Karnataka High Court
Bhaskar Rao vs State By Madhugiri Police on 5 July, 2023
Author: K.Somashekar
Bench: K.Somashekar
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CRL.A No. 502 of 2017
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 502 OF 2017
BETWEEN:
BHASKAR RAO,
S/O KESHAV RAO,
AGED 37 YEARS,
OCC: DRIVER,
R/AT DURGA ROAD, MADHUGIRI,
NATIVE PLACE: KORATAGERE-572 120.
...APPELLANT
(BY SRI. CHETHAN.B, ADVOCATE)
AND:
Digitally signed STATE BY MADHUGIRI POLICE,
by VINUTHA M MADHUGIRI, BY S.P.P,
Location: HIGH HIGH COURT,
COURT OF
KARNATAKA BENGALURU-560 001.
...RESPONDENT
(BY SRI. H.S.SHANKAR, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 18.02.2017
PASSED BY THE IV ADDL. DIST. AND SESSIONS JUDGE,
MADHUGIRI IN S.C.NO.5014/2016 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
RAJESH RAI K, J., DELIVERED THE FOLLOWING:
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CRL.A No. 502 of 2017
JUDGMENT
This appeal by the convicted accused is directed against the judgment of conviction and order of sentence dated 18.02.2017 passed in SC No.5014/2016 by the IV Addl. District and Sessions Judge at Madhugiri, wherein the accused is sentenced to undergo life imprisonment and also payment of fine Rs.10,000/- and in default to payment of fine, he shall undergo simple imprisonment for one year for the offence punishable under Section 302 of IPC.
2. The brief facts of the prosecution case is as under:
The accused is the husband of deceased Bhagyamma and was residing in a rented house belonging to CW.23 and he was quarreling with her in respect of money matter and he wanted to take her away from the house and on 08.03.2011 at about 12.00 noon, the accused picked up a quarrel with the deceased in respect of money matter and with an intention to kill the deceased, he poured kerosene over her and lit fire and thereby, killed her. Hence, the father of the deceased Bhagyamma, i.e., PW.2 lodged a complaint before the respondent police as per Ex.P1 and the same was registered in Crime No.29/2011 dated -3- NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 08.03.2011 for the offence punishable under Section 302 of IPC against the accused. Based on the said complaint, the respondent police investigated the matter and thereafter, arrested the accused and recorded his voluntary statement and collected other materials and documents and also recorded the statement of all the witnesses and the Investigation Officer laid the charge sheet against the accused for the offence punishable under Section 302 of IPC, before the Committal Court.
3. On committal of this case to the Sessions Court, the learned Sessions Judge framed the charge against the accused for the offence punishable under Section 302 of IPC and read over the same to accused. However, the accused denied the charges and claimed to be tried.
4. In order to bring home the guilt of the accused, the prosecution in total examined 23 witnesses as PW.1 to PW.23 so also got marked 23 documents as Ex.P.1 to P.23 and 6 material objects i.e., MO.1 to MO.6. After conclusion of the trial, the learned Sessions Judge read over the incriminating portion of the evidence of witnesses to the accused under the provisions of Section 313 of Cr.P.C and the accused denied the -4- NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 same. However, the accused did not choose to examine any witness on his favour and also not produced any documents. The defence of the accused is one of total denial and that of false implication.
5. After hearing the learned counsel for the defence so also the Public Prosecutor and after assessment of the oral and documentary evidence placed, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 of IPC, which is under challenge in this appeal.
6. We have heard Sri.Chethan, learned counsel for the appellant/accused and Sri.Shankar, HCGP for State.
7. Sri. Chethan, learned counsel for the appellant, vehemently contended that, the judgment under appeal suffers from perversity and illegality and the learned Sessions Judge convicted the accused without properly appreciating the evidence available on record which caused great miscarriage of justice to the appellant/accused.
8. He would further contend that, the learned Sessions Judge convicted the accused based on assumption and presumption without properly appreciating the evidence -5- NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 available on record. As such the impugned judgment is liable to be set aside.
9. The learned counsel would further contended that, the prosecution failed to prove the very homicidal death of the deceased, since the doctor who conducted the post mortem of the deceased as per Ex.P11, though opined that the cause of death is due to shock as a result of burn injuries, but the same was caused accidentally. Even the accused also sustained severe injuries and those injuries are reflected in Ex.P12 i.e., Wound certificate, the accused sustained first degree superficial deep burn over his both forearm and thereby, it is clearly that, the accused made his best efforts to save the life of his wife and the burn injures sustained by the deceased was an accidental injuries.
10. He would further submit that, the evidence of the witnesses i.e., PW.2 the father and PW.5 the brother and PW.7 the mother of the deceased are contradictory to each other and the same cannot be relied to convict the accused for the offence charged against him and none of them are eyewitnesses to the incident. Accused and the deceased were -6- NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 only in the said house at the time of incident and all these witnesses are hearsay witnesses and they failed to depose much on the strained relationship of the deceased and the accused. In such circumstances, the prosecution failed to prove the guilt of the accused for the offence charged against him.
11. Hence, the learned counsel submits that the findings of the Court below that the appellant is guilty of the offence of Section 302 of IPC was clearly in error of law. He submitted that altogether, the appellant could at the highest be convicted for the offence culpable homicide not amounting to murder and the provisions of Section 304 Part 1 of the IPC instead of Section 302 if IPC, since the appellant neither had intention to kill his wife nor to cause injury and the deceased died after two days due to burn injuries.
12. He would submit that by taking into consideration the totality of the circumstances, even if the case of prosecution believed for the sake of argument also then the incident had occurred due to sudden provocation by virtue of sudden quarrel took place between the accused and the deceased and therefore, the case on hand comes under the -7- NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 Exception 1 to Section 300 of IPC and utmost, the accused may be punished for the offence under Section 304 Part 1 of IPC.
13. Refuting the above submissions made by the learned counsel for the appellant, Sri. Shankar, the learned HCGP would submit that, the judgment under appeal does not suffers from any perversity or illegality and the learned Special Judge convicted the accused based on the evidence available on record and he thoroughly gone through the evidence of the material witnesses i.e., PWs.1, 5 and 7. He would further contend that the prosecution proved the homicidal death of the deceased by examining the doctor who conducted the autopsy over the dead body of the deceased as per Ex.P11 and the doctor clearly opined that the injuries found in the body of the deceased are anti-mortem in nature and the cause of death is due to shock as a result of burn injuries. Further, the prosecution also relied the inquest report conducted over the dead body as per Ex.P2 and PWs.1, 3, 4, 6 and 7 have clearly deposed about the identification of burn injuries over the dead body. Further, PW.21-Tahsildar was very much present at the time of inquest proceedings, hence on conjoint reading of the Ex.P11 i.e., post-mortem and Ex.P2 the inquest panchanama -8- NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 coupled with the evidence of the doctor who conducted the post-mortem and also PW.21-Tahsildar, the evidence of PWs.2, 5 and 7, the prosecution proved the homicidal death of the deceased. He would further contend that, by perusal of the evidence of PW.2 father, PW.5 brother and PW.7 mother of the deceased, they have categorically deposed about the strained relationship between accused and deceased and after 2 to 3 months from the date of marriage, the accused used to harass the deceased to bring more money from her parental house and the accused belongs to Darzi caste and the deceased belonged to Scheduled Caste and therefore, accused was always creating galata by taking up the issue of the caste of the deceased. PW.2 also categorically deposed that the accused was quarrelling with the deceased on the ground that she was not allowing him to continue his marital relationship with his first wife, and the said aspect is supported by the evidence of PW.5 brother and PW.7 mother. Therefore, the motive for commission of the crime also clearly proved by the evidence of those witnesses.
14. The learned Government Pleader also contended that, the incident occurred in the matrimonial house of the -9- NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 deceased i.e., the house of the accused. Therefore, the burden of proof lies on the accused to explain, if he has not committed the incident, then who else has committed the incident, since the death of the deceased was well within the special knowledge of the accused as contemplated under Section 106 of the Indian Evidence Act. There is no explanation by the accused either in the 313 statement of Cr.P.C. or led any defence evidence to substantiate that aspect. In such circumstances, the Court can infer the presumption contemplated under Section 114 of the Indian Evidence Act, against the accused. As such the learned Government Pleader argues that the prosecution proved the guilt of the accused beyond reasonable doubt for the charges leveled against him. As far as the alternative argument of the counsel for the appellant is concerned, the learned High Court Government Pleader would contend that this case does not fall under the provisions of Section 300 Part 1 which is punishable under Section 304 Part 1 of IPC for the reason that the accused intentionally committed the murder of the deceased by pouring kerosene on her and lit fire on her. In such circumstances, there is no mitigating circumstance to convert/modify the
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NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 sentence of the accused from the offence under Section 302 to 300 Part 1 of the IPC which is punishable under Section 304 Part 1 of IPC. Accordingly he prays to dismiss the appeal.
15. Based on the submission made by both the learned counsel and also perusal of the evidence available on record, the points that would arise for our consideration are:-
1. Whether the judgment under this appeal suffers from any perversity or illegality?
2. Whether the learned Sessions Judge justified in convicting the appellant for the offence punishable under Section 302 of IPC.
16. We have bestowed our anxious consideration on the submissions made by both the learned counsel and also gone through the evidence available on record including the trial Court records. This Court being the Appellate Court, re- appreciation of the entire evidence are very much required.
(i) PW.1-Krishnappa is a witness to the inquest mahazar as per Ex.P2 and also he is a witness for the seizure of MO.1 i.e., burnt cloth piece of the deceased. However, the said witness deposed that he does not have any personal knowledge about the death of the deceased Bhagyamma.
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(ii) PW.2-Ramanna who is none other than the father of the deceased Bhagyamma, who lodged a complaint as per Ex.P1 and he supported the case of the prosecution and he deposed that the accused is none other than the husband of the deceased and they both were residing in the rented house separately and there was frequent quarrels between the accused and deceased since the accused was insisting the deceased to bring more money from her parental house.
(iii) PW.3-Rathnamma is the witness for the inquest panchanama as per Ex.P2 and she identified her signature on Ex.P2. However, this witness deposed that she does not have any personal knowledge about the death of the deceased.
(iv) PW.4-Dhruvakumar is also a witness for inquest mahazar Ex.P2 and he reiterated the version of PW.3.
(v) PW.5-Ramesh is the elder brother of the deceased and he deposed in respect of the strained relationship between the accused and the deceased and he stated that the accused was insisting the deceased to bring more money from her parental house.
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(vi) PW.6-Ravi Kumar is a witness for inquest panchanama as per Ex.P2. However, this witness deposed that he does not know the contents of inquest mahazar.
(vii) PW.7-Puttarangamma is the mother of the deceased. She is also one of the witnesses for the inquest panchanama as per Ex.P2 and she also deposed about the ill- treatment given by the accused to the deceased and said aspect was informed by the deceased to her two months prior to the incident.
(viii) PW.8-Nanjegowda is also a witness for inquest mahazar as per Ex.P2 and deposed that panchayat was held earlier, in respect of the dispute between the accused and the deceased. This witness partly supported to the prosecution case.
(ix) PW.9-Gangadhariah was the neighbor of the accused and deceased and he partly supported the prosecution case. After the incident this witness rushed to the spot and he went inside the house, at that time, accused No.1 was present inside the house and he was unconscious.
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(x) PW.10-Nagaraju who registered, the marriage of the accused and deceased before the Sub-Register Office.
(xi) PW.11-Nythappa is a witness to seizure mahazar as per Ex.P5 i.e., seizure cigar lighter, kerosene can and the burnt cloth pieces of the accused and deceased. This witness supported to the case of the prosecution. However, the defense not cross-examined this witness.
(xii) PW.12-Nagaraju is a witness for Ex.P5 the seizure mahazar and he identified MO.3 to MO.5 and also his signature on Ex.P5.
(xiii) PW.13-Govindaraju is a witness for the register marriage of the accused and the deceased at the Sub-Register Office and he identified the signature on Ex.P6 and Ex.P7.
(xiv) PW.14-Bharath Kumar is a witness for the marriage of the accused and the deceased. He also stated that after the marriage, the panchayat was held in connection with the misunderstanding between the accused and deceased.
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(xv) PWs.15-Sudarshan and PW.16-Ramanjinappa are the witnesses for the register marriage of the accused and deceased.
(xvi) PW.17-Kishore is the employee in the Fire Brigade and along with his team, i.e. CW.19 and 22 rushed to the house of accused and deceased to extinguish the fire on the date of incident. He deposed that the accused was in the bathroom with unconscious condition.
(xvii) PW.18-Archak Guruchannabasavaiah is a priest of Basaveshwara and Harihareshwara Temple who performed the marriage of accused and deceased. However, this witness turned hostile and his statement was marked as Ex.P13.
(xviii) PW.19-Nagaraju is the owner of the house, wherein the accused and deceased were residing. Though he is projected as a circumstantial witness to the incident, but he has turned hostile to the prosecution case.
(xix) PW.20-Seetharamaraj Urs is a hearsay witness, who received direction from PSI about the fire in the house of accused and he went to the spot and he found the deceased
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NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 and accused No.1 in the house and accused was in unconscious condition.
(xx) PW.21-Nagaraja Shetty, Tahsildar, who drawn the inquest mahazar as per Ex.P2.
(xxi) PW.22-Anjappa is the PSI, who received the information about the fire at the house of accused and deceased and later, he sent PW.20 to the spot and he also received the complaint from PW.2 as per Ex.P1 and thereafter, conducted the investigation and recorded the statement of the witnesses and also gave requisition to the Tahsildar to conduct inquest. Thereafter, handed over the investigation to PW.23.
(xxii) PW.23-K.R Chandrashekhar, who carried out major investigation by recording the statement of witnesses and after collecting the material and all the documents, he laid the charge sheet against the accused.
17. On careful perusal of the above evidence, as far as the homicidal death of the deceased was concerned, the prosecution relied on Ex.P11 i.e., the post-mortem report conducted by the doctor and also the inquest panchanama Ex.P2. On perusal of post-mortem report, the doctor gave the
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NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 opinion that the cause of death is due to shock "as a result of burn injuries". He further opined that the injuries are anti- mortem in nature and time since death was 12-24 hours.
18. Apart from that, PW.21-Tahsildar conducted Ex.P2 inquest panchanama in the presence of PWs.1, 2, 4, 6 and 7 and they have identified their signatures on Ex.P2 and deposed to that effect. The doctor clearly opined that the injuries are anti-mortem in nature and the deceased died due to burn injuries. Since the defense counsel not disputed the death of the deceased, as such, in our considered opinion the prosecution proved the homicidal death of the deceased. Once the homicidal death of the deceased is proved, the next aspect that would arise for consideration is that, whether the accused is responsible for the same. On perusal of the material evidence available on record i.e., the evidence of PW.1 i.e., father of the deceased, PW.5 the brother of the deceased and PW.7 the mother of the deceased, on careful reading of their evidence PW.1 deposed before the Court that the accused is none other than the husband of the deceased and they both were residing in the rented house of PW.19-Nagaraju. The said aspect was also not seriously disputed by the accused/defense
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NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 counsel. As far as the strained relationship of the accused and deceased was concerned, PW.1 in his evidence categorically deposed that the accused belongs to Darzi caste and the deceased belonged to Scheduled caste and thereby, the accused was always creating galata by taking up the issue of caste and he further deposed that accused was quarrelling and insisting the deceased to bring more money from her parental house. The said evidence of PW.1 also corroborates with the evidence of PW.5 i.e., the brother of the deceased. He also categorically stated that prior to two months from the date of incident, the deceased informed about the harassment made by the accused to her, in respect of bringing more money from her parental house. Even the mother, PW.7 also deposed in respect of the same and stated that accused was harassing the deceased in the matrimonial home. Hence, the conjoint reading of the evidence of PWs.1, 5 and 7, it could be seen that the accused was harassing the deceased to bring more money from the parental home. The accused not disputed the relationship between him and the deceased and so also the fact that they both were residing in a rented house of PW.19. Such being the case, as per the provisions of Section 106 of Indian
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NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 Evidence Act, the homicidal death of the deceased has to be explained by the accused as to how she sustained the burnt injuries in the matrimonial home. The said aspect is concerned, the accused failed to explain any circumstances that the deceased sustained accidental burn injuries. Per contra, the prosecution proved the homicidal death of the deceased by recovering the cigar lighter-MO.6 and also the kerosene can. Interestingly, the kerosene can was not burnt and it was thrown out from the house and cigar lighter was also found in the house. In such circumstances, inference can be drawn that the accused alone is perpetrator of the crime. The learned counsel for the appellant much argued on the aspect that on perusal of Ex.P10 the spot sketch, which depicts that the dead body was found near to the door of the house and there is every possibility if the accused only set ablaze the deceased, then she would have ran away from the house since the incident caused near to the door of the house, but in our considered view, the contention of the learned counsel cannot be accepted for the reason that, it is the case of prosecution that the accused set her ablaze and poured kerosene on her and set her ablaze. Further, the deceased forcibly pushed by
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NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 the accused inside the bathroom and at that point of time, the accused fell inside the bathroom. However fortunately he survived from the fire. In such circumstances, inference can be drawn that the accused is solely responsible for the burn injuries sustained by the deceased. Further, recovery of MO.1 to MO.6 at the instance of accused has strengthened the case of the prosecution. As rightly contended by the learned High Court Government Pleader, the intention to commission of the crime was that the accused was insisting the deceased to bring more money, which was opposed by the deceased and for that reason, he committed the murder of the deceased by pouring kerosene on her. Hence, by perusal of overall evidence adduced by the prosecution, on the question of involvement of the appellant as the perpetrator of the crime, we are in agreement with the trial Court.
19. The alternative contention of the learned counsel for the appellant that the offence does not fall under the provisions of Section 300 of IPC and the same falls under Exception 1 to Section 300 of IPC. The Section 300 of IPC which reads as under:-
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1. When culpable homicide is not murder-
culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave ad sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisions:-
First - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly - That the provocation is not given by anything done in the lawful exercise of the right of private defence.
2. Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
3. Cuplable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary fro the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
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20. The Hon'ble Apex Court in the case of DAUVARAM NIRMALKAR vs. STATE OF CHHATISGARH reported in AIR 2022 SC 3620 held that, there was a sudden loss of self- control on account of the "slow burn" reaction followed by the final and immediate provocation and if there is a temporary loss of self-control as the accused had tried to kill the deceased, then the offence has to be considered as it was based on a sudden and grave provocation with the loss of self- control. Hence, the conviction has to be converted from Section 302 to Section 304 Part 1 of IPC.
21. In the said judgment by referring the judgment K.M Nanavathi vs. State of Maharashtra 1962, held in paragraphs 10, 11, 12 as under:-
"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
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NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 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.
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
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NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 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."
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
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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 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
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NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim's abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.
22. The Hon'ble Apex Court further held that, it must be stated that the prosecution must prove the guilt of the accused and it must be establish all the 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 his burden, the accused may rely upon the case of the prosecution and evidence adduced by the prosecution in the Court. The case on hand by perusal of the evidence of PWs.2, 5 and 7, though they deposed in their evidence about the strained relationship between accused and deceased, as far as the incident is concerned, none of those witnesses were witnessed. Further, even the owner of the house also turned hostile to the
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NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 prosecution case. Considering the fact that, the accused himself sustained severe burn injuries and the doctor who examined him has issued the wound certificate as per Ex.P12 and on perusal of Ex.P12 depicts that there are 2 injuries sustained by the accused:
1. First degree superficial to deep burn over the both forearm.
2. Hypersymia over the face.
23. In such circumstance, though the incident was caused by the accused, must be on a spur of moment by sudden, loss of self-control since the accused and deceased quarreled for some reason and all of a sudden by losing his self-control, he would have committed the incident. The conduct of the accused reveals that he made an attempt to save the life of his wife i.e., deceased, otherwise the accused would have escaped from the scene of occurrence after setting her ablaze. In such circumstance, the offence which charged against the accused is clearly falls under the category of Exception 1 of Section 300 of IPC which is punishable under Section 304 Part 1 of IPC. It can be gathered that there was a sudden loss of self-control on account of slow burn reaction
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NC: 2023:KHC:23354-DB CRL.A No. 502 of 2017 followed by the final and immediate provocation, there was temporary loss of self-control. Hence, we are of the considered opinion that the appellate caused the death of his wife on sudden and grave provocation by losing his self-control. Hence, the punishment imposed by the trial Court in this regard to be modified for the offence punishable under Section 304 Part I instead of Section 302 of IPC.
Accordingly, we have answered the points raised above and proceed to pass the following:
ORDER i. The criminal appeal is allowed-in-part.
ii. The judgment of conviction and order of sentence passed in S.C.No.5014/2016 dated 18.02.2017 by the IV Additional District and Sessions Judge, Madhugiri, is hereby modified. So far as, the offence punishable under Section 302 of IPC is concerned, the same is converted to Exception 1 of Section 300 of IPC.
Accordingly, the appellant/accused is
convicted for the offence punishable
under Section 304 part I of IPC.
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NC: 2023:KHC:23354-DB
CRL.A No. 502 of 2017
iii. The appellant/accused is sentenced for the period he has already undergone incarceration i.e., for a period of 06 years, 05 months and 06 days and he shall pay a fine of Rs.10,000/- (inclusive of the fine amount which he has already paid/deposited before the trial Court, if any) for the offence punishable under Section 304 part I of IPC and in default, he shall undergo simple imprisonment for a period of one month.
iv. On payment of fine or default
imprisonment, the Jail Authority is
directed to release the appellant/accused, forthwith, if he is not required in any other cases.
Sd/-
JUDGE Sd/-
JUDGE HKV List No.: 1 Sl No.: 6