Karnataka High Court
The State Of Karnataka By New Town P.S vs Venkat S/O Ramrao And Ors on 12 June, 2024
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CRL.A No.3541 of 2013
C/W CRL.A No.3572 of 2012
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.3541 OF 2013
C/W
CRIMINAL APPEAL NO.3572 OF 2012
IN CRIMINAL APPEAL NO.3541 OF 2013:
BETWEEN:
THE STATE OF KARNATAKA
BY NEW TOWN P.S.,
REPRESENTED BY ITS,
ADDL. STATE PUBLIC PROSECUTOR.
...APPELLANT
Digitally signed by
BASALINGAPPA
SHIVARAJ (BY SRI SIDDALING P. PATIL, ADDL., S.P.P.)
DHUTTARGAON
Location: HIGH
COURT OF
KARNATAKA
AND:
1. VENKAT
S/O RAMRAO,
AGE: 55 YEARS,
CASTE: MARATHA,
OCC: OWNER OF CLASSIC DHABA,
R/O: SHIVNAGAR, BIDAR.
2. BHIMRAO
S/O RAMRAO BIRADAR,
AGE: 37 YEARS,
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CRL.A No.3541 of 2013
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CASTE: MARATHA,
OCC: AGRICULTURE,
R/O:NELWAD,
TQ: BKLLHALKI.
3. KRISHNA
S/O RAMRAO BIRADAR,
AGE: 30 YEARS,
CASTE: MARATHA,
OCC: STUDENT,
R/O: SHIVNAGAR, BIDAR.
4. GURUNATH
S/O KASHINATH,
AGE: 30 YEARS,
CASTE: HARIJAN,
OCC: COOK IN CLASSIC DHABA,
SHIVNAGAR, R/O: CHIDRI, BIDAR.
...RESPONDENTS
(BY SRI SANJAY KULKARNI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING TO, GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER DATED 07.03.2012 PASSED IN
S.C.NO.73/2007 BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, BIDAR, THEREBY ACQUITTING THE ACCUSED /
RESPONDENTS FOR THE OFFENCE UNDER SECTIONS 307, 353
AND 302 READ WITH SEC. 34 OF I.P.C., AND SECTION 27(1)
OF ARMS ACT; SET ASIDE THE JUDGMENT AND ORDER DATED
07.03.2012 PASSED IN S.C.NO.73/2007 BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, BIDAR AND CONVICT ALL
THE ACCUSED - RESPONDENTS FOR OFFENCE UNDER
SECTIONS 307, 353 AND 302 READ WITH SECTION 34 OF
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CRL.A No.3541 of 2013
C/W CRL.A No.3572 of 2012
I.P.C. AND SECTION 27(1) OF ARMS ACT INSTEAD OF
OFFENCE PUNISHABLE UNDER SECTION 304-I READ WITH
SECTION 34 OF I.P.C.; CONVICT AND SENTENCE ALL THE
ACCUSED / RESPONDENTS FOR THE OFFENCES UNDER
SECTIONS 307, 353 AND 302 READ WITH SECTION 34 OF
I.P.C. AND SECTION 27(1) OF ARMS ACT INSTEAD OF
OFFENCE PUNISHABLE UNDER SECTION 304-I READ WITH
SECTION 34 OF I.P.C., IN THE INTEREST OF JUSTICE AND
EQUITY.
IN CRIMINAL APPEAL NO.3572 OF 2012:
BETWEEN:
1. VENKAT
S/O RAMRAO,
AGE: 55 YEARS,
CASTE: MARATHA,
OCC: OWNER CLASSIC DHABA,
R/O: SHIVANAGAR, BIDAR.
2. BHIMRAO
S/O RAMRAO BIRADAR,
AGE: 37 YEARS,
CASTE: MARATHA,
OCC: AGRICULTURE,
R/O:NELWAD,
TQ: BHALKI, BIDAR.
3. KRISHNA
S/O RAMRAO BIRADAR,
AGE: 30 YEARS,
CASTE: MARATHA,
OCC: STUDENT,
R/O: SHIVANAGAR BIDAR.
...APPELLANTS
(BY SRI SANJAY KULKARNI, ADVOCATE)
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CRL.A No.3541 of 2013
C/W CRL.A No.3572 of 2012
AND:
STATE OF KARNATAKA
THE NEW TOWN POLICE STATION BIDAR
THROUGH REPRESENTED BY
PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA - 585 103.
...RESPONDENT
(BY SRI SIDDALING P. PATIL, ADDL., S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
SET ASIDE IMPUGNED JUDGMENT AND ORDER DATED
07.03.2012 PASSED IN S.C.NO.73/2007 ON THE FILE OF THE
COURT OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
AT BIDAR AND FURTHER, ALLOW THIS APPEAL THEREBY
ACQUITTING THE APPELLANTS FROM THE ALLEGED OFFENCES
PUNISHABLE UNDER SECTION 304(1) OF I.P.C. AND PASS
ORDERS, DEEMED FIT UNDER THE CIRCUMSTANCES OF THE
CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE CRIMINAL APPEALS COMING ON FOR FINAL
HEARING THIS DAY, RAJESH RAI K. J., DELIVERED THE
FOLLOWING:
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C/W CRL.A No.3572 of 2012
JUDGMENT
These two appeals are arising out of the judgment passed in S.C.No.73/2007 dated 07.03.2012 by the Principal District and Sessions Judge at Bidar wherein the learned Sessions Judge convicted the accused Nos.1 to 3 for the offence punishable under Section 304(1) r/w Section 34 of IPC by acquitting them for the offences punishable under Sections 302, 307, 353 of IPC and Section 27(1) of Indian Arms Act.
2. The factual matrix of the prosecution case is as follows:
(i) That on 02.02.2007 at about 12.15 p.m., the accused Nos.1 to 4 with a common intention, picked up quarrel with one Vijaykumar Nagmarpalli (now deceased) and his associates namely, P.Ws.1, 2, 4, 6 to 8 and C.W.9 and all the accused persons assaulted said Vijaykumar Nagmarpalli and others and thereby caused bleeding injuries with an intention to take away their life.
Consequently, Vijaykumar Nagmarpalli died as a result of -6- NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 injuries caused by accused persons. The accused also obstructed one Subhash Gajare- PSI-P.W.5 while discharging his duty, who was in uniform and assaulted him and caused injuries.
(ii) It is further averred that accused No.1 fired indiscriminately by using revolver belonging to deceased Vijaykumar Nagmarpalli without licence to possess and operate the fire arm. As such, based on the complaint lodged by one Gundappa as per Ex.P.50, the respondent Police registered the case against the accused for the offences punishable under Sections 143, 147, 148, 504, 307 and 302 r/w Section 149 of IPC so also under Sections 3 r/w Sec. 7 of the Indian Arms Act. Thereafter, investigated the case and laid charge-sheet against the accused persons for the aforesaid offences before the committal Court.
(iii) After committal of the case before the Sessions Court, the learned Sessions Judge framed the charges against the accused for the offences punishable under -7- NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 Sections 302, 307, 353 r/w Section 34 of IPC and also under Section 27 of the Indian Arms Act, charges are read over to the accused and accused pleaded not guilty and claim to be tried.
3. In order to prove the charges leveled against the accused, the prosecution in total examined 41 witnesses as P.Ws.1 to 41 so also got marked 226 documents as Exs.P.1 to 226 and got identified 29 material objects as M.Os.1 to 29. Four documents got marked as Ex.C1 to C4.
4. After completion of the prosecution evidence, the learned Sessions Judge read over the incriminating evidence of material witness to the accused as contemplated under the provisions of Section 313 of Cr.P.C. and the accused denied the same. The accused did not choose to examine any witnesses, but got marked 26 documents as per Exs.D.1 to 26. The defence of the accused is total denial and that of false implication. -8-
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5. After assessment of oral and documentary evidence, the accused No.1 to 3 are acquitted by the Sessions Court for the offences punishable under Sections 302, 307 and 353 r/w Section 34 of IPC and Section 27(1) of Indian Arms Act. However, convicted them for the offence punishable under Section 304(1) r/w Section 34 of IPC and sentenced accused No.1 to undergo simple imprisonment for a period of five years one months fifteen days and to pay a fine of Rs.10,000/- for the offence punishable under Section 304(1) of IPC. In default to pay the fine, he shall undergo further simple imprisonment for a period of one year. Further, accused Nos.2 and 3 are sentenced to undergo simple imprisonment for a period of five years one month and to pay a fine of Rs.5,000/-each for the offence punishable under Section 304(1) of IPC. In default to pay the fine, they shall undergo further simple imprisonment for a period of one year. Aggrieved by the said judgment and order of sentence, the State has preferred criminal appeal in Crl.A.No.3541/2013 to convict the accused for the offence punishable under Section 307, -9- NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 353 and 302 r/W 34 of IPC and Section 27(1) of Arms Act instead of offence punishable under Section 304(1) r/w 34 of IPC whereas the accused Nos.1 to 3 have also preferred appeal in Crl.A.No.3572/2012 praying to set aside the judgment passed by the trial Court and to acquit for the offence punishable under Section 304(1) r/w 34 of IPC.
6. Heard Sri Sanjay Kulkarni, the learned counsel for the accused Nos.1 to 3 in Crl.A.No.3572/2012 so also learned Addl. State Public Prosecutor in Crl.A.No.3541/2013 for the appellant/State.
7. It is the primary contention of the learned counsel for the appellants/accused Nos.1 to 3 in Crl.A.No.3572/2012 that the learned Sessions Judge erred while sentencing the accused Nos.1 to 3 for the offence punishable under Section 304(1) r/w Section 34 of IPC though the prosecution miserably failed to prove the guilt of the accused for the offence punishable under Section 304(1) r/w Section 34 of IPC. According to the learned counsel, the material witnesses including the injured
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 eyewitness i.e., P.Ws.6 to 10 totally turned hostile to the prosecution case. Further, the complainant one Gundappa who set the criminal law into motion was not examined before the trial Court to prove the contents of Ex.P.50 i.e., the complaint. He would further submit that though P.Ws.4 and 5, the injured witnesses have supported the case of the prosecution, there are material contradictions and omissions in their evidence. Their oral testimonies are not corroborated with the medical evidence. As such, the learned Sessions Judge erred while convicting the accused for the offence punishable under Section 304(1) r/w Section 34 of IPC.
8. The learned counsel further contends that, the learned Sessions Judge totally failed to consider the defence put forth by the accused. Admittedly, the incident was occurred in a mob and there was a civil dispute between the accused and the deceased. The deceased himself was the aggressor and there is absolutely no such material placed by the prosecution that the accused Nos.1
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 to 3 have involved in the alleged murder of deceased Vijayakumar. With these submissions, he prays to allow the appeal filed by the accused Nos.1 to 3 i.e., Crl.A.No.3572/2012 and set aside the impugned judgment and order of sentence by dismissing the appeal preferred by the State in Crl.A.No.3541/2013.
9. Refuting the above submission made by the learned counsel for the accused, the learned Addl. State Public Prosecutor appearing for the State would submit as under:
(i) The trial Court erred while convicting the accused for the offence 304(1) of IPC instead of convicting the accused for the offence punishable under Section 302 of IPC and Section 27(1) of Arms Act. He would further contend that the evidence of P.Ws.4, 5, 8, 10, 11 and 41, who are the eyewitnesses to the incident, categorically deposed about the manner in which the accused Nos.1 to 3 committed the murder of the deceased Vijaykumar.
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(ii) He would further contend that P.W.5, the then PSI, who was on duty at the time of incident made all his efforts to pacify the quarrel. However, the accused indiscriminately assaulted him also. Further, the evidence of Doctor corroborates the oral testimonies of the above witnesses. In such circumstance, the prosecution proved the charges leveled against the accused before the trial Court. In spite of that the learned Sessions Judge acquitted the accused for the offences punishable under Sections 302 and 307 of IPC and Section 27(1) of the Indian Arms Act by holding that the incident was caused in a spur of moment by grave and sudden provocation. The eyewitnesses categorically deposed that accused Nos.1 to 3 repeatedly assaulted the deceased with the sword and thereafter, the accused No.1 indiscriminately fired with the revolver to the mob gathered in the spot, in such circumstance conviction for the offence punishable under Section 304(1) r/w Section 34 of IPC is totally misconceived. Accordingly, he prays to allow
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 Crl.A.No.3541/2013 filed by the State and dismiss the appeal filed by the accused in Crl.A.No.3572/2012.
10. Having heard the learned counsel for the parties so also perused the records made available before us including the impugned judgment, the points that arise for our consideration are that:
1) Whether the judgment of conviction and order of sentence under this appeal suffers from any perversity or illegality?
2) Whether the learned Sessions Judge is justified in convicting the accused Nos.1 to 3 for the offence punishable under Section 304(1) r/w Section 34 of IPC by acquitting the accused for the offences punishable under Sections 302, 307, 353 of IPC and also under Section 27(1) of Indian Arms Act?
11. This Court being the Appellate Court, carefully re-appreciated the evidence available on record as under:
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 P.W.1 is the eyewitness to the incident and he turned hostile to the prosecution case; P.W.2 is one of the person sustained injuries while accused No.1 shooting in the mob with the revolver; P.W.3 is the eyewitness to the incident who partially supported the case of the prosecution and stated that accused No.1 was holding a sword in the place of incident; P.W.4 is one more injured witness deposed that he suffered the bullet injury caused by accused No.1 and he further deposed that he identified the accused at the spot stating that the accused No.1 was possessing sword in his hand and other accused were holding dragger and they have assaulted the deceased Vijaykumar and thereafter accused No.1 fired with the revolver indiscriminately towards the mob. P.W.5 is the then PSI of the respondent - Police and according to him, based on the information received on 02.02.2007 at about 12.15 p.m. he went to the spot of incident, there he saw a mob of 200 people and he made an attempt to pacify the quarrel in between mob and during that course, accused Nos.1 to 3 were assaulting the deceased Vijaykumar with
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 sword and dragger and thereafter some persons pelted stone on his head and he sustained severe injury. P.Ws.6 to 10-the injured eyewitnesses to the incident. However, all these witnesses turned hostile to the prosecution case; P.W.11 is the then PSI of Bidar Police Station. He deposed that accused Nos.1 to 4 assaulted deceased and P.W.5; P.W.12 is the ASI who deposed that he reached the spot soon after the incident. However, he stated that he found a mob of 150 to 200 people who were pelting stones and accused No.1 was holding a sword in his hand; P.W.13 - the witness for seizure mahazar of clothes of accused i.e., M.Os.12 to 16 under Ex.P.41. However, this witness also partly turned hostile to the prosecution case. P.W.14 is the co-panch to Ex.P.41. He also turned hostile to the prosecution case; P.W.15 is one more witness for recovery of clothes of the accused No.3 as per M.O.17 under Ex.P.44. However, this witness identified his signature on Ex.P.44 so also on M.O.17.
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 P.Ws.16 and 26 are the witnesses for seizure of recovery of the weapons i.e., M.O.1 to 5 which said to have been used by the accused for commission of the crime under Exs.P.45 to 48. However, both the witnesses have turned hostile to the prosecution case; P.W.17 is the Driver and he is a circumstantial witness. He also turned hostile to the prosecution case. P.W.18 is the Scribe of Ex.P.15. According to him, as per the say of one Gundappa, he has typed the contents of Ex.P.50. P.W.19 is the spot mahazar witness drawn as per Ex.P.51 and the seizure of M.Os.10, 19 and 21. P.W.20 is the Doctor who examined the injured Gundappa i.e., the complainant and one Bharat Kumar - P.W.8 and issued wound certificate as per Exs.P.53 and 54, respectively. The complainant Gundappa is not examined before the trial Court; P.W.21 is the Doctor who conducted autopsy over the dead body of deceased Vijaykumar and issued post mortem report as per Ex.P.57; P.W.22 is one more doctor who examined the injured P.Ws.1 and 4 and issued wound certificate as per Exs.P.59 and 60, respectively. He also examined other
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 two witnesses namely Ramesh and Subhash Gajare and issued wound certificate as per Exs.P.61 and 62. P.W.23 is the ASI who searched the used cartridge in the alleged spot and accordingly, he issued report to that effect. P.W.24 accompanied the Police to shift accused No.3 for further treatment; P.W.25 is the witness who carried the FIR - Ex.P.50 to the jurisdictional Magistrate; P.W.27, the Deputy Commissioner of Police, Bidar before whom P.W.1 sought to give protection to the land bearing Sy.No.101 of Bidar village; P.W.28 is the one more doctor who treated accused No.3 and issued wound certificate as per Ex.P.77. He also gave his opinion as per Ex.P.78; P.W.29 is the witness for seizure of fired cartridges as per M.O.23 under Ex.P.79 mahazar conducted in the Guest House of Guru Nanak. PW.30-the police constable who was taken the photography of the scene of occurrence as per Exs.P81 to
147.
PW.31 is the doctor before whom the deceased was brought for treatment and he declared him as brought dead.
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 PW.32-the witness for inquest panchanama drawn on the dead body of the deceased as per Ex.P.40.
PW.33 is one more doctor who gave his opinion on the weapon-MO.1.
PW.34 is the doctor through whom the FSL report got marked as per Ex.P151.
PW.35 is the Junior Engineer, who drawn the sketch of the incident as per Ex.P152.
PW.36 is a circumstantial witness deposed that he executed a settlement deed between the accused and deceased in respect of the landed property as per Ex.P153.
PW.37 is the Scientific Officer and expert, who examined the revolver and also the fired cartridges and issued a report as per Ex.P154 and the said revolver is marked as MO.5 and also cartridges at MO.23.
PW.38, is the then CPI of the respondent-police who is an eye-witness to the incident. He went to the spot
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 along with PW.5 and stated that at the spot of the incident 200 people were gathered and accused Nos.1 to 3 were there by holding deadly weapons.
PW.39 conducted further investigation in this case and after completion of investigation laid the charge sheet before the committal Court.
PW.40 is the co-pancha for Ex.P79, however turned hostile to the case of the prosecution.
PW.41 is the ASI who accompanied the spot along with PW.38 and PW.5, deposed about the presence of the accused in the said mob by holding deadly weapons. He also shifted the dead body to the Hospital for first aid.
12. On careful perusal of the above evidence, in order to prove the homicidal death of deceased Vijaykumar in this case, the prosecution relied the evidence of PW.21, the Doctor who conducted autopsy over the dead body and issued the post mortem report as per Ex.P57. On perusal of Ex.P.57, the cause of death
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 stated by the doctor is "the death is due to shock and hemorrhage as a result of injuries to vital organs namely Brain, liver and left kidney and also mesentery". Apart from the evidence of PW.21 and Ex.P57, the prosecution also relied the evidence of PWs.10 and 32 and the inquest panchanama conducted over the dead body of deceased as per Ex.P40 drawn by PW.39-the investigating officer. PWs.10 and 32 also identified the injuries over the dead body and their signature on Ex.P40. Hence, on conjoint reading of Ex.P57, the post mortem report and Ex.P40- inquest panchanama so also the evidence of doctor and other evidence for inquest panchanama, in our considered view, the prosecution proved the homicidal death of the deceased beyond reasonable doubt. Nevertheless, the accused have not seriously denied the homicidal death of the deceased.
13. In order to connect the accused to the homicidal death of the deceased, the prosecution has mainly relied on the evidence of PWs.4, 5, 10, 11, 38 and
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 41, who are the eye-witnesses to the alleged incident. Before analyzing the evidence of these witnesses, on perusal of the complaint lodged by one Gundappa as per Ex.P50 on 02.02.2007, the same depicts that himself and his brothers and injured went to the alleged spot on 02.02.2007 in order to vacate the premises occupied by accused No.1 based on the judgment passed by the District Court, Bidar in O.S.No.115/1995. At that time, the accused Nos.2 to 4 abused him and thereafter they assaulted the deceased Vijaykumar with the sword and dragon. Apart from that, the accused No.1 fired the revolver which was possessed by the deceased Vijaykumar indiscriminately on the mob. Though, his complaint is marked through PW.18, the scribe however the complainant has not examined before the trial Court. Hence, on perusal of Ex.P50, it is clear that there is a civil dispute pending between the accused No.1 and deceased in this case and the deceased himself visited the spot by holding revolver to vacate accused No.1 from the said land. It is also not in dispute that the incident was
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 allegedly caused in a mob consisting of 150-200 peoples. On perusal of the evidence of injured eye-witness to the incident, all the witnesses have also categorically deposed that when they reached to the alleged spot of the incident, there were mob of 200 people and accused No.1 fired the revolver on the said mob.
It is the defence of accused that accused No.1 was running a dhaba for about 20 years and it is a valuable property in the heart of the City of Bidar and he had invested 15 to 20 lakhs to run the said dhaba and it was the only source of income for his livelihood as such when invading mob of 200 people armed with weapons, stones attacked dhaba furiously and when accused No.1 suffered damage to his property like breaking flower pots, he sensed danger situation. In order to resist and protest himself and his persons, he made an attempt to escape and save himself. At that time, he used sharp weapons by exercising the right by providing defence. The said private defense of the accused is negated by the learned Sessions
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 Judge. However, as discussed supra it is the admitted case of the prosecution that there was a civil dispute between the accused and deceased and original suit was filed by accused No.1 against the deceased in O.S.No.115/1995 which was dismissed. Against which, the appeal was preferred before the Appellate Court and the said appeal was also dismissed. Against the said order, the appeal was preferred before this Court. In the said Regular Second Appeal, there was an interim order of status-quo passed by this Court. As such, the complainant, the injured and his brothers went to the spot to intimate the order of status-quo to the accused and to vacate the said premises. At that time, all of a sudden the incident was caused and the mob of 200 people gathered there and in the mob there was stone pelting and the incident is said to have be caused in a grave and sudden provocation by deceased who also possessed the revolver.
The Police officials who visited the spot i.e., PWs.5, 11, 38 and 41 also categorically deposed that there were
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 200 people gathered in a mob and the incident was caused and PW.5 sustained injuries due to pelting of stones in the mob. Further, the other injured eyewitnesses are not supported the case of prosecution.
The learned Sessions Judge after discussing in detail and the materials placed before it, came to the conclusion that the act of the accused attracts the provisions of Section 304(1) of IPC since the death of deceased Vijaykumar is caused in a grave and sudden provocation and in a spur of moment. The Hon'ble Apex Court in the case of Dauvaram Nirmalkar vs The State Of Chhattisgarh reported in AIR 2022 SC 3620, held in paragraphs 10 to 13 and 15 which read as under:
"10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra reported in AIR 1962 SC 605, 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
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 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,
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 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.
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
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 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 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."
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 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 reported in [1949] 1 All.E.R. 932, 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
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 subject to passion as to make him or her for the moment not master of his own mind...[I] 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 11 (1949) 1 All.E.R. 932 a sudden temporary loss of self-control which is of the essence of provocation...".
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
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 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
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 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.
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
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 has been aptly summarised by Ashworth reported in 1975 Criminal LR 558-559, and George Mousourakis's elucidation in his paper 'Cumulative Provocation and Partial Defences in English Criminal Law' in the following words:
"The 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."
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 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.
xxxxx.........xxxxxxxx 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
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 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."
14. By applying the law laid down by the Hon'ble Apex Court in the above case to the facts and circumstances of the case, the complainant and his injured
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 brothers and deceased went to the spot i.e., the dhaba of accused No.1 to vacate him from the said spot by virtue of the interim order granted by this Court, by possessing a revolver. Due to which, a sudden quarrel took place in between the accused and deceased. Hence, there must be sudden loss of self-control on account of a 'slow burn' reaction followed by the final and immediate provocation by accused No.1 since he was forced to vacate his dhaba. There was a temporary loss of self-control by accused No.1 and the incident caused in a spur of moment. Hence, we are of the considered view that the trial Judge has rightly appreciated the evidence on record and convicted the accused for the offence punishable under Section 304(1) of IPC, which does not call for any interference.
15. Though the learned Addl. SPP much argued that the prosecution has proved the charges leveled against the accused for the offence punishable under Section 302 of IPC, in our considered view, there is no such cogent and clinching material placed by the prosecution to prove the
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NC: 2024:KHC-K:3816-DB CRL.A No.3541 of 2013 C/W CRL.A No.3572 of 2012 said charges leveled against the accused beyond reasonable doubt. In such circumstances, the appeal filed by the State is liable to be dismissed. Hence, we do not find any good grounds to interfere with the impugned judgment. Accordingly, we answer point No.1 in the negative.
16. Point No.2: We decline to interfere with the impugned judgment and answer in the affirmative. In view of the above discussions, we proceed to pass the following:
ORDER Both the appeals stand dismissed being devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE BL/msr List No.: 1 Sl No.: 2 Ct;Vk