Karnataka High Court
Prashant Datta Naik vs The State Of Karnataka on 12 January, 2024
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CRL.A No. 100322 of 2019
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. 100322 OF 2019
BETWEEN:
PRASHANT DATTA NAIK,
AGE: 40 YEARS, HOTEL WORK,
R/O: BAGRIBAIL, KUMTA
...APPELLANT
(BY SRI. VIDYASHANKAR G. DALWAI, AMICUS CURIAE)
AND:
THE STATE OF KARNATAKA,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
THROUGH BY KUMTA POLICE STATION.
...RESPONDENT
Digitally signed
by (BY SRI. M.B. GUNDAWADE, ADDL.SPP.)
SHIVAKUMAR
HIREMATH
Date:
2024.01.12 THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF
15:07:15 +0530
CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION FOR OFFENCE UNDER SECTION
498-A AND 302 OF INDIAN PENAL CODE. DATED 06-02-2018 AND
ORDER OF SENTENCE DATED 07-02-2018 PASSED BY THE PRL.
DISTRICT AND SESSIONS JUDGE, UTTAR KANNADA, KARWAR IN
S.C. NO.46/2014, AND AN ORDER OF ACQUITTAL MAY KINDLY BE
PASSED IN FAVOUR OF APPELLANTS BY ALLOWING THIS APPEAL.
THIS APPEAL, COMING ON FOR HEARING HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, THIS DAY, RAJESH RAI
K, J., DELIVERED THE FOLLOWING:
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CRL.A No. 100322 of 2019
JUDGMENT
This appeal is preferred by the convicted accused against the Judgment and order of sentence passed in SC No.46/2014 dated 06.02.2018, by the Principal District and Sessions Judge, Uttara Kannada, Karwar, wherein, the learned Sessions Judge convicted the accused for the offences punishable under Sections 498-A and 302 of IPC and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.25,000/- and in default of payment of fine to further undergo simple imprisonment for a period of six months for the offence punishable under section 498A of IPC and also sentenced to undergo life imprisonment till death and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of five years for the offence punishable under Section 302 of Indian Penal Code. The learned Sessions Judge has also ordered that all the sentences shall run concurrently.
2. The factual matrix of the prosecution case are that on 30.03.2014, the accused/Appellant had visited the parental house of his wife (who is now deceased in this case) and in the intervening night of 30.03.2014 and 31.03.2014, he had picked up quarrel with the deceased with a malicious intention to kill -3- CRL.A No. 100322 of 2019 her. Accordingly, at about 2.00 am, the accused stabbed his wife with scissor (M.O.2, which was used for cutting the clothes), on her head, stomach, dorsum and also on her private parts and caused bleeding injuries to her. Thereafter, the family members of the deceased carried her to Government Hospital at Kumta, wherein, PW.14-Dr.Mahesh Shetti treated her. Subsequently, she was shifted to Wenlock Hospital, Mangalore for further treatment. However, the doctor at Wenlock Hospital, Mangalore declared her as brought dead. Hence, PW.1 lodged the complaint before PW.13-PSI as per Ex.P.1 and PW.13, after receipt of the Complaint registered the FIR as per Ex.P.15 against the accused, for the offences aforementioned. Thereafter, PW.16 took up further investigation of the case from PW.13 and he directed Smt.Chandramati-ASI to go to Mangalore Wenlock Hospital and to conduct the inquest panchanama. Subsequently, PW.16, made the recoveries based on voluntary statement of accused after his arrest. Thereafter, he recorded the statement of all the witnesses and after obtaining the documents from the relevant authorities, he derived to a conclusion in the investigation and accordingly, laid the charge sheet against the accused for the aforesaid offences before the committal Court.
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3. After committal of the case before the session court, the learned Sessions Judge framed charges against the accused for the offence under section 498A and 302 of IPC and read over the same to the accused. However, the accused denied the charges and claims to be tried.
4. In order to prove the charges leveled against the accused, the prosecution in total examined 16 witnesses as PW.1 to 16 and got marked 44 documents as Ex.P1 to 44 so also produced the Material Objects at MO.1 to 9 before the Trial Court. Subsequently, post completion of the prosecution witnesses, learned Sessions Judge has recorded the statement of the accused as required under the provisions of Section 313 of Cr.P.C. The accused filed a written statement urging his defence under the provision of 313(2) of Cr.P.C. However, he neither chose to examine any witnesses on his behalf nor produced any documents in support of his defence.
5. After assessment of the oral and documentary evidence placed before the trial Court, the learned Sessions Judge convicted the accused for the charges leveled against the accused/Appellant as stated supra. The said Judgment is challenged under this appeal.
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6. Heard the learned counsel for the appellant so also the learned Additional State Public Prosecutor for the respondent/ State.
7. Learned counsel for the appellant would contend that the Judgment under appeal suffers from perversity and illegality. He further contends that the learned Sessions Judge convicted the accused without properly appreciating the evidence available on record, on perusal of the evidence of PW.1 and 5, eye witnesses to the incident, they categorically stated that the alleged incident caused post midnight, in the bedroom, where the accused and deceased were sleeping. However, accused has pleaded a specific defence that some of the unknown 4 to 5 persons had trespassed the house of the mother of deceased on the fateful night and they made an attempt to assault the accused and when interfered, the strangers assaulted the deceased and the alleged incident said to have been taken place as a result of the same.
8. Further, learned counsel for the appellant also submits that on perusal of cross-examination of PW.1 and 3, there are much contradictions and omissions forthcoming. Moreover, their evidence not corroborates with the documents -6- CRL.A No. 100322 of 2019 or independent witnesses. Hence, the learned counsel submits that the impugned Judgment is not sustainable under law.
9. He also alternatively contend that, even if the entire incident admitted for the sake of argument, this case falls under the provisions of exception I to Section 300 of IPC which is punishable under 304 Part II of IPC. In order to substantiate his arguments, he submits that, the accused being the husband of the deceased in this case, had no such preparations, intentions or the motive to take away the life of his wife. Even otherwise, the material used for the commission of the crime i.e., MO.2-scissor which was used to cut the cloths in the house of PW.5 which was available in the house, cannot be termed to be an dangerous weapon. The accused might have caused injuries to the deceased in the said weapon in a sudden quarrel by loosing his self- control in a spur of moment as such the act of the accused squarely falls on the exception carved under Section 300 of Indian Penal Code which is punishable under Section 304 Part II of IPC.
10. Refuting the above submission made by the learned counsel for the appellant, the learned Additional State Public Prosecutor (for short 'ASPP) in support to the impugned -7- CRL.A No. 100322 of 2019 Judgment contend that the trial Judge has passed the well- reasoned Judgment by appreciating all the oral and documentary evidences available on record. As such, there are no reason forthcoming to interfere in the Judgment and order of sentence passed by the learned Sessions Judge. He would further contend that on perusal of the evidence of PW.1, who is none other than the sister of the diseased and PW.5 i.e., the mother of the deceased are concerned, they being the kin's of the deceased and who are said to be the eye witnesses to the incident, categorically deposed as to the commission of the alleged crime by the accused. Learned ASPP further contends that when the incident being alleged to be committed by the accused in the house of his wife when they both were together during the night ours. Therefore, provisions of Section 106 of the Indian Evidence Act attracts the case on hand and in the absence of any break-in or third party involvement the chain of facts and circumstance established beyond doubt, bears that the accused/appellant but no other person was the perpetrator who had inflicted injuries to his wife/deceased. According to him this case does not fall under the provocation exception and conviction cannot be altered for the offence 304 part II of IPC -8- CRL.A No. 100322 of 2019 instead of Section 302 of Indian Penal Code. Accordingly, he prays to dismiss the appeal.
11. Having heard the learned counsel for of the appellant also the learned Additional State Public Prosecutor for respondent and on perusal of the documents available on record, the points that would arise for our consideration are that:
"i)Whether the Judgment and order of conviction suffers from perversity and illegality?
ii) Whether the learned Sessions Judge is justified in convicting the accused for the offences punishable under Section 498-A and 302 of IPC?"
12. Both the above points being interlinked with each other, the same are taken up for consideration together.
13. This Court has cautiously and vigilantly re- considered the oral and documentary evidence available before the trial Court.
14. PW.1-Smt.Nagaratna Veeresh Sammasagi, the sister of the deceased lodged a complaint as per the Ex.P.1 before PW.13 and she is one of the eye witnesses to the incident.
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She has reiterated the contents of Ex.P.1 and deposed that on the date of incident, post midnight at around 2.00 am, the accused stabbed the deceased with MO.2 and caused severe bleeding injuries to the deceased. Thereafter, they shifted the deceased to the Government Hospital at Kumta subsequently to Wenlock Hospital mangalore where the doctor declared that the deceased was brought dead. Accordingly, she lodged the Complaint before the jurisdictional police as per Ex.P.1 against the Accused/Appellant.
PW.2-Mohammad Jakriya is the owner of the house where PW.5 said to have been residing. He stated that, hearing the hue and cry of the PW.1 and 5, he rushed to the house of the P.W.5, PW.5 informed him about the incident and he saw the deceased laying in the puddle of blood and the accused in the room. According to the prosecution, this witness is the derived as res-gestae witness.
PW.3-Krishna Narayan NaiK is the witness for the recovery of clothes of the accused under EX.P6 Mahazar as M.O.7 and 8. This witness also is a punch witness for the recovery of the weapon i.e.,MO.2, which is said to have been
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CRL.A No. 100322 of 2019used by the accused to commit the crime and seized under the Mahazar at Ex.P.7.
Further, he is also punch witness to the Mahazar at Ex.P.11, wherein the portion of Scissor was recovered as per MO.9.
PW-4-Krishnanda is a witness for inquest panchanama carried on the dead body of the deceased as per Ex.P.12. He is also the punch witness to the seizure mahazar at Ex.P13 wherein, the cloths of the deceased were seized as per M.O. 3 to 6.
PW.5-Mahadevi Naik is the mother of the deceased who is the eye witness to the incident and she reiterated the evidence of PW1/complainant and stated that on the fateful day the accused committed the crime by stabbing her daughter with M.O.2. Thereafter, they shifted the injured to the hospital where the doctors declared her as brought dead.
PW.6 Venkatesh Mahadev NaiK is the son of PW.5 and the younger brother of deceased and he deposed about the strained matrimonial relationship of diseased and accused and he is also hearsay witness to the incident.
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CRL.A No. 100322 of 2019PW.7-Ganapathi Naik, is a neighbor of PW.5, he is a hearsay witness who shifted the injured to the hospital.
PW.8-Veeresh Fakirappa Sammasagi, is the husband of PW.1. He deposed that the accused had suspected the fidelity of his wife and on that ill will he had committed the murder of his wife.
PW.9-Manjunath Vishnu Hegde, the assistant executive engineer who has drawn the sketch of the spot where the incident has taken place as per the Ex.P.23.
PW.10-Rohidas Yeshwant NaiK, the then head constable of the respondent police and he carried the FIR to the magistrate. PW.11-Ratheesh Nagarkar is the then head constable and he has drawn the inquest mahazer on the dead body of the deceased as per Ex.P.12, and he also recorded the statement of the some of the family members during the course of investigation. PW-12-Ravi Thippanna Vaddar, he carried official articles to the examination. PW.13-Shivakumar who registered the case in Crime No.93/2014 against the accused as per Ex.P.25 based on the complaint lodged by PW1
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CRL.A No. 100322 of 2019as per Ex.P.1 subsequently, he handed over the investigation to PW.15.
PW.14- Mahesh Shetty, the Doctor of Kumta Government Hospital, where the injured was initially shifted for the first time and he advised the family members to take her for better treatment at Wenlock Hospital, Mangalore. Further, he has also issued a certificate as per Ex.P.26.
PW.15-Dr. Prateek Rastogi, he conducted the post- mortem over the dead body and issued the post-mortem report as per Ex.P.28. He has also issued the certificate as per Ex.P.30 in respect of the MO.2 and opined that the injuries found in the post-mortem report of the deceased could be caused by MO.2 and 9.
PW.16 Srikanth, the then CPI the investigation officer who conducted the investigation and laid the chargesheet against the accused for the aforesaid offense.
15. On careful, perusal of the above evidences, in order to prove the homicidal death of the deceased, the prosecution has relied on the evidence of PW.15-the doctor and Ex.P.28 i.e., the post-mortem report. On perusal of the post-mortem
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CRL.A No. 100322 of 2019report at PW.15, the doctor has opined that, the death is due to head injury sustained as a result of "sharp force trauma" and he also has opined that the injuries found on the dead body of the deceased are ante-mortem in nature. The said evidence of the doctor is supported by the evidence of PW.11, who has drawn the inquest mahazar as per Ex.P.12, so also the evidence of PW.4 who is the witness for Ex.P.12.
16. Hence, on conjoint reading of the evidences of Doctor/PW.14, PW.11 and 4, the prosecution proved the homicidal death of the deceased beyond reasonable doubt. Nevertheless, the counsel for the appellant not seriously disputed the said aspect.
17. To connect the appellant/accused to the homicidal death of the deceased, the prosecution mainly relied on the evidence of PW1-the complainant who is the sister of the deceased and PW.5-who is the mother of the deceased.
18. On careful perusal of the evidence tendered by PW.1 and 5, PW.1 has categorically deposed in her evidence that since from the marriage, the relationship of the accused and deceased were on cross-roads as the accused harassed the
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CRL.A No. 100322 of 2019deceased physically and mentally by suspecting her fidelity. That on the date of incident, the accused and the deceased had stayed in her house and the accused and deceased both slept in the middle room of her house. She has further narrated that at about 2-00 am, she heard the sound of deceased screaming from pain and she rushed to the room and she being wretched, witnessed that accused was stabbing the deceased and there were also no clothes on the body of the deceased and accused. Though herself and PW.5 made an attempt to rescue the deceased, the accused in a rage also stabbed the PW.5 with the same scissor which is used for the assault made to the deceased.
19. She further narrates that, subsequently, the owner of the house, PW.2 came there and at that time the accused was in the spot and PW.2 stopped him and handed over to the police later. Subsequently, they shifted the deceased initially to the Government Hospital of Kumta and to Wenlock Hospital Mangalore, where the deceased was declared as brought dead.
20. Though the learned counsel, cross-examined this witness, nothing fruitful was elicited from the mouth of this witness to disbelieve her version. Further, the evidence of this
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CRL.A No. 100322 of 2019witness is corroborates with the evidence of PW.5, who is none other than the mother of the deceased and eye witness to the incident. On perusal of the evidence of PW.5, She has also categorically deposed that on the fateful day, the accused stayed in her house for the midnight and post midnight, he built up a quarrel with the deceased and stabbed her with M.O.2. she reiterating the versions of PW1 narrates that when she made an attempt to rescue the deceased, the accused stabbed her with the scissor and caused bleeding injuries. To substantiate the said aspect, this witness has also been treated by PW.14/the Doctor of the Government Hospital of Kumta who issued wound certificate as per Ex.P.27. The said aspect was not seriously disputed by the defence counsel during the course of cross-examination. Hence, on cogent reading of evidence of PW.1 and 5, their testimonies are competent and trustworthy to believe.
21. Nevertheless, the prosecution also proved the recovery of MO.2 i.e., the scissor, which is said to have been used by the accused for the commission of the crime under Ex.P7. To prove the same, the prosecution examined PW.3, who supported the case and deposed that based on the
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CRL.A No. 100322 of 2019voluntary statement given by the accused, the weapons involved in the crime was recovered by the police under Ex.P.7. PW.3 has also identified his signature on Ex.P.7. He has also identified his signature at Ex.P.11 seizure mahazar wherein piece of scissor i.e., M.O.9 was seized from the head of the deceased.
22. Further, the certificate issued by PW 15/the doctor who conducted the post-martem, opined that the injuries found on the dead body of the deceased would be caused by MO.2 and 9. Under these circumstances, the evidence of PW.3 that is the recovery of MO.2 under Ex.P.7 place a vital role and prosecution has sternly proved the said circumstances.
23. Further, as per the evidence of PW1,6 and8 who are the brother-in-law and sister-in-law of the deceased, they are the hearsay witnesses to the prosecution case and they categorically deposed about the strained relationship between the accused and deceased.
24. It is relevant to mention at this juncture at the cost of repetition that, PW.2 is the owner of the house of PW5 where the alleged incident said to have been taken place, has deposed
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CRL.A No. 100322 of 2019that, he in the midst of the night heard a screaming voice in the house of the PW.5 and immediately after such screaming, he rushed to the house of the PW5 and at that time, he has witnessed the deceased who was laying on the pool of blood and the accused was also present at the scene of occurrence and subsequently, he was made known about the incident by PW1 and 5 and he further deposes that he has stopped the accused from fleeing away from the scene of crime. In order to substantiate the credibility of the evidence tendered by the PW.5, we deem it necessary to refer to the decision of the Hon'ble Supreme Court in Balu Sudam khalde & Another Vs State of Maharashtra reported in 2023 SCC OnLine SC 355, wherein, the Hon'ble Supreme Court in paragraph Nos. 48 and 49 has held as under-
" 48. In the case of Sukhar v. State of U.P. reported in (1999) 9 SCC 507, this Court noticed the position of law with regard to Sections 6 & 7 reply of the Act 1872 thus:--
"6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately
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thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus:--
"Under the present exception [to hearsay] an utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car- brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided, it is near enough in time to allow the assumption that the exciting influence continued."
7. Sarkar on Evidence (Fifteenth Edition) summaries the law relating to applicability of Section 6 of the Act 1872 thus:--
"1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.
2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.
3. The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and bystanders. In conspiracy, riot, the declarations of all concerned in the common object are admissible.
4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated.""
49. The rule embodied in Section 6 is usually known as the rule of res gestae. What it means is that a fact which,
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CRL.A No. 100322 of 2019though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence.
(Emphasis supplied by Us)
25. Hence, if the evidence of PW.5 is gingerly scrutinized in view of the principles and findings laid down by the Hon'ble Apex Court, PW.5 has clearly deposed in his evidence as stated supra, he witnessed the incident soon after the commission of the crime by the accused. Under the circumstances, on perusal of the evidence of the PW.1, PW.5 and PW2, we find conclusive to say that that the same corroborates to each other. Though the leaned defence council has cross-examined these witnesses at length nothing worthwhile has been elicited from these witnesses to disbelieve their versions.
26. Further, the investigation Officer-PW 16 who led the charge sheet. His evidence also corroborates with evidence of all the material witnesses including ocular witnesses as discussed supra. Though, the learned counsel for the appellant would contend that there are contradictions and omissions in
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CRL.A No. 100322 of 2019the evidence of PW1 and 5, the same in our considered view does not inspire the case of the accused but come to the aid of the prosecution case. When there are clinching evidence available on record to prove the charges leveled against the accused, the accused failed to put forward able defence in this case.
27. In his Section. 313 CrPC Statement, he stated that some unknown 4 to 5 persons entered the house of the deceased and committed the alleged incident. The law on the point is emphasized by the Hon'ble Apex Court in the case of State of H.P. v. Raj Kumar, reported in (2018) 2 SCC 69, wherein the Hon'ble Apex Court in paragraph No.17 has held as under -
"17. As pointed out by the Sessions Judge, deceased Meena Devi was last seen alive in the company of accused Raj Kumar and the accused did not satisfactorily explain the missing of deceased Meena Devi and the same is a strong militating circumstance against the accused. Meena Devi who was residing in the same house with the accused and was last seen alive with the accused, it is for him to explain how the deceased died. The accused has no reasonable explanation as to how the body of Meena Devi was found hanging from the tree. As held in Kashi Ram case [State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 : (2007) 1 SCC (Cri) 688] , it is for the accused to explain as to what happened to the deceased. If the accused does not throw light on the fact which is within his knowledge, his failure to offer
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any explanation would be a strong militating circumstance against him."
(Emphasis supplied by Us) In the appeal on hand, though the accused has pleaded that strangers have attacked the deceased who intervened when they tried to attack the accused, he has failed to substantiate the same with evidences. He has also not chosen to lead any evidence to substantiate his defence as we are not inclined with the defence of the accused and are fully in congruence with the findings recorded by the learned Sessions Judge in this regard.
28. With respect to the other contentions advanced by the learned counsel for the appellant would narrow it to the argument that the PW1 and 5 being the close relatives of the deceased who are foremost interested witnesses and Trial Court has erred in believing their version and has rushed to convict the accused is concerned, we deem it appropriate to refer to the decision of the Hon'ble Apex court in Jodhan v. State of M.P., reported in (2015) 11 SCC 52, articulating the principles to rely on the witness proffered by the interested witnesses, has held in paragraph No. 22 as under-
"22. As per the evidence brought on record, the incident had taken place near the house of the deceased and the
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witnesses. The criticism that has been advanced against these witnesses is to the effect that they are interested witnesses and hence, their version does not deserve acceptance is sans merit, for they are the witnesses who were there at the spot and sustained injuries. They are close relatives and they have stood firm despite incisive cross-examination. There can be no cavil over the proposition that when the witnesses are related and interested, their testimony should be closely scrutinised, but as we find, nothing has been elicited in the cross- examination to discredit their version. On a studied scrutiny of their evidence, it can be said with certitude that they have lent support to each other's version in all material particulars. There are some minor contradictions and omissions which have been emphasised by the learned trial Judge. The High Court has treated the said discrepancies and the minor contradictions as natural. That apart, their evidence also find support from the medical evidence and the initial allegations made in the FIR. The High Court has opined that there is no inconsistency in their version and on a perusal of the said evidence, we find there is absolutely no inconsistency which will compel a court of law to discard their version. The learned trial Judge, as is evincible, has attached immense emphasis to such omissions and contradictions which, according to the High Court, with which we concur, are absolutely insignificant and trivial. It is also perceived that the learned trial Judge has given notable stress on the fact that the accused persons and the informant were on inimical terms due to non-voting by the informant's party in their favour. In our considered opinion, in the present case, the same cannot be a ground for not placing reliance on the eyewitnesses who have supported the prosecution version."
(Emphasis supplied by Us) Hence, when evidence of PW1 and 5 are looked into keeping in view the admissible principles as enunciated by the Hon'ble Apex Court, then as stated supra, it can be clearly
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CRL.A No. 100322 of 2019observed that PW.1 and 5 have narrated the same versions in their evidences and their versions are also fortified by the res- gestae witness PW. 2 and the evidence trotted out has also withstood the rigors of cross-examination and the defence has failed to elucidate contradictions in the evidences of PW.1 and
5. Such being the scenario, we are of the view that the arguments laid by the defence is just a nitpick or a cavil and cannot be considered as reliable one.
29. In view of the discussion made hereinabove, we are in agreement with the findings recorded by the Trial Court that the appellant/accused and no other personswas the perpetrator who had inflicted the injuries on the deceased.
30. As far as the alternative submission made by the learned counsel for the accused that this case would fall under exception I to section 300 of IPC is concerned, admittedly, the accused being the husband of the deceased was suffering from schizophrenia, as suggested by the learned counsel for the accused before this Court and the Trial Court further the said aspect is also forthcoming in the decision passed by the learned Trial Judge. Moreover, the incident was caused post midnight in spur of moment. The weapon said to have been used by the
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CRL.A No. 100322 of 2019accused is the scissor which was readily available in the house of the deceased. In such circumstances, as to the preparation, intention and a motive on the part of the accused is concerned on perusal of the evidence available on record, it could be seen the accused and deceased where being the husband and wife who have slept in the same room and at the time of incident they both were seen without clothes. Hence, in such circumstances, it cannot be derived at the accused has assaulted the deceased with the intention to commit her murder. Per contra, due to the matrimonial aspects a sudden quarrel might have taken place which has resulted in a sudden loss of self-control and in spur of moment the incident said to have been caused.
31. The Hon'ble Apex court in the case of Dauvaram Nirmalkar v. State of Chhattisgarh, reported in 2022 SCC OnLine SC 955 by following the view expressed in K.M. Nanavati v. State of Maharashtra reported in 1962 Supp (1) SCR 567 observed in paragraph Nos. 9 to 17 as under -
" 9. 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
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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.
10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra, 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, 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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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. 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 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 Ashworth in the following words:
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"[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 Pradesh 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 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 Pradesh.
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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.
(Emphasis supplied by Us)
32. Moreover, learned Sessions Judge has convicted the accused/appellant with imprisonment for life till death for the offence punishable under Section 302 IPC and same has been held to be outside the jurisdiction of the learned Sessions Judge by various decisions of the Hon'ble Apex court. Further, the Co- ordinate Bench of this Court in Shekhar Vs State of Karnataka in Crl.A.No.200040/2019 decided on 13.10.2023 relying on the judgment of the Constitutional
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CRL.A No. 100322 of 2019Bench of the Hon'ble Apex court in UOI vs Sriaran @ Murugan & Ors reported in (2016) 7 SCC 1 has held in paragraph Nos.41 and 42 as under -
"41. Insofar the sentence is concerned the trial Court has imposed a sentence directing him to undergo imprisonment i.e., throughout his life. In our considered view, the said sentence is not sustainable under law, for the reason that, the Hon'ble Apex Court in the case of Union of India vs. V.Sriharan Alias Murugan and others reported in 2016 (7) SCC 1 has held that awarding of said special category sentence, in substitution of death sentence, that is, sentence barring remission under Cr.PC for specified term beyond 14 years, or life imprisonment barring remission for rest of life, held (per majority), is valid - Clarified, however power under Arts. 72 and 161, which is not the same as the statutory power of remission, is not affected - Award of non-remittable specified sentence or life imprisonment barring remission for rest of life, held, not violative of separation of powers - Such special sentence when imposed under substantive provisions of IPC, does not overlap procedural power under Cr.P.C. either - Considering crime situation in India (particularly nexus between hardened criminals and illgotten wealth, and nature of heinous crimes on the rise), delay in disposal of cases, and balancing interest of victims with those of convicts, such special category sentence is necessary. Further held (per majority), such special category sentence can only be imposed by High Court or supreme Court and not by trial court.
42. In such circumstances, the Sessions Court could not have exercised power to impose imprisonment on the accused to suffer imprisonment throughout life for the offence punishable under Section 302 of IPC. Nevertheless, the Hon'ble Apex Court in the case of Dharma Deo Yadav V/s State of Uttara Pradesh, (2014) 5 SCC 509, laid down three tests, namely, Crime test, Criminal test and rarest of rare test. In the present case, both the crime and criminal tests have been satisfied against the accused but, rarest of rare test is
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concerned, the prosecution has failed to prove the same by leading cogent evidence that the crime was committed in a barbaric manner. Hence, the instant case would not fall under the category of rarest of rare case. As such, the punishment awarded by the trial Court imposing imprisonment throughout his life has to be modified to life imprisonment."
(Emphasis supplied by Us) On perusal of the findings recorded hereinabove, if interpreted with the case on hand, as stated supra, the case on had also does not pass the test of rarest of rare cases to award punishment as awarded by the learned Sessions Judge who has wrongly exercised the powers that are not vested under him.
33. Applying the above principle laid down and also the applying the provocation exception, answering the first point raised herein above in negative and second point raised in partly affirmative, consequently, would convert the offence punishable from 302 to 304 Part I of IPC.
34. We have been informed by the learned counsel for the appellant that he has already suffered the incarceration for nine years nine months ie., from 01.04.2014. In the aforesaid circumstances, we are of the considered view that the incarceration period which already undergone by the accused shall be considered as the sentence imposed. In addition, we
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CRL.A No. 100322 of 2019would impose the fine of Rs.25,000/- for the offences punishable under sections 304 Part I of IPC and in default of payment of fine, he shall undergo further simple imprisonment for a period of two months. The assessments made with respect to the offences punishable under section 498A shall stay-in-tact. However, both the sentence shall run concurrently. Accordingly the following -
ORDER
i. Appeal is allowed-in-part.
ii. The judgment and order of sentence dated
06.02.2018 passed in S.C.No. 46/2014, by the Prl. District and sessions Judge, Uttar Kannada, Karwar is modified and the appellant/accused in convicted for the offence punishable under Section 304 Part I of IPC instead of Section 302 of IPC .
iii. The period of already undergone by the Accused/Appellant i.e., 9 years and 9 months is considered as sentence imposed for the offence punishable under Section 304 Part I of IPC with the fine of Rs.25,000/- and in default of
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payment of fine, he shall undergo simple
imprisonment for a period of two months.
iv. If the accused pays the fine amount or
undergoes default sentence, concerned jail
authorities are directed to release the
accused/appellant forthwith, if, he is not needed in any other case.
v. The Legal Services Authority is directed to pay Rs.25,000/- to the learned amicus curiae Sri. Vidyashankar G. Dalawai.
Registry is directed to return the records received from the Trial Court along with the copy of this Order to the learned Sessions Judge, forthwith.
Sd/-
JUDGE Sd/-
JUDGE PJ LIST NO.: 1 SL NO.: 46