Karnataka High Court
Farook So Noorhamed Belagavakar vs The State By Dharwad on 16 July, 2025
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CRL.A No.100326 OF 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF JULY, 2025
PRESENT
THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.100326 OF 2022
BETWEEN:
FAROOK S/O. NOORAHMED BELAGAVKAR,
AGE: 22 YEARS, OCC. DRIVER,
R/O. NEAR ANUPAMA BAR,
JAYANAGAR, DHARWAD-580001.
(NOW IN CENTRAL PRISON, DHARWAD)
...APPELLANT
(BY SRI. T.R. PATIL, ADVOCATE)
AND:
THE STATE BY DHARWAD
SUBURBAN POLICE, DHARWAD,
REPRESENTED BY PUBLIC PROSECUTOR,
Digitally signed
HIGH COURT BUILDING, DHARWAD-580001.
by YASHAVANT
NARAYANKAR
Location: HIGH
COURT OF
...RESPONDENT
YASHAVANT KARNATAKA
NARAYANKAR DHARWAD
BENCH
DHARWAD
(BY SRI. M.B. GUNDWADE, ADDITIONAL SPP)
Date:
2025.07.17
10:45:39 +0530
THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C
1973., PRAYING TO SET ASIDE THE JUDGMENT DATED 07.04.2022
AND SENTENCE DATED 11.04.2022 PASSED BY IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DHARWAD PASSED IN SC
NO.137/2019 SENTENCING LIFE IMPRISONMENT FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC AND TO PAY FINE OF
RS.10,000/- IN DEFAULT OF SIMPLE IMPRISONMENT FOR 3
MONTHS.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT THIS DAY, JUSTICE RAJESH
RAI K, DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
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CRL.A No.100326 OF 2022
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K) This appeal by the convicted accused is directed against the judgment of conviction dated 07.04.2022 and order of sentence dated 11.04.2022 in S.C.No.137/2019 passed by the IV Additional District and Sessions Judge, Dharwad (hereinafter referred to as ' the learned Sessions Judge' for short), whereby the learned Sessions Judge convicted the appellant/accused for offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months.
2. Briefly stated, the facts of the case are as follows:
PW1-Latha Bhimappa Nadagouda i.e., the complainant is the mother of deceased Vikram. The deceased was staying in PG accommodation, situated at Chennabasaveshwar Nagar, 6th cross, Dharwad and attending coaching classes after completing his PUC. During that time, he came into contact with the accused. The deceased and accused were involved in IPL Cricket betting and the deceased had lost a bet and owed a sum of Rs.2,000/- to the accused. Though the accused insisted -3- CRL.A No.100326 OF 2022 the deceased to pay, the deceased failed to do so. Hence, on 14.04.2019 at about 10:30 p.m., the accused along with his friend-PW.4 came near the PG of deceased and called him out at 6th cross, C.B. Nagar. The deceased went to the spot and the accused demanded the said amount. At that time, the deceased gave evasive answer that he would pay the same whenever he had money. Enraged by the same, the accused quarreled with him and took out a knife from his trouser pocket, which he carried along with him and stabbed the deceased on left lower portion of his abdomen. Thereafter, the accused escaped from the said spot along with PW.4. The deceased, who was injured, ran back to his PG and informed PW.5-his roommate about the incident. PW.5 in-turn called his friends-PWs.6 to 9 and all of them shifted the injured to the District Hospital, Dharwad for treatment. After first aid, the injured was shifted to KIMS Hospital, Hubbali. During treatment in the said hospital, PW.5 informed the incident to PW.1-the mother of deceased and she lodged a complaint against the accused on 15.04.2019 at about 09:45 p.m. before the Dharwad Suburban Police as per Ex.P1.
Since the doctors there informed them that few patients were waiting in line for operations, the injured had to wait before he was operated. Therefore, the injured was shifted to Suchirayu -4- CRL.A No.100326 OF 2022 Hospital. On the strength of Ex.P1, PW.24-the Investigation Officer registered FIR in Crime No.61/2019 dated 15.04.2019 for the offence punishable under Section 307 of IPC as per Ex.P43. However, during the course of treatment, the deceased succumbed to the injuries on 16.04.2019 at about 12:20 midnight. As such, PW.24 filed a requisition before the CJ and JMFC, Dharwad to invoke Section 302 of IPC in Crime No.61/2019 and after obtaining permission, Section 302 of IPC invoked against the accused. Subsequently, PW.24 conducted the investigation by drawing the spot mahazar as per Ex.P2, inquest panchanama as per Ex.P36 and arrested the accused, effected the recoveries, recorded the statement of all the witnesses and on obtaining necessary documents from the concerned authorities, laid charge sheet against accused for the offence punishable under Section 302 of IPC before the Committal Court.
3. After committal of the case before the Sessions Court, learned Sessions Judge framed the charges against the accused for the offence 302 of IPC and read over the same to him. The accused denied the charges and claimed to be tried. -5-
CRL.A No.100326 OF 2022
4. To prove the charges leveled against accused, the prosecution examined 24 witnesses as PW.1 to PW.24 and marked 52 documents as Ex.P1 to P52 and identified 11 material objects as M.O.1 to 11. The accused not examined any witnesses on his behalf, however, he marked one document as per Ex.D1.
5. After assessing the oral and documentary evidence, the learned Sessions Judge convicted accused for the offence punishable under Section 302 of IPC and sentenced him as stated supra. The said judgment of conviction and order of sentence is challenged in this appeal.
6. We have heard learned counsel Sri T.R. Patil for the appellant/accused and learned Addl. SPP Sri M.B. Gundawade for the respondent-State. We have also perused the records of the trial Court.
7. The primary contention of the learned counsel for the accused is that the prosecution miserably failed to prove the charges leveled against accused by adducing cogent evidence. In spite of that, the learned Sessions Judge convicted the accused based on surmise and conjecture. As such, the judgment under this appeal suffers from perversity and -6- CRL.A No.100326 OF 2022 illegality. He further contended that, PW.4 is a planted eyewitness to help the prosecution. According to the prosecution, PW4 accompanied the accused to the spot at the time of incident and witnessed the same. However, his statement was recorded after two days i.e., on 16.04.2019. Moreover, after sustaining stab injuries, the deceased returned to his PG and informed the same to PW.5-the roommate and thereafter to PWs.6 to 9 while shifting him to Hospital. However, the deceased did not whisper about the presence of PW.4 at the time of incident with accused. Hence, the presence of PW.4 at the time of incident is very much doubtful and he is a planted witness by the prosecution. Therefore, he contends that the testimony of PW4 cannot be relied to prove the charge against the accused. The learned counsel further contended that PW.5 the roommate of the deceased and PWs.6 to 9 the friends of the deceased are not the eyewitness to the incident. They visited the room of the deceased after the incident and shifted the injured to the Hospital. According to them the deceased informed them about the incident. The said oral declaration/information of deceased cannot be believed for the reason, if the deceased was really in a position to speak then the doctors at Government Hospital or at KIMS Hospital could -7- CRL.A No.100326 OF 2022 have recorded his statement. Further, CW.15 Mr.Nikhil, gave information to the Doctor at KIMS Hospital that the deceased had sustained injuries when an iron rod pierced him. He contends that Exs.P22, Exs.P23, P30 and P31 i.e., case summary sheets of the injured also reveals the history of the injury as "due to rod piercing". In such circumstance, he contends that the evidence PWs.5 to 9 cannot be relied to prove the charge against the accused. He further contended that the prosecution also failed to prove the recovery of knife i.e., M.O.1 at the instance of the accused since the mahazar witness for Ex.P15 i.e., PW.11 did not clearly state the procedure followed by the Police at the time of recovering M.O.1. As such, the recovery is not proved as per the guidelines issued by Hon'ble Apex Court. Additionally, he contended that the prosecution failed to prove the motive for the alleged incident. Accordingly, he prays to allow the appeal by setting aside the impugned judgment.
8. Alternatively the learned counsel contended that the evidence led by the prosecution even if accepted on its face value for the sake of argument, then the act of the accused may fall within Exception 1 to Section 300 of IPC which is punishable under Section 304 Part II of IPC, since the accused -8- CRL.A No.100326 OF 2022 neither had the intention to commit the murder of deceased nor made any preparation to commit the offence. The accused might have brought M.O.1-knife only to threaten the deceased since he failed to pay the bet amount of Rs.2,000/-. At the time of incident, the accused insisted the deceased to pay the bet amount of Rs.2,000/- and the deceased gave him an evasive answer, which provoked the accused and hence was enraged and stabbed the injured once. Further, the deceased died after 2 days of the incident. Therefore, he contends that the act of the accused clearly falls under Exception-I to section 300 of IPC. Accordingly, he prays to modify the sentence, if this Court declines to acquit the accused from the charges.
9. Per contra, the learned Addl. SPP contended that the judgment under this appeal does not suffer from any perversity or illegality since the learned Sessions Judge, examined the evidence and documents in detail and passed a well reasoned judgment which does not call for any interference. He contended that, to prove the guilt of the accused, the prosecution placed evidence of eyewitness-PW.4, the roommate of deceased-PW.5 who was informed by the deceased about the incident immediately and PWs.6 to 9-the friends of the deceased who along with PW.5 shifted the injured -9- CRL.A No.100326 OF 2022 to the Hospital. The deceased informed the act of the accused to all these witnesses. As such, the same has to be treated as a oral dying declaration of the deceased. Further, the prosecution also proved the recovery of M.O.1-knife at the instance of accused under Ex.P4-recovery mahazar. Additionally, he contended that the prosecution also proved the motive for the commission of murder of deceased by the accused i.e., the deceased failing to pay the bet amount of Rs.2,000/- to the accused. In such circumstance, he prays to allow the appeal.
10. Having heard the learned counsel for the respective parties and also on perusing the entire evidence on record including the impugned judgment, the following points arise for our consideration:
1. Whether the judgment under this appeal suffers from any perversity or illegality?
2. Whether the learned Sessions Judge is justified in convicting the appellant/accused for the offence punishable under Section 302 of IPC?
11. To prove the homicidal death of deceased, the prosecution predominantly relied on the evidence of PW.19-the Doctor who conducted the autopsy on the body of deceased and issued post-mortem report as per Ex.P33. On a perusal of
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CRL.A No.100326 OF 2022 Ex.P33, the Doctor gave his opinion about the cause of death as due to "hemorrhagic shock and its complications'. According to him, the injuries are ante-mortem in nature. He also gave an opinion on the weapon used for the commission of crime i.e., M.O.1 as per Ex.P34, which indicated that injury No.2 mentioned in the post-mortem report can be caused by similar type of blades or knife like M.O.1. This opinion of PW.19-Doctor further corroborates the contents of Ex.P36-inquest panchanama conducted on the dead body of the deceased by Investigation Officer-PW.24. He identified two injuries on the dead body of the deceased. PW.20 was also present at the time of conducting inquest panchanama.
12. An argument was advanced by the learned counsel for the appellant that PWs.5 to 9 who shifted the deceased to the Hospital had given history of injury to the Doctor at Govt. Hospital and KIMS Hospital that the deceased sustained injury due to 'rod piercing', and therefore, the prosecution failed to prove the homicidal death of the deceased.
13. We have carefully perused the evidence of PW.17- Doctor of KIMS Hospital, Hubballi wherein he stated that after admitting the injured in the emergency ward, he enquired
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CRL.A No.100326 OF 2022 PWs.5 to 9 about the injury. They revealed that the deceased sustained stab injury. In the evidence of PW.7 he stated that, himself and his friends gave false history of the injuries to PW.17-Doctor as they were told by a senior person at the hospital that if they revealed that the injury was caused in a brawl, then the Doctor may not admit/treat their friend-injured. However, the fact remains that when they were shifting the deceased from Government Hospital Dharwad, they informed PW1 about the incident and she lodged a complaint. Even after informing PW1, when PW5 to PW9 went to KIMS Hospital, they again gave a false history about the injury. It was only at Suchirayu Hospital that the real history of the injury was disclosed. In such circumstance, we are unable to accept the contention raised by the learned counsel for the appellant and in our considered view; the prosecution has proved the homicidal death of deceased beyond reasonable doubt.
14. To connect the accused for the homicidal death of deceased, the prosecution significantly relied on the evidence of PWs.4 to 9. Among these witnesses, PW.4 is the eyewitness to the incident. No doubt, his statement was recorded two days after the incident. However, he stated in his evidence that, after the incident he did not attend his work and was in his
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CRL.A No.100326 OF 2022 house for two days. After the arrest of accused by the Police, the accused revealed the presence of PW4 at the scene of offence and thereafter, the Police recorded his statement. This witness deposed that, on the date of incident when he was at his work place at about 10:30 p.m., the accused took him to CB Nagar and called the deceased to the said place and quarreled with him for the bet amount of Rs.2,000/- and stabbed him with M.O.1-knife and returned from the said place. The presence of this witness is not spoken by the deceased when he informed about the incident to PWs.5 to 9. However, there is no reason for PW.4 to depose falsely against the accused who is his friend. Be that as it may, coming to the evidence of PWs.5 to 9, all these witnesses have unequivocally deposed that, after the incident, the deceased returned to PG and informed PW.5 that the accused stabbed him with knife. PWs.6 to 9 also stated similarly as that of PW.5. Admittedly, all these witnesses shifted the injured to the Hospital in an auto-rickshaw of PW.8. Though a false history of injury was given by them to the Doctor, the said aspect was clarified by the evidence of these witnesses, who apprehended that the deceased would not be admitted if they gave the real history and hence, they gave a false history of injury that it is due to an iron rod piercing the
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CRL.A No.100326 OF 2022 deceased. However later they revealed the truth to Doctor- PW.17 that the injury was caused by accused by stabbing with M.O.1-knife. The evidence of PWs.5 to 9 is consistent and corroborates each other. Though the defence counsel cross- examined these witnesses intensely and extensively, nothing worthwhile was elicited from them to discard their testimony. On a careful scrutiny of evidence of these witnesses, the information/statement given by the deceased to these witnesses about the assault made by accused has to be treated as an oral declaration of the deceased soon after the incident and soon before his death. In such circumstance, we are of the view that the evidence of these witnesses is trustworthy and reliable. The prosecution also proved the motive for the incident. PW.1-the mother of deceased and PW.4-eyewitness have deposed that accused committed murder of deceased, as the deceased owed bet amount of Rs.2,000/- to the accused. Further, the said fact was also stated by deceased to PWs.5 to 9 after the incident. The prosecution also proved the recovery of M.O.1-knife under Ex.P14-seizure mahazar. PW.11 is the witness for the same and deposed that, based on the voluntary statement of accused, he led them to Bharathi Nagar and showed the M.O.1-knife and police recovered the same. In such
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CRL.A No.100326 OF 2022 circumstance, the recovery of M.O.1-knife at the instance of the accused was proved. As stated supra, PW.19-Doctor gave his opinion that the injury sustained by deceased could be caused if assaulted by M.O.1-knife as per Ex.P34. The evidence of all these material witnesses corroborates the testimony of PW.24- Investigation Officer. In such circumstance, the prosecution proved the charge against the accused by placing cogent evidence and believable circumstances. On the other hand, the accused failed to put forth his defence either in his 313 statement or by leading evidence. Hence, in our considered view, the prosecution has proved that the accused committed the offence.
15. Insofar as the sentence imposed by the trial Court, we see from the record that the incident in question was caused in a sudden quarrel between the accused and deceased over demand to pay a sum of Rs.2,000/-, which the deceased had to pay since he had lost a bet. It is the specific evidence of PW.4-eyewitness and PWs.5 to 9-the friends of the deceased, who learnt about the incident through the deceased, that the accused and deceased knew each other and on the date of incident the accused called the deceased out of the PG and picked up a sudden quarrel and stabbed him with knife and left
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CRL.A No.100326 OF 2022 the place. Thereafter, the deceased returned to his room from the place of incident and informed the same to PW.5 and others. In such circumstances, it could be gathered that accused had no such premeditative motive to commit the murder of deceased. Admittedly, the deceased did not die an instantaneous death but he succumbed to the injury two days after the incident in the hospital. According to the Doctor- PW.19, the deceased has sustained a single wound from M.O.1- knife i.e., injury No.2.
16. 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 paragraphs No.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 selfcontrol, 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
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CRL.A No.100326 OF 2022 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 selfcontrol, 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
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CRL.A No.100326 OF 2022 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 selfcontrol 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 selfcontrol. (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
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CRL.A No.100326 OF 2022 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 selfcontrol. 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 selfcontrol, 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...".
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
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CRL.A No.100326 OF 2022 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
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CRL.A No.100326 OF 2022 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:
"[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."
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
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CRL.A No.100326 OF 2022 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 selfcontrol 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.
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 selfcontrol as the appellant had tried to kill
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CRL.A No.100326 OF 2022 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)
17. The Hon'ble Apex Court further held, for clarity, it must be stated that the prosecution must prove the guilt of the accused, i.e., it must establish all the ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden of the accused for proving that the case falls within an Exception. However, to discharge his burden, the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the Court.
18. The law laid down by the Apex Court in the above judgment if applied to the facts and circumstances of this case, the act of the accused squarely falls under Exception 1 to Section 300 of IPC since the accused committed the act without premeditation but in a sudden fight and in the heat of passion and without taking undue advantage or acted in a cruel or
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CRL.A No.100326 OF 2022 unusual manner. Further, the accused had not made any such preparation to commit the offence and he had no such intention to commit murder of deceased.
Section 304 of IPC reads as under:
304. Punishment for culpable homicide not amounting to murder.--
Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
Para I: Punishment-Imprisonment for life, or imprisonment for 10 years and fine-
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CRL.A No.100326 OF 2022 Cognizable-Non-bailable-Triable by Court of Session-Non--Compoundable.
Part II: Punishment-Imprisonment for 10 years, or fine, or both-Cogbizable-Non- bailable-Triable by Court of Session-Non- compoundable.
19. As discussed supra, the evidence available on record established that the accused had no such intention or motive to murder the deceased. Hence, he is liable to be sentenced under Part II of Section 304 of IPC. The sentence provided under Part II of Section 304 of IPC is imprisonment for 10 years, or fine, or both. The learned counsel for the appellant submits that the appellant is in judicial custody for the last 06 years 02 months. Considering the facts and circumstance, we deem it appropriate to impose sentence for a period of eight years for the offence punishable under Section 304 Part II of IPC by imposing a fine of Rs.5,00,000/- to the accused which shall be payable to PW1-the mother of deceased.
20. Accordingly, we answer the point raised above in partly affirmative and proceed to pass the following:
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CRL.A No.100326 OF 2022
ORDER
i. The appeal filed by the
appellant/accused is allowed in part.
ii. The judgment of conviction dated
07.04.2022 and order of sentence
dated 11.04.2022 passed by the IV
Additional District and Sessions Judge, Dharwad in S.C.No.137/2019 is modified.
iii. The accused/appellant is convicted for the offence punishable under Section 304 Part II of IPC. The accused/appellant is sentenced to undergo imprisonment for a period of eight years and to pay fine of Rs.5,00,000/-, in default of payment of fine, to undergo further imprisonment for a period of two years. The accused is entitled for benefit of set off under Section 428 of Cr.P.C.
iv. If the fine amount is deposited by the accused, the learned Sessions Judge is directed to intimate PW1-the mother of the deceased and disburse the same to her as compensation stipulated under Section 357(1) of Cr.P.C on due identification.
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CRL.A No.100326 OF 2022 v. The Registry is directed to send back the trial Court records along with copy of this judgment to the trial Court, forthwith.
SD/-
(R.NATARAJ) JUDGE SD/-
(RAJESH RAI K) JUDGE HKV CT:PA