Karnataka High Court
Venkateshnaika vs State Of Karnataka on 28 June, 2023
Author: K.Somashekar
Bench: K.Somashekar
-1-
R
NC: 2023:KHC:22684-DB
CRL.A No. 1087 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1087 OF 2017
BETWEEN:
VENKATESHNAIKA
S/O BALYANAIKA
AGED ABOUT 38 YEARS
R/O THOLAHUNASE VILLAGE
DAVANAGERE-577002.
...APPELLANT
Digitally
signed by D (BY SRI. KARTHIK SHANKARAPPA - ADVOCATE
K BHASKAR SRI. SHANKARAPPA S - ADVOCATE)
Location:
High Court AND:
of Karnataka STATE OF KARNATAKA
BY RURAL POLICE
DAVANAGERE P.S.,
REPRESENTED BY SPP
HIGH COURT COMPLEX
BANGALORE-560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE - ADDL. SPP)
CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT OF SENTENCE DATED 06.03.2017 AND
CONVICTION DATED 04.03.2017 PASSED BY THE II ADDL.
DIST. AND SESSION JUDGE, DAVANAGERE IN
S.C.NO.164/2015 AND ACQUIT THE APPELLANT.
THIS CRIMINAL APPEAL, COMING ON FOR HEARING,
THIS DAY, RAJESH RAI K .J., DELIVERED THE FOLLOWING:
-2-
NC: 2023:KHC:22684-DB
CRL.A No. 1087 of 2017
JUDGMENT
This appeal filed by the convicted Accused No.1 is directed against the judgment of conviction and order of sentence dated 04.03.2017 passed in S.C.No.164/2015 by the II Addl. District & Sessions Judge, Davanagere wherein the accused No.1 is convicted for offences punishable under Section 498A of the IPC and he is sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.10,000/- and in default of payment of fine he shall undergo further simple imprisonment for one year. Accused No.1 is also convicted for the offence punishable under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.50,000/-. In default of payment of fine, he shall undergo further simple imprisonment for two years. Both the sentences were to run concurrently.
2. The brief facts of the prosecution case is that the marriage of the deceased Jyothi Bai was solemnized with Accused No.1 about 10 to 11 years prior to 26.03.2015. -3-
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 After the marriage, Accused No.1 led a happy marital life with deceased Jyothi Bai for a few days. Thereafter, Accused No.1 and her in-laws, that is Accused Nos.2 to 5, in furtherance of their common object, had started to harass the deceased and subjected her to both mental and physical cruelty with their illegal demand of dowry by abusing her in filthy language and also abetted her to commit suicide. It is the specific case of the prosecution that on 26.03.2015 at about 6.45 p.m., when the deceased Jyothi Bai was present in her matrimonial house situated at Tholahunase village, Accused No.1 picked up a quarrel with her by suspecting her fidelity, at the instance of Accused Nos.2 to 5 and with an intention to commit her murder, he assaulted on her body with a deadly weapon like axe and caused grievous injuries over her neck and other vital parts of her body. As such, the deceased succumbed to the injuries. Hence, PW-1 / Nagarajanaika, the father of the deceased lodged a complaint before the respondent / police as per Exhibit P1 and based on the -4- NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 same, FIR came to be registered in Cr.No.110/2015 dated 27.03.2015 against Accused Nos.1 to 5 for offences punishable under Sections 143, 147, 498A, 302, 504, and 114 read with Section 149 of the IPC. Thereafter, the respondent / police investigated the case by recording the statement of witnesses and also by conducting spot mahahar and recovery mahazar and by obtaining the reports and after investigation, laid a charge-sheet against the accused for the aforesaid offences before the Committal Court.
3. On committal of the case to the Court of Sessions, the learned Sessions Judge framed charges against the accused for the offences and read over the same to the accused. However, the accused pleaded not guilty for the charges and claimed to be tried.
4. In order to prove the charges leveled against the accused, the prosecution in total examined 19 witnesses as PW-1 to PW-19 and so also marked 22 documents as -5- NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 Exhibits P1 to P22 and 5 material objects MO-1 to MO-5. After examination of the above witnesses, the learned Trial Judge read over the incriminating portions of the evidence as contemplated under Section 313 Cr.P.C. However, the accused denied the incriminating evidence appearing against them. The defence of the accused was one of total denial and that of false implication.
5. After hearing the learned counsel for both the parties and so also by assessing the oral and documentary evidence placed before the Court, the learned Trial Judge convicted Accused No.1 for offences under Sections 498A and 302 of the IPC. However, the learned Sessions Judge acquitted Accused Nos.2 to 5 for the charges leveled against them and so also acquitted Accused No.1 for the offences punishable under Sections 143, 148, 504 and 114 read with Section 149 of the IPC. The said impugned judgment is challenged in this appeal by Accused No.1. -6-
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017
6. We have heard Shri Karthik Shankarappa, learned counsel for the appellant and so also Shri Vijayakumar Majage, learned Addl. SPP for the State.
7. The learned counsel for the appellant vehemently contended that the judgment under appeal suffers from perversity and illegality and the learned Sessions Judge convicted the accused without appreciating the evidence available on record and the entire conviction is based on assumption and presumption and the same is not sustainable in law. He would further contend that the material witness PW-1, that is the father of the deceased who lodged a complaint and so also PW-7, the mother of the deceased had turned hostile to the prosecution case. Further, the prosecution totally relied on the evidence of PW-3, that is the child witness being the son of Accused No.1 and deceased in this case, who is projected as eye- witness to the alleged incident. Except the contradictory say of PW-3, absolutely no other evidence is on record to convict the accused for the charges leveled against him. -7-
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 He would further contend that the prosecution failed to prove the recovery of MO-4 seized under Exhibit P6, since the witness to the same, namely PW-4, partially turned hostile to the prosecution case. Hence, according to him, the judgment under appeal suffers from perversity and the same is liable to be set aside.
8. However, learned counsel alternatively contends that on a perusal of the facts and circumstances of the case, this case does not fall under the category of Section 302 of IPC, since by perusing the evidence available on record including the evidence of PW-3, the entire incident committed on the spur of moment and due to certain provocation by deceased who is none other than the wife of the Accused. Moreover, by perusal of the material on record, it could be seen that the deceased had an illicit affair with somebody and Accused No.1 objected the same and on the fateful day while the accused entered the house, some unknown person ran away from the house. As such, on a grave and sudden provocation the accused -8- NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 assaulted the deceased with MO-4 which was lying inside the house. Hence, according to the learned counsel, there is no such intention or preparation on the part of the accused to commit the murder of the deceased. Admittedly, from their wedlock, there are two children, that is PW-3 / Akash and another son, who are now aged about 17 years and 19 years. Hence, at the most, the offence committed by Accused No.1 may fall under Section 300 Exception 1 which is punishable under the provisions of Section 304 Part I IPC.
9. Refuting the above submission, learned Addl. SPP Shri Vijayakumar Majage vehemently contended that the judgment under appeal does not suffer from any perversity or illegality and the same is based on evidence available on record. The learned Sessions Judge by considering the material evidence adduced by the prosecution, that is the evidence of PW-3 who is none other than the son of Accused No.1 and deceased, convicted the accused for the charges leveled against him. Moreover, by a perusal of -9- NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 the evidence of the Doctor who categorically stated that the injuries sustained by the deceased could be caused by assaulting with MO-4 and the said MO-4 was seized at the instance of the accused under Mahazar Exhibit P6 and though the witness to that effect namely PW-4 partially turned hostile, he deposed to the extent of identifying his signature on Exhibit P6. Further, the learned Addl. SPP would contend that though PW-1 and PW-7, that is the father and mother of the deceased respectively, turned hostile in their cross-examination, however, in their chief examination, they categorically deposed that there was a strained relationship between Accused No.1 and deceased and the accused was harassing the deceased both mentally and physically. The said version is supported by the evidence of PW-3. Hence, the learned Addl. SPP prays to dismiss the appeal.
10. As far as the alternative contention of the learned counsel for Accused is concerned learned Addl. SPP states that by perusal of the evidence and the materials placed
- 10 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 by the prosecution, this case does not fall under Section 300 Exception 1 and which is punishable under Section 304 Part I IPC, since the accused failed to give any explanation in respect of the murder committed in his house and the same was within his knowledge and without such explanation under Section 106 of the Indian Evidence Act, the Court can presume the guilt of the accused under the provisions of Section 114 of the Indian Evidence Act. As such, he prays to dismiss the appeal and confirm the conviction.
11. In the facts and circumstances of the case and in the light of the submission made on both sides, the points that arise for our consideration are,
i) Whether the Judgment under appeal suffers from any perversity or illegality warranting interference by this Court?
ii) Whether the learned Sessions Judge is justified in convicting the appellant / accused for offences under Section 498A and Section 302 of the IPC?
- 11 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017
12. We have bestowed our anxious consideration to the submission made by the learned counsel for the parties and the material available on record including the Trial Court Records.
13. Having heard the learned counsel for both sides and having perused the records, since this Court is an appellate Court, it is just and necessary to re-appreciate the entire evidence of the witnesses deposed before the Trial Court.
a) On a cursory glance of the evidence adduced by the prosecution, PW-1 / Nagaraja Naika who is none other than the father of the deceased in this case had lodged the complaint as per Exhibit P1. He deposed that the marriage of his daughter, that is the deceased, was solemnized with Accused No.1 about 11 years prior to the date of the incident and their relationship was strained for the reason that the Accused No.1 was insisting for dowry from the deceased and as such he was torturing her both mentally and physically. He also states that on the date of the
- 12 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 incident, he received a call from his relatives that his daughter was murdered and as such he lodged the complaint at Exhibit P1. In the cross-examination, he admitted that from third party he received a message of the death of his daughter.
b) PW-2 / Babu is the witness for Exhibit P5, that is the seizure of the clothes of the deceased.
c) PW-3 / Akash is the minor son of the deceased and Accused No.1. He is the eye-witness to the alleged incident and he deposed before the Court that on the date of the incident, the accused murdered his mother by assaulting her with an axe under the influence of alcohol under intoxication. However in the cross-examination, this witness stated that he was playing outside the house at the time of commission of the incident.
d) PW-4 / Puttanaika is a witness for Exhibit P2, that is the spot mahazar. So also Exhibit P6, the recovery mahazar MO-4 is the axe said to have been used for commission of the crime.
- 13 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017
e) PW-5 / Jayanaika is the witness for inquest panchanama conducted as per Exhibit P8. He identified his signature on Exhibit P8 and so also photographs Exhibit P9.
f) PW-6 / Ganeshnaika is a circumstantial witness who turned hostile to the prosecution case.
g) PW-7 / Sharadamma is none other than the mother of the deceased. However, she turned hostile to the prosecution case.
h) PW-8 / Gangamma is the mother-in-law of the deceased. She is a circumstantial witness who turned hostile to the prosecution case.
i) PW-9 / Eeribai is a neighbourer and circumstantial witness who turned hostile to the prosecution case.
j) PW-10 / Kumaranaik is also a neighbourer and a circumstantial witness to the incident. However, he turned hostile to the prosecution case.
- 14 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017
k) PW-11 / Harish is a Village Panchayath Officer. He produced the house extracts of the accused as per Exhibit P15.
l) PW-12 / Harish is the then Police Constable, the carrier of the FSL articles. He is a formal witness.
m) PW-13 / Dr. Tulasinaik had conducted autopsy over the dead body and issued the PM report as per Exhibit P17.
n) PW-14 / Basappa is the Engineer who drew the spot sketch as per Exhibit P18.
o) PW-15 / Syed Jiaulla is the then Police Constable. He transmitted the FIR from the Police Station to the Jurisdictional Magistrate.
p) PW-16 / Lakshman is also a Police Constable. He guarded the dead body of the deceased and handed over the same to the family members.
q) PW-17 / Siddesh is the then PSI who registered the FIR in Cr.No.110/2015 based on the complaint lodged
- 15 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 by PW-1 as per Exhibit P1 and the FIR was marked as Exhibit P19.
r) PW-18 / Dr. Ningegouda is the FSL Officer who conducted examination of the blood stained articles, that is the clothes of the deceased and also MO-4 / weapon and he issued a report as per Exhibit P20 stating that the blood stains found on the articles were of human blood of 'A' group.
s) PW-19 / Pampapathi is the then Police Inspector who conducted the investigation in the case and laid the charge-sheet against the accused for the aforesaid offences.
14. On a careful perusal of the above evidence, that is the evidence of the Doctor PW-13 and the PM report / Exhibit P17 coupled with Exhibit P8 / Inquest panchanama and so also the witnesses for the same, the Medical Officer / PW-13 had opined that the death of the deceased is due to neurogenic and haemorrhage shock as a result of sustaining injury to brain and neck. Further, by looking
- 16 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 into the Inquest Panchanama marked at Exhibit P8 and the photo taken by the I.O. at the time of conducting inquest panchanama, it reveals grievous cut injuries sustained by the deceased on her neck. In such circumstances, in our considered opinion, the prosecution proved the homicidal death of the deceased. Once the homicidal death is proved, the next aspect that arises for consideration is as to whether the accused is responsible for the same.
15. On a careful perusal of the evidence available, admittedly the death is caused in the house of the accused and the deceased. Accused No.1 being the husband of the deceased, has not disputed the place of the death. Moreover, on a perusal of the evidence of PW-1 the father of the deceased, he categorically deposed in his chief examination that his daughter was given in marriage to Accused No.1 and after a few months, he started to harass her both physically and mentally in respect of demand of dowry. As such, there was a strained relationship between the Accused No.1 and the deceased. Even PW-7 also
- 17 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 deposed to that effect. Nevertheless the defence counsel has not seriously disputed the relationship between the accused No.1 and the deceased. The Village Panchayath Officer produced the certificate, that is the Tax Extract that, the house belongs to Accused No.1. Such being the case, by a perusal of the evidence of PW-3 the son of the deceased, though he is a child witness, in his chief examination he categorically deposed that the accused being the father, on the date of the incident, he quarreled with his mother under the influence of alcohol and assaulted her with MO-4 / axe and thereby committed her murder. The evidence of PW.3 coupled with the evidence of the Doctor and also the Scientific Officer, it is clear that accused is responsible for the homicidal death of deceased. The accused being the husband of the deceased, failed to explain any such other circumstances or the reasons for the death of the deceased since the same was caused in the house of the accused. Section 106 of the Evidence Act reads thus:
- 18 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 "106. Burden of proving fact especially within knowledge. -- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him".
16. On a perusal of the evidence, the death of the deceased was well within the special knowledge of Accused No.1 and if he failed to explain the same, then the Court is empowered to presume such fact under the provisions of Section 114 of the Indian Evidence Act, which reads thus:
Section 114 of Evidence act reads thus:
"114. Court may presume existence of certain facts. --The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case".
17. Hence, a conjoint reading of the evidence of PW- 1, PW-3 and Scientific Officer, we are of the considered opinion that the prosecution proved that the accused is responsible for the homicidal death of the deceased. Learned counsel for the appellant vehemently argued that
- 19 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 the evidence of PW-3 cannot be relied for the reason that he is a child witness and as per reliability of testimony of the child witness, he has to pass certain tests, that is the competence to depose the evidence and the same should inspire confidence of the Court, and there must be no improvement. For the same he relied upon the judgment in the case of (STATE OF MADHYA PRADESH vs. RAMESH AND ANOTHER (2011 (4) SCC 786)), wherein the Hon'ble Apex Court at paragraph Nos.8 to 10 has held thus:
"8. In Mangoo & Anr. v. State of Madhya Pradesh, (AIR 1995 SC 959), this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.
- 20 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017
9. In Panchhi & Ors. v. State of U.P. (AIR 1998 SC 2726), this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."
10. In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460, this Court dealing with the child witness has observed as under:
"The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to
- 21 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make- believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
18. We have no quarrel with the dictum laid down in the said judgment of the Hon'ble Apex Court. However, by a perusal of the evidence of PW-1 and PW-3 and mainly the accused having failed to explain the circumstances as to how the deceased died a homicidal death in the house,
- 22 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 in the circumstances, an adverse inference has to be drawn against the accused. Hence we are in agreement in respect of the view of the Trial Court that the accused is responsible for the death of the deceased.
19. However, as far as the alternative contention of the learned counsel for the appellant is concerned, by considering the facts and circumstances of the case, the incident was caused all of a sudden on grave and sudden provocation of the accused for the reason that the deceased, none other than his wife, had an illicit affair and on the date of the incident while he was entering the house, some unknown person ran out of the house and on that issue all of a sudden he lost his self control and assaulted the deceased. Even otherwise, on a perusal of the evidence of PW-3, the child witness also, it is stated that the quarrel took place all of a sudden and at the spur of moment as the accused assaulted the deceased. By a perusal of the material available on record, the other mitigating circumstances in this case that the accused and
- 23 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 deceased married 11 years prior to the incident and were blessed with two children PW-3 and one more child and they were leading a happy marital life till then and there was no complaint in respect of the harassment meted out by Accused No.1 to the deceased on earlier occasion. Nevertheless by perusal of the PM report conducted by the Doctor, it depicts that there are only two injuries on the person of the deceased. Moreover, it is the case of the prosecution that MO-4, that is the weapon said to be used for the commission of the offence was inside the house itself. In such circumstances, the inference can be gathered that there was no such intention on the part of the accused or there was no such preparation on the part of the accused to do away with the life of the deceased. The entire incident passed at a spur of the moment, by advancing two blows by the accused. In the circumstances, it is also the contention of the learned counsel for the appellant that the alleged incident does not fall under the category of Section 302 of IPC and at the
- 24 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 most, it will fall under Exception (I) of Section 300 of IPC which is punishable under Section 304 part I of IPC. Exception I of Section 300 of IPC reads as under:
"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
- 25 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017
20. Exception 1 differs from Exception 4 of Section 300 of the IPC. 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.
21. In this regard, it is relevant to refer to a judgment of the Hon'ble Apex Court in the case of
- 26 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 Dauvaram Nirmalkar v/s The State of Chhattisgarh 2022 SCC online SC 955.
"10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra (1962 AIR 605, 1962 SCR Supl.
(1) 567), 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
- 27 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 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
- 28 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 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.
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 Indian Penal Code. (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
- 29 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 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, as :
"...some act or series of acts, done by the dead man to the accused which would
- 30 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 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...Indeed, 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...".
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
- 31 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 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. 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
- 32 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 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".
22. Taking into consideration the mitigating circumstances and the quarrel between the accused and the deceased, the incident occurred would attract the provisions of Section 300 Part I.
- 33 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017
23. The mitigating circumstances clearly indicate that there was no intention on the part of the accused and the act committed by the accused was in the heat of passion upon sudden quarrel and therefore, the accused has not taken undue advantage or acted in an unusual manner in causing the death of the deceased. In the aforesaid circumstances, the present case would not come under the purview of the provisions of Section 302 IPC but is a case falling under Exception (1) of Section 300 IPC and the act of the accused is punishable under the provisions of Section 304 Part I of the IPC.
24. At this juncture, it is relevant to refer the dictum of Hon'ble Supreme Court in the case of AHMED SHAH AND ANOTHER -VS- STATE OF RAJASTHAN ((2015) 3 SCC 93)), wherein at paragraph 21 it is held as under:
"21. As elaborated earlier, the complainant party went to the field and Sabbir Shah was armed with gum. In the sudden fight, there was a scuffle. During the course of scuffle, the appellants
- 34 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 inflicted injuries on the deceased Sabbir Shah. The accused tried to grapple the gun from Sabbir Shah. There was no premeditation and that the incident was the result of sudden fight. In the scuffle, the other accused inflicted injuries on Rakhu Shah and PW 8 Rakhia.
Considering the facts and circumstances of the case, in our view, the present case cannot be said to be a case punishable under Section 302 IPC but a case falling under Exception 4 to Section 300 IPC. Since the appellants inflicted injuries on the neck and scalp of Sabbir Shah with the intention of causing death, the act of the appellant-accused is punishable under Section 304 Part I IPC."
25. The Hon'ble Supreme Court while considering the provisions of Section 302 r/w 34, Section 394 r/w 34 of IPC and Section 27 of Evidence Act in the case of DIGAMBER VAISHNAV AND ANOTHER -VS- STATE OF CHATTISGARH ((2019) 4 SCC 522), held at paragraphs 18, 19, 40, 41 and 42 as under:
- 35 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017
18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be"
proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by
- 36 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense".
19. It is also well-settled principle that in criminal cases, if two views are possible on
- 37 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808].
40. The prosecution has relied upon the evidence of PW-8 to show that the accused and victims were last seen together. It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence
- 38 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 does not inspire the confidence or is not trust worthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body.
26. In Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2) SCC 372, it has been held as under:-
"31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stated in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded".
42. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC, 715, the Court has reiterated that the last seen together does not by itself lead to the inference that it was the accused who committed the crime. It is held thus:
"12. The circumstance of last seen
- 39 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-
explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant"
27. Talking into consideration the age of Accused No.1 and also that he has two children, that is PW-3 and one more son who are aged about 17 years and 19 years respectively as on today, and also taking into consideration the mitigating circumstances and the oral and documentary evidence, we are of the considered opinion that the impugned judgment convicting the accused for offences punishable under Section 302 has to be modified and converted into one under Section 304 Part I IPC and taking into consideration the gravity of the offences and overall facts and circumstances of the case, we deem it appropriate to hold that the sentence which the accused /
- 40 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 appellant has already undergone for a period of 8 years 3 months shall be termed as service of sentence, in order to meet the ends of justice. The fine amount imposed by the Trial Court shall be intact.
28. On a re-appreciation of the oral and documentary evidence, we are of the considered opinion that the impugned judgment and award has to be modified as stated supra and the accused is convicted for offences punishable under Section 304 Part I IPC.
29. For the reasons stated above, the first point raised is answered in the affirmative. The second point raised is answered in the negative holding that the appellant / accused is convicted for offences punishable under Section 304 Part I IPC instead of Section 302 IPC imposed by the Trial Court.
30. In view of the aforesaid reasons and findings, we proceed to pass the following:
- 41 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 ORDER The appeal preferred by the appellant under Section 374(2) of the Cr.P.C. is hereby allowed in part.
Consequent upon allowing this appeal, the judgment of conviction and order of sentence dated 04/06.03.2017 rendered by the Court of the II Addl. District & Sessions Judge, Davangere in S.C.No.164/2015 is hereby modified to the extent that the appellant / accused No.1 is convicted for offences punishable under Section 304 Part-I IPC instead of Section 302 IPC. The period of 8 years 3 months for which appellant / Accused No.1 was in incarceration shall be treated of service of sentence, to meet the ends of justice. In so far as conviction and sentence held against the appellant / accused as regards the offence under Section 498-A IPC is concerned, the same shall remain intact.
The fine amount of Rs.50,000/- imposed by the Trial Court for offence punishable under Section 302 IPC is hereby reduced to Rs.40,000/-. Further, the fine amount
- 42 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 of Rs.10,000/- imposed by the Trial Court in respect of offence punishable under Section 498-A IPC, shall remain intact. The appellant / accused No.1 shall deposit the total fine amount of Rs.50,000/- before the Trial Court within a period of four weeks from today. In default of payment of the said fine amount, the appellant shall undergo simple imprisonment for a period of six months. On deposit, the said fine amount of Rs.50,000/- shall be released in favour of PW-3 / Akash, being the son of deceased and Accused No.1, on due identification.
If the appellant / Accused No.1 commits default in payment of the fine amount within a period of four weeks from today, the learned Sessions Judge shall secure the presence of Accused and commit him to prison to serve default sentence.
The accused is said to be in incarceration for a period of 8 years 3 months. The said period of 8 years 3 months for which appellant / Accused No.1 was in incarceration shall be termed as service of sentence, to meet the ends
- 43 -
NC: 2023:KHC:22684-DB CRL.A No. 1087 of 2017 of justice. As a consequence, the appellant / accused No.1 shall be released forthwith.
Registry of this Court is directed to forward a copy of the operative portion of the judgment to the concerned Superintendent of Jail Authority where the accused / Venkateshnaika is housed, with a direction to set him at liberty forthwith, if he is not required in any other case.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE KS