CRL.A NO.100634/2022
BETWEEN:
ALTAF S/O. SAIYAD NADAF,
AGE: 27 YEARS, OCC: COOLIE,
R/O: PYATI ONI, NARENDRA,
TAL: DHARWAD,
DIST: DHARWAD-580005.
...APPELLANT
(BY SRI. VIDYASHANKAR D. DALWAI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH DHARWAD RURAL POLICE STATION,
R/BY: STATE PUBLIC PROSECUTOR,
HCK, DHARWA-580011.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF CODE
OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENT DATED 04/06/2019 AND ORDER OF SENTENCE
DATED: 04/06/2019 PASSED BY PRL.DISTRICT AND SESSIONS
JUDGE DHARWAD IN S.C.NO. 88/2017. CONVICTING THE
ACCUSED NO. 1 AND 2 SENTENCED UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD ONE MOTH FOR THE OFFENCE
PUNISHABLE UNDER SECTION 341 R/W 34 OF IPC ACCUSED NO.
1 AND 2 SENTENCED UNDERGO IMPRISONMENT FOR LIFE AND
TO PAY A FINE OF RS.25000/- IN DEFAULT TO UNDER GO
RIGOROUS IMPRISONMENT FOR TWO YEAR FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 R/W OF IPC IN SO FOR
CONCERN WITH THE APPELLANT ACCUSED NO.2.
THESE APPEALS, COMING ON FOR ORDERS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, THIS DAY, RAJESH RAI
K, J., DELIVERED THE FOLLOWING:
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CRL.A No. 100040 of 2021
c/w CRL.A No. 100634 of 2022
JUDGMENT
These two appeals are preferred by the convicted accused No.1 and 2 against the Judgment and order of sentence dated 04.06.2019 passed by the Principal District and Sessions Judge, Dharwad in SC No.88/2017, wherein, the learned Sessions Judge convicted the appellant/accused No.1 and 2 for the offences punishable under Sections 341, 302 r/w Section 34 of IPC and sentenced both the accused to undergo imprisonment for life and to pay a fine of Rs.25,000/- each for the offence punishable under Section 302 r/w Section 34 of IPC and in default of payment of fine they shall further undergo rigorous imprisonment for a period of 2 years. Further, both the accused are sentenced to undergo simple imprisonment for a period of one month for the offence punishable under Section 341 r/w 34 of IPC. Further, learned Sessions Judge also ordered that both orders of sentence shall run concurrently.
2. The accused No.1 has preferred the appeal challenging the order of the learned Sessions Judge in Crl.A.No. 100634/2022 and Accused No.2 has preferred the appeal challenging the order of the learned Sessions Judge in Crl.A.No.100040/2021. Hence, the appeal is heard and taken -4- CRL.A No. 100040 of 2021 c/w CRL.A No. 100634 of 2022 up together for consideration and for the sake of convenience the appellants in both the appeals are referred to their ranks before the trial Court.
3. The factual matrix of the case are that -
The deceased Basavaraju had borrowed a hand loan of Rs.5,000/- from the accused No.1 and as such he had demanded the return of the same on various occasions. On the fateful day i.e, on 01.02.2017 at about 10.30 pm accused No.1 has visited the house of PW1 where the deceased was residing and took along the deceased to his house. Further, when the deceased had been to the house of the accused No.1, PW.1 was informed by the PW.5 and 6 that Accused No.1 in collusion with Accused No.2 have killed the son of PW1. Subsequently, when visited the scene of crime i.e., the house of accused No.1, PW1 saw that deceased was laying on the ground in the puddle of blood with bloodstained injuries on his head. It is in this shocking background, PW.5 and 6 informed the PW1 that they being the neighbors of Accused No.1 when they were sitting outside the house heard the hue and cry of deceased and alarmed, when they visited the house of Accused No.1 they witnessed that accused No.1 was assaulting the deceased with -5- CRL.A No. 100040 of 2021 c/w CRL.A No. 100634 of 2022 wooden rafter and the accused No.2 was holding the hands of the deceased tightly so as to aid the accused No.1 to assault the deceased. Further, they also have informed PW.1 that, when PW.5 and 6 visited the scene of crime, both the accused has fled away. It is in this background, PW.1 has lodged the complaint before PW 17/the then police sub-inspector of Dharwad rural police station as per Ex.P.1. the same came to be registered in Crime No.15/2017 against the accused persons for the offences punishable under Sections 341, 302, r/w Section 34 of IPC as per Ex.P 18.
4. Subsequently, PW.18 took over the investigation and conducted the inquest panchnama on the dead body of the deceased as per Ex.P.10 and has drawn the spot mahazar as per Ex.P.2 also arrested the accused Nos.1 and 2 on 02.02.2017 and based on their voluntary statement, recovered the weapon which is said to have been used for commission of the crime, i.e., MO.9/wooden rafter. He also recovered the bloodstained clothes worn by the accused at the time of incident. Subsequently, after recording the statement of all the witnesses and after obtaining the necessary documents from the concerned authorities, he laid the chargesheet against -6- CRL.A No. 100040 of 2021 c/w CRL.A No. 100634 of 2022 Accused No.1 and 2 for the aforesaid offences before the Committal Court.
5. After committal of the case before the Session Court, the learned Sessions Judge framed charges against the accused for the offences punishable under Sections 302, 341, r/w. Section 34 of IPC and read over the same to both the accused. However, both the accused denied the charges leveled against them and claims to be tried.
6. In order to prove the charges leveled against accused, the prosecution examined in total 18 witnesses before the trial Court as PW.1 to 18 and marked 30 documents as Ex.P.1 to 30 so also produced 13 Material Objects as MO.1 to
13. After completion of the prosecution evidence, the learned Sessions Judge read over the incriminating evidence of material witnesses to the accused as contemplated under Section 313 of Cr.P.C. Though the accused have denied the same they have neither examined any witnesses on their behalf nor placed any documents in support of their defence.
7. After assessment of the oral and documentary evidence, the learned Sessions Judge framed the following points for consideration:
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1. Whether the Prosecution proves beyond all reasonable doubt that on 1/2/2017 at 11.45 p.m. at Narendra Gram Panchayat Property bearing House No.4/65 within the limits of Dharwad Rural police station with common intention, accused no.1 in connection with loan of Rs.5000/- lent by him to the son of the complainant by name Basavaraj Irappa Hosakeri @ Ganiger took said Basavaraj to the above said property and accused no.2 wrongly restrained said Basavaraj by tightly catch holding him the thereby accused no.1 and 2 have committed an offence punishable under Section 341 r/w Section 34 of I.P.C.
2. Whether the prosecution further proves beyond all reasonable doubt that on the above date, time and place, in furtherance of their common intention, accused no.2 caught hold Basavaraj tightly and accused no.1 with an intention of causing death or with the knowledge that he is likely, by such act, to cause death, assaulted with stick on the head of Basavaraj causing bleeding injuries and committed his murder and thereby accused no.1 and 2 have committed an offence punishable under Section 302 r/w Section 34 of I.P.C.
3. What order?
8. The learned Sessions Judge answered point No.1 and two in the affirmative and point No.3 as per the final order and convicted the accused for the offences punishable under -8- CRL.A No. 100040 of 2021 c/w CRL.A No. 100634 of 2022 Sections 341, 302 R/w. Section 34 of IPC and sentenced them as stated supra. The said Judgment is challenged under this appeal by both the accused Nos.1 and 2,
9. Heard the learned counsel appearing in both the appeals for the appellant i.e., Sri. Vidyashankar G. Dalawai in Crl.A. No.100634/2022 and Sri.Neelendrad D. Gunde in Crl.A No.100040/2021 so also the learned Additional State Public Prosecutor.
10. The learned counsel for the appellant Sri. Sri.Neelendrad D. Gunde appearing for the accused No.2 in Crl.A. No.100040/2021 vehemently contend that the Judgment under appeal suffers from perversity and illegality and the learned Sessions Judge convicted the accused for the offences alleged against them without properly appreciating the evidence and material available on record. He also contended that the learned Sessions Judge convicted the accused based on surmises and conjectures, which caused great injustice to the accused. He would further contend that, the evidence of PW.5 and 6 who are said to be the eyewitnesses to the incident, cannot be relied for the reason that their evidence totally suffers from much contradictions and omissions. -9- CRL.A No. 100040 of 2021 c/w CRL.A No. 100634 of 2022
11. He would further submit that the alleged incident said to have been taken place in the late night at about 11:45 PM in the house of accused No.1. There is no possibility of PW.5 and 6 witnessing the said incident at that point of time. He would further contend that on perusal of cross-examination of PW.5 and 6, they categorically admitted that, they neither made any attempt to pacify the quarrel nor ventured to save the life of deceased while the quarrel was taking place. In such circumstances, it cannot be presumed that the PW.5 and 6 have witnessed the incident. The learned counsel would further contended that there is a delay in recording their statement which was recorded on the next day of incident i.e., on 02.02.2017. The learned counsel would also content that the motive for the commission of the crime alleged by the prosecution cannot be believed sicne, in the cross-examination of PW.1 -the father of the deceased categorically admitted that he was not aware about the hand loan obtained by the deceased from accused No.1. According to the learned counsel, the prosecution also failed to prove the recovery of the weapon used for the commission of the offence i.e., MO.9/wooden
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022 rafter. On these grounds learned counsels prays for interference by this Court.
12. Learned counsel, Sri. Vidyashankar G. Dalawai appearing for the accused in criminal appeal No.100634/2022 adopted the arguments advanced by the learned counsel Sri.Neelendrad D. Gunde.
13. Both the learned counsels, alternatively contend that, the case on hand is one which falls under the provision of exception of I of Section 300 of IPC, which is punishable under Section 304Part I of IPC at the most instead Section 302 of IPC by contending that both the accused had no knowledge, intention or preparation to commit the murder of the deceased. Accused and deceased being the friends, the deceased himself accompanied the accused No.1 to his house and the entire incident has occurred in a spur of moment by a sudden quarrel between the deceased and accused No.1 in such circumstance, with the grave and sudden provocation the accused No.1 might have assaulted the deceased with wooden rafter, which was readily available on the spot.
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022
14. Refuting the above arguments advanced by the learned counsels for appellant, the learned Additional State Public Prosecutor would vehemently contend that the Judgment under appeal does not suffer from any perversity and illegality and the learned Sessions Judge, rightly convicted the accused after appreciating the entire evidence and material available on record in the well reasoned Judgment. As such, the impugned Judgment does not call for any interference by this court. He would further contend that PW.5 and 6 being the eyewitnesses to the incident, they categorically deposed about the assault made by accused Nos.1 and accused No.2 facilitating the Accused No.1 by holding the hands of deceased. He would further contends that PW.5 and 6, also immediately informed the incident to PW.1 that is the father of deceased and PW.1, in turn lodged the complaint before the police soon after the incident. On perusal of Ex.P.1, the said aspect clearly forthcoming. In such circumstances, the version of PW.1, 5 and 6 cannot be disbelieved. The learned Additional State Public Prosecutor also emphasized his argument by relying on the material evidence of recovery of M.O.9/weapon used for committing crime under Ex.P.12. He would submit that the
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022 recovery mahazar witness PW.4 clearly supported the prosecution case.
15. According to the learned Additional state public prosecutor, though there are minor discrepancies in the evidence of PW.5 and 6- eyewitness to the incident, the same does not go to the root of the prosecution case. Accordingly, he prays to dismiss the appeal.
16. Having heard the learned counsel for the parties and also on perusal of the evidence and materials available on record, including the trial Court records, the point that would arise for our consideration are that:
"1) whether the Judgment under this appeal is suffers from perversity and illegality ?
2) Whether the learned Sessions Judge justified in convicting the accused Nos.1 and 2 for the offences punishable under Sections 341, 302 R/w.
Section 34 of IPC?"
17. Both the above points being interlinked with each other, the same are taken up for consideration together. This Court being the appellate Court, on re-appreciation of the entire oral and documentary evidence is necessary. On cursory glance of the evidence of the witnesses before the Trial Court -
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022 PW.1/Irappa Banappa Hosakeri is the father of the deceased in this case and he lodged the complaint as per Ex.P.1 before the respondent police. He reiterated the contents of Ex.P.1 and deposed that on the date of incident, PW.5 and 6 informed him that his son deceased was assaulted by accused Nos.1 and 2 in the house of accused No.1. Hence, he rushed to the spot and found the dead body of the deceased. Thereafter, he lodged the complaint before the respondent/police against accused Nos.1 and 2. Though, the learned defence counsel cross-examined this witness at length, nothing worthwhile has been elicited from the mouth of this witnesses.
PW.2- Rudragouda Basanagouda Patil is the witness for inquest panchnama conducted over the dead body of the deceased at Ex.P.10. He identified his signature on the Ex.P.10 and also identified the injuries found on the dead body.
PW.3-Sangappa Ulavappa Ayatti the witness for spot mahazar drawn as per Ex.P.2 and he also identified the Ex.P.5 to 10 - photos and a rough sketch of the spot as per Ex.P.9.
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022 PW.4-Nagappa Basappa Gogi who is a witness for seizure mahazar the Ex.P.12, the seizure mahazar of MO.9/wooden rafter from the house of accused No.1 at his instance.
PW.5-Virupakshappa Irappa Hosakeri and PW.6-Ishwar Basappa Ganiger are the eye-witnesses to the incident. They both deposed that on the date of incident, they both were chatting in front of the house of accused No.1, at that time they heard the hue and cry of deceased and accused from the house of accused No.1. As such, they went to the house of accused No.1, where they found accused No.2 was holding the hands of diseased and accused No.1 was assaulting the deceased with a wooden rafter on his head. By seeing the said incident, they both ran away from the spot and informed the same to PW.1- the father of the deceased.
PW.7-Shivanand Mahadevappa Hangaraki is a witness for seizure of the clothes of accused No.1 in the police station under mahazar of Ex.P.14 as per MO.10 and 11.
PW.8-Basappa Mahadevappa Ganiger is a witness for Mahazar as per Ex.P.15 wherein the cloths of the accused No.2 seized as per MO.12 and 13.
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022 PW.9-Sanjayya Rudrayya Viraktmath is a witness for the Ex.P.16- mahazar, wherein the clothes of the deceased were seized as per M.O.3 to 8.
18. PW.10 and 11- Mallavva and Neelamma deposed about the motive for the commission of the crime. That is the loan transaction between the accused No.1 and deceased Basavaraj.
19. PW.12-Jayaraj Sheshagirirao Kulkarni is a Junior Engineer of HESCOM issued Ex.P.17 stating that at the time of the incident, there was an electricity supply at the spot of incident.
20. PW.13-Ravi Chandrappa Pujar is the then Police Constable of the respondent-Police Station who carried the FIR from the Police Station to the Jurisdictional Magistrate. PW.14- Basavanagouda Paratagouda Marigoudar drawn the spot sketch as per Ex.P.19. PW.15-Hanumantappa Sangappa Gobbargumpi is the Police Constable. A photographer who took the photo of the place of incident so also of the dead body as per Ex.P.3 to 8 under mahazar at Ex.P.13.
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022
21. PW.16-Dr.Rajashekar Narayan Pattar conducted the autopsy over the dead body of the deceasedand issued post- mortem report as per Ex.P.22 and his opinion for cause of death as per Ex.P.23.
22. PW.17-Mahantesh Kallappa Basapur is the then PSI who registered the FIR as per Ex.P.17 based on the complaint of PW.1.
23. PW.18-Prashant Suresh Nayak the investigation officer, conducted the investigation and laid the charge sheet against the accused for the aforesaid offences.
24. On careful perusal of the above evidence, in order to prove the homicidal death of the deceased in this case, the prosecution mainly relied on the evidence of the Doctor Who issued the post-mortem report as per Ex.P.22 and his opinion as per Ex.P.23 that, "death is due to sub archnoid and sub dural hammerage over right occipital are due to injuries sustained as a result of Assault and right perietal the deceased succumbed due to the injuries sustained as a result of assault". The post-mortem report also discloses that the injuries found on the dead body are ante0-mortem in nature. This evidence of
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022 the doctor corroborates the contents of Ex.P.10 - the inquest panchnama. PW.2 is the witness for Ex.P.2 supported the case of the prosecution and deposed that he identified the injuries over the head of the deceased. Hence, on conjoint reading of Ex.P.10, 22 and 23, we are of the considered view that, the prosecution proved the homicidal death of the deceased beyond the reasonable doubt. Nevertheless, the said aspect was not seriously disputed by the learned counsel for appellant.
25. In order to connect the accused for the homicidal death of the deceased, the prosecution mainly relied on the evidence of PW.5 and 6 eye-witnesses to the incident. On careful perusal of the evidence tendered by PW.5 and 6, they trotted that on the date of incident, at about 11-00 pm after having their dinner, they both sitting outside their house at that time, they heard the hue and cry from the house of accused No.1, as such they went to the said spot, at that time the accused No.1 was assaulting the deceased on his head with a wooden rafter and accused No.2 was holding the hands of the deceased. Thereafter, they fled away from the scene of occurrence and informed the same to the PW.1 - the father of the deceased. They further deposed that, the incident caused at
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022 about 11:45 PM and they witnessed the incident with the aid of electrical light burning in the house of accused No.1.
26. Both these witnesses also identified the MO.9/wooden rafter. Though the defence counsel has cross- examined both these witnesses at length, except the admission that neither these witnesses failed to make an attempt to save the life of deceased nor they both informed to the police station, nothing worthwhile elicited from the mouth of these witnesses. Moreover, on perusal of Ex.P.1-complaint lodged by PW.1, it depicts that PW.5 and 6 have informed the PW.1 about the incident and thereby PW.1 lodged the complaint. Hence, the presence of PW.5 and 6 on the scene of occurrence, is forthcoming in Ex.P.1/complaint which was lodged by PW.1 at the earliest point of time. Nevertheless, PW.1 also deposed in his evidence in similar manner. In such circumstances, there is no reason to disbelieve the evidence of PW.5 and 6.Moreover, the contents of Ex.P.1 corroborates with the evidence of PW.1 and also PW.5 and 6. Hence, in our considered view, the learned Sessions Judge has rightly relied on the evidences of PW.5 and 6 and also the complainant-PW.1 and Ex.P.1 to arrive at the conclusion.
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022
27. As rightly contended by the learned Additional State Public Prosecutor in this case, the prosecution also proved the recovery of MO.9-wooden rafter which is said to have been used for the commission of the offence by the accused No.1. Moreover, the doctor-PW.9 who conducted the autopsy over the dead body of the deceased also opined that the injuries found on the dead body of the deceased could have been caused by MO.9. In such circumstances, the prosecution also successfully proved the circumstances of recovery and use of MO.9 by accused No.1 for the commission of crime. Sinc ethsi case is solely based on the evidences of eye-witnesses as per the settled position of law by the Hon'ble Apex Court the motive will not play a vital role in the case on hand.
28. Thus, on perusal of the entire evidence and materials available on record, we are of the view that, the appellant and diseased where together during the night hours and the incident is caused in the house of accused No.1. therefore Section 106 of Indian Evidence Act would get attracted and in the absence of any break-in or third party involvement the chain of facts and circumstance established beyond doubt bares that the appellants and no other persons
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022 are the perpetrator who had inflicted the injuries on deceased. Accordingly, we are in agreement that the reasoning of the trial Court.
29. However, on careful perusal of the facts and circumstances of the case as rightly contended by the learned counsel for appellant, in our considered view, this case would fall under exception I to Section 300 of IPC which is punishable under section 304 Part I of IPC instead of Section 302 of IPC.
30. The Hon'ble Apex Court in the case of Duvaram Nirmalkar Vs. State of Chhattisgarh reported in 2022 SCC OnLine SC 955 wherein the Hon'ble Apex Court relying on K.M. Nanavathi Vs. State of Maharashtra reported in 1960(2) SC supp 567 held in paragraph Nos.09 to 17 held as under -
9. Exception 1 differs from Exception 4 of Section 300 of the IPC9. Exception 1 applies when due to grave and sudden provocation, the offender, deprived of the power of self-control, causes the death of the person who gave the provocation. Exception 1 also applies when the offender, on account of loss of self-control due to grave and sudden provocation, causes the death of any other person by mistake or accident. Exception 4 applies when an offence is committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel and the offender commits culpable homicide without having taken undue advantage of acting in a cruel and unusual manner. The Explanation to Exception 4 states that in such cases it is immaterial which party gives the provocation or commits the first assault.
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022
10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra,10 this Court has held that the conditions which have to be satisfied for the exception to be invoked are (a) the deceased must have given provocation to the accused; (b) the provocation must be grave; (c) the provocation must be sudden; (d) the offender, by the reason of the said provocation, should have been deprived of his power of self-control; (e) the offender should have killed the deceased during the continuance of the deprivation of power of self-control; and (f) the offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident. For determining whether or not the provocation had temporarily deprived the offender from the power of self-control, the test to be applied is that of a reasonable man and not that of an unusually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. K.M. Nanavati (supra) succinctly observes:
"84. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision : it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self- control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.
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85. The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Penal Code, 1860. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
11. K.M. Nanavati (supra), has held that the mental background created by the previous act(s) of the deceased may be taken into consideration in ascertaining whether the subsequent act caused sudden and grave provocation for committing the offence. There can be sustained and continuous provocations over a period of time, albeit in such cases Exception 1 to Section 300 of the IPC applies when preceding the offence, there was a last act, word or gesture in the series of incidents comprising of that conduct, amounting to sudden provocation sufficient for reactive loss of self-control. K.M. Nanavati (supra) quotes the definition of 'provocation' given by Goddard, C.J.; in R. v. Duffy,11 as:
"...some act or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his own mind...[I]ndeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person had the time to think, to reflect, and that would negative a sudden temporary loss of self-control which is of the essence of provocation...".
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022
12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation.12 The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self- control. The second part emphasises that the offender's reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim's abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.
13. Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused's reaction, should
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022 be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. This has been aptly summarised by Ashworth13 in the following words:
"[T]he significance of the deceased's final act should be considered by reference to the previous relations between the parties, taking into account any previous incidents which add colour to the final act. This is not to argue that the basic distinction between sudden provoked killings and revenge killings should be blurred, for the lapse of time between the deceased's final act and the accused's retaliation should continue to tell against him. The point is that the significance of the deceased's final act and its effect upon the accused - and indeed the relation of the retaliation to that act - can be neither understood nor evaluated without reference to previous dealings between the parties."
14. Exception 1 to Section 300 recognises that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation.
15. Following the view expressed in K.M. Nanavati (supra), this Court in Budhi Singh v. State of Himachal Pradesh14 observed that in the test for application of Exception 1 to Section 300 of the IPC, the primary obligation of the court is to examine the circumstances from the point of view of a person of reasonable prudence, if there was such grave and sudden provocation, as to reasonably conclude that a person placed in such circumstances can temporarily lose self- control and commit the offence in the proximity to the time of provocation. A significant observation in Budhi Singh (supra) is that the provocation may be an act or series of acts done by the deceased to the accused resulting in inflicting of the injury. The idea behind this exception is to exclude the acts of violence which are premeditated, and not to deny consideration of
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022 circumstances such as prior animosity between the deceased and the accused, arising as a result of incidents in the past and subsequently resulting in sudden and grave provocation. In support of the aforesaid proposition and to convert the conviction from Section 302 to Section 304 Part I of the IPC in Budhi Singh (supra), the Court also relied upon Rampal Singh v. State of Uttar Pradesh15.
16. For clarity, it must be stated that the prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court. It is in this context we would refer to the case of the prosecution, which is that the deceased was addicted to alcohol and used to constantly torment, abuse and threaten the appellant. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. There was sudden loss of self-control on account of a 'slow burn' reaction followed by the final and immediate provocation. There was temporary loss of self- control as the appellant had tried to kill himself by holding live electrical wires. Therefore, we hold that the acts of provocation on the basis of which the appellant caused the death of his brother, Dashrath Nirmalkar, were both sudden and grave and that there was loss of self-control.
17. Applying the provocation exception, we would convert the conviction of the appellant from Section 302 to Part I of Section 304 of the IPC.
31. On careful perusal of the dictum laid down by the Hon'ble Apex Court with the case on hand, the accused and deceased being the friends and the deceased himself accompanied to the house of accused No.1 on the date of incident during night hours and the manner in which the
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CRL.A No. 100040 of 2021c/w CRL.A No. 100634 of 2022 incident has been committed in the house of accused No.1 and the weapon used for the same and also the assault made by the accused, we are of the view that, the accused might have forced the deceased to return the loan amount and at that time a sudden quarrel would have propped up between the accused and deceased as such on account of loss of self-control and due to grave and sudden provocation the accused without pre- meditation in the heat of passion upon a sudden quarrel has committed the offence of culpable homicide without having taken undue advantage of acting in a cruel and unusual manner. Hence, considering the peculiar facts and circumstance of the case by applying the provocation exception, we would convert the conviction of the accused from Section 302 to Part I of Section 304 of the IPC. Accordingly, we answer the above raised point No.1 in the negative and point No.2 partly in the affirmative and proceed to pass the following:
ORDER i. Both the appeals are partly allowed.
ii. The conviction of the appellants in Crl.
A.No.100634/2022 and Crl.A.No.100040/2021 for the offences
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punishable under Section 302 of IPC is altered to Section 304 Part I of IPC.
iii. The appellants are sentenced to undergo imprisonment for 10 years and to pay a fine of Rs.25,000/- each for the offences punishable under Section 304 part I of IPC and in default of payment of fine, they shall undergo simple imprisonment for a period of two months.
iv. The sentence imposed for the offences punishable under section 341, read with section 34 of IPC is kept-in-tact. Both the sentence shall run concurrently.
v. Appellant Nos.1 and 2 are entitled for set off as provided under Section 428 of CRPC.
vi. The Legal Services Authority is directed to pay Rs.25,000/- to the learned amicus curiae Sri. Neelendra D. Gunde.
Sd/-
JUDGE Sd/-
JUDGE PJ LIST NO.: 1 SL NO.: 46