Karnataka High Court
Vittal Mahantappa Indi vs The State Of Karnataka on 8 January, 2024
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NC: 2024:KHC-D:346-DB
CRL.A No. 100006 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100006 OF 2021 (C)
BETWEEN:
VITTAL MAHANTAPPA INDI
AGE: 72 YEARS, OCC: NIL,
R/O: HINGANI, TQ: INDI,
DIST: VIJAYAPUR.
...APPELLANT
(BY SRI. ASHOK R. KALYANASHETTY, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH BAILHONGAL POLICE STATION,
TQ: BAILHONGAL, DIST: BELAGAVI,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA, DHARWAD.
...RESPONDENT
Digitally signed
by
SHIVAKUMAR
HIREMATH (BY SRI. M.B. GUNDAWADE. ADDL. SPP. ADVOCATE)
Date:
2024.02.20
12:22:28 +0530
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.,
PRAYING TO CALL FOR RECORDS IN S.C.NO.177/2017 ON THE FILE
OF LEARNED I ADDL. DISTRICT AND SESSIONS JUDGE AT BELAGAVI
DATED 10/11/2020 AND ALLOW THE APPEAL SET-ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE DATED 10/11/2020 FOR
OFFENCE PUNISHABLE U/S.302, 307, AND 506 OF IPC AND
U/SEC.30 OF THE ARMS ACT, 1959 AND CONSEQUENTLY ACQUIT
THE APPELLANT FROM ALL THE CHARGES LEVELED AGAINST HIM.
THIS CRIMINAL APPEAL COMING ON FOR HEARING, THIS DAY,
RAJESH RAI K, J., DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:346-DB
CRL.A No. 100006 of 2021
JUDGMENT
This appeal is filed by the convicted accused against the Judgment and order of sentence dated 10.11.2020 passed in SC No.177/2017 by the I Additional District and Sessions Judge, Belagavi, wherein, the learned Sessions Judge convicted the accused/ appellant for the offences punishable under Sections 302, 307 and 506 of IPC and also for the offence punishable under Section 30 of Indian Arms Act, 1959 and directed him to undergo simple imprisonment for life and also sentenced to pay a fine of Rs.20,000/- for the offences punishable under Section 302 of IPC, in default of payment of fine, the accused shall undergo simple imprisonment for 4 months. Further directed, to undergo simple imprisonment for 10 years and also sentenced to pay a fine of Rs.10,000/- for the offence punishable under Section 307 of IPC and in default of payment of fine, the accused shall undergo simple imprisonment for 2 months and shall undergo simple imprisonment for 7 years and also sentenced to pay a fine of Rs.5,000/- for the offence punishable under Section 506 of IPC and in default of payment of fine, the accused shall undergo simple imprisonment for 1 month and to undergo simple -3- NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 imprisonment for 3 months and also sentenced to pay a fine of Rs.1,000/- for the offence punishable under Section 30 of the Indian Arms Act, 1959 and in default of payment of fine, the accused shall undergo simple imprisonment for 1 month.
2. The brief facts of the prosecution case are that:
The appellant/ accused being the father of the deceased and husband of PW.2, had purchased the 'Sumo Grand Car' and the same was sold by his deceased son Earanna and hence, he was frequently asking money with his wife-PW.2, to purchase another vehicle and was also quarrelling frequently with the son-deceased and in this background, on 12.12.2016 the accused came to the house of PW.2 situated at Nayanagar village and at about 9:30 PM, he started quarrelling with his wife, his son and the complainant over purchase of another vehicle and when they collectively tried to persuade him saying "let's see it later, first have the meals..." the accused abused them in filthy language and all of a sudden, he started firing with a revolver which he had carried along with him and when his son objected it loudly, the accused fired at his chest with the revolver and the deceased sustained injuries. When his wife -4- NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 went to save her son, the accused also fired on her left hand and to her left waist. When the complainant rushed towards her mother and brother, the accused also fired over her left hand and caused injuries. In the meanwhile, the deceased succumbed as the blood was oozing out from his chest. Thereafter, the accused threatened his wife and children saying that 'he will kill them one by one' and saying so, he went away from the scene of occurrence. Subsequently, PW.1 and PW.2 were shifted to Government Hospital Bailahongal by the aid of PW.3 and 4. When PW.1 was under treatment, she lodged the complaint against the accused, which was registered in Crime No.400/2016 for the offences punishable under Sections 302, 307, 504 and 506 of IPC and Section 30 of Indian Arms Act, 1959.
3. Based on the complaint lodged by PW.1, PW.16/ PSI of respondent Police registered the case against the accused as stated supra and PW.17/ Investigation Officer has conducted the further investigation by drawing the inquest panchanama, spot mahazar and also arrested the accused and based on the voluntary statement of the accused, recovered the cloths and other material object at the instance of the -5- NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 accused i.e., the weapon which was said to have been used for the commission of the crime. Subsequently, after obtaining the documents from the relevant authorities, he laid the charge sheet against the accused for the aforesaid offence before the committal Court.
4. After committal of the case before the Sessions Court, the learned Sessions Judge framed the charges against the accused/appellant for the offences punishable under Sections 302,307,504 and 506 of IPC and also Section 30 of the Indian Arms Act, 1959. However, the accused/appellant pleaded not guilty and claimed to be tried.
5. In order to prove the charges leveled against the accused/appellant, the prosecution in total examined 17 witnesses as PW.1 to PW.17, so also got marked 70 documents as Ex.P.1 to P.70 and 25 material objects i.e., MO.1 to MO.25.
6. After completion of the prosecution evidence, the learned Sessions Judge read over the incrementing portions of the material witnesses as contemplated under Section 313 of Cr.P.C to the accused. Though, the accused denied the same, neither he chose to examine any witnesses on his behalf nor -6- NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 produced any documents. However, the accused has proffered an oral statement under the provision of Section 313 of Cr.P.C.
7. After the assessment of the oral and documentary evidence produced, the learned Sessions Judge framed the following points for consideration -
(1) Whether the prosecution proves its case all beyond reasonable doubt that on 12.12.2016 at about 9.30 PM. In Nayanagar Village of Bailhongal PS limits, in his house the accused intentionally insulted CW1-Preeti @ Gurusiddamma and CW14-Anusuya by abusing them in a filthy language and thereby given provocation to them, intending or knowing it to be likely that such provocation will cause them to break the public peace. or to commit any other offence and thereby the accused has committed the offence punishable u/s 504 of IPC?
(2) Whether the prosecution further proves its case all beyond reasonable doubt that, on the above said date. time and place, when the accused started firing with the revolver and when his deceased son Earanna objected loudly the same, then the accused fired at his chest with the revolver and then he died of oozing of blood from his chest and thereby, the accused committed the offence punishable u/s 302 of IPC?
(3) Whether the prosecution further proves its case all beyond reasonable doubt that, on the above said date, time and place, the accused did an act of firing over his wife and daughter with revolver and caused bodily Injuries with such intention or knowledge, and under such circumstances that if he by that act caused death, he would be guilty of murder and thereby the accused has committed the offence punishable u/s 307 of IPC?
(4) Whether the prosecution further proves its case all beyond reasonable doubt that on the above said date, time and place, the accused committed the offence of criminal intimidation to his wife and daughter by threatening them of -7- NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 killing one by one and thereby the accused has committed the offence punishable u/s 506 of IPC?
(5) Whether the prosecution further proves its case all beyond reasonable doubt that on the above said date. time and place, the accused contravened the condition of a licence given to a revolver he possessed by killing his son and causing bodily injuries to his wife and daughter and thereby the accused has committed the offence punishable u/s 30 of The Arms Act 1959?
(6) What order?
And based on the evidence the learned Sessions Judge proceeded to answer the point No.1 in the negative, point Nos.2 to 5 in the affirmative and point No.6 as per the final order and convicted the accused for the offences charged against him as stated supra and the said Judgment is challenged under this appeal.
8. We have heard the learned counsel Sri. Ashok Kalyanshetty for the appellant so also the learned Additional State Public Prosecution for the respondent/ State.
9. 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 based on surmises and conjectures and suppositions and speculations, without properly appreciating the evidence on record. He would further contend that on -8- NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 perusal of the evidence deposed by the witnesses before the trial Court, there are much contradictions and omissions in their evidence which goes to the root of the prosecution case. As such, the learned Sessions Judge ought not have convicted the accused for the offences charged against him.
10. He alternatively would contend that, the entire incident has occurred in a spur-of-moment and absolutely there was no such intention, preparation and motive on the part of the accused to commit the murder of the deceased who is none other than the son of the accused.
11. He would further avert that, on perusal of the evidence of PW.1 and PW.2, who are none other than the sister and mother of the deceased, they categorically admitted in their cross-examination that the accused had showered all the love and affection towards them till the date of incident. As such, it would be gathered that the accused had no intention to commit the murder of the deceased. Hence, according to the learned counsel, trial Court has wrongly come to a conclusion that the accused has committed the offence under section 302 of Indian Penal Code instead of exception I to Section 300 of Indian Penal Code which is punishable under Section 304 Part I -9- NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 of Indian Penal Code. In order to buttress his arguments, he placed reliance on the decision of the Co-ordinate Bench of this Court in case of Rajiya Sultan and Others Vs. State of Karnataka in Crl.A. No.474/2015 decided on 23.06.2020.
12. Refuting, learned Additional State Public Prosecutor would contend that, the judgment under appeal does not suffer from any perversity or illegality, the learned Sessions Judge has rightly passed the impugned judgment and order of sentence by appreciating the entire evidence on record and also documents produced before it. There is no reason to interfere with the well reasoned judgment passed by the learned Sessions Judge. He would further contend that, on perusal of evidence of PW.1 and PW2 i.e., the mother and sister (wife and daughter of the accused), they categorically deposed that the accused was residing in a separate house and on the date of incident he came to the house of PW.2 with the revolver, i.e., M.O.14, with an intention to commit murder of the deceased. The accused has committed the crime by firing the bullets towards the deceased, however the first gunshot was accidentally hit to the door and in spite of that, he once again fired on the chest of the deceased and thereby caused his
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 death. The bullets were also fired by him towards PW.2 and subsequently, to PW.1. In such a situation, he would justify and avert that the prosecution proved the charges levelled against the accused beyond all reasonable doubt. He further contends that the arguments advanced by the learned counsel for the appellant that the act caused by the accused, was without any intention and only due to sudden provocation cannot be accepted for the reason that, the accused fired on the deceased and also PWs.1 and 2, in total of four bullet shots. The said aspect was categorically deposed by PWs.1 and 2. Further, the PWs.3 and 4 who came to the spot immediately after the incident, deposed that the accused escaped from the spot of the incident. PW.5 also is an eyewitness to the incident. He also supported the case of the prosecution. Further, the Doctor who conducted autopsy over the dead body clearly deposed that the death was caused due to the gun shot and bullets were recovered from the body of the deceased. As such, learned Additional State Public Prosecutor would contend that the medical evidence corroborates with the ocular evidence and the prosecution proved its case beyond reasonable doubt. Hence, one these grounds he prays for dismissal of the appeal.
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13. Having heard the learned counsel for the appellant and the learned Additional State Public Prosecutor and also on perusal of the entire material on record including the impugned judgment passed by the trial court, the points that would arise for consideration are that:
"i) Whether the judgment under appeal suffers from perversity or illegality?
ii) Whether the learned Sessions Judge is justified in convicting the accused for the offences punishable under Section 302, 307 and 506 of IPC and Section 30 of The Arms Act?
14. Both the above points being interlinked with each other, the same are taken up for consideration together. Further, this court being the appellate Court re-appreciation of evidence is necessary and accordingly, on cursory glance of the evidence of material witnesses:
PW.1-Kumari Preeti @ Gurusiddamma D/o. Vithal Indi is the sister of deceased in this case. She is the eye-witness to the incident and lodged complaint at Ex.P.1. She deposed that her mother is PW.2 and due to matrimonial dispute her mother and father are residing separately along with herself and her
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 brother i.e., the diseased in this case. She further deposed, on the date of incident, the accused came to their house at about 7:30 PM and demanded Rs.50,000/- from her mother, for which he quarreled with her and her brother and thereby all of a sudden fired towards the deceased from a revolver which he was possessing. However, the first shot got missed and hit on the door, the next shot hit on the chest of the deceased. Thereafter, the accused fired on her, mother twice, which caused bleeding injuries to her mother and when she made an attempt to rescue her mother, accused also fired on her from which she sustained injuries. The accused thereafter threatened the PW.1 and her mother saying that he will kill them one by one. PW.1 and her mother- PW.2 was admitted at Government Hospital at Bailhongal for the injuries caused by the accused. However, the deceased succumbed to the gunshot injuries. Thereafter, she lodged the complaint as per Ex.P.1. This witness identified the M.O.1 and the clothes of mother at MO.6. She also identified her cloth which she was wearing at the time of incident as per MO.1 to MO.9. The clothes of deceased were identified at MO.12 and MO.13.
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 PW.2-Smt. Anusuya Vithal Indi, the mother of the deceased in this case. She being the injured eye-witness to the incident reiterating the version of PW.1, narrated the entire incident as above. She also identified the revolver which is used for commission of offence as per MO.14. She also identified MOs.1 to 5, 8 to 10, 11 to 13 and 15 to 18.
PW.3-Kum. Sumitra Nagappa Yenagi is the cousin sister of PW.1, she came to the alleged spot of incident hearing the hue and cry of PW.2. At that time, she saw that the deceased was lying on the floor and PW.1 and 2 sustained the gunshot injuries. She also saw that the accused was very much present on the spot and he was holding the revolver in his hand. Thereafter, the accused left the spot by saying that he will take away the life of PW.1 and PW.2 one by one.
PW.4 and PW.5 are the neighbors of PW.1 and PW.2, they visited the spot soon after the incident. They further deposed that the PW.1 and PW.2 informed them that the accused took quarrel with his son and also with PW.1 and PW.2. Thereafter, he fired the bullets on the chest of the deceased and also
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 caused bleeding injuries to PW.1 and PW.2. PW.4 and PW.5 are the hear say witnesses to the incident.
PW.6-Mahadev Basappa Halaki is an eye-witness to the incident who is the neighbor of the house of PW.1, deposed that he had witnessed the incident. According to him on the date of incident at about 9:30 PM, the accused quarreled with his son, wife and daughter and later he fired on the chest of the deceased and also he caused injuries to the PW.1 and PW.2.
PW.7-Manjunath S. Sangolli is a witness for inquest Panchnama drawn at Government Hospital as per Ex.P.17. He identified his signature at Ex.P.17 as also the Mahazar at Ex.P.21. This witness also identified his signature on Ex.P.17 i.e., the seizure Mahazar to Ex.P.15 to P.24.
PW.8-Basavaraj G. Totagi is a witness for seizure of the cloths of the deceased, which he was wearing at the time of commission of crime under Ex.P.22 as per MO.11 to MO.13. He also witnessed the re-recovery of MO.14- revolver, which is used for the commission of the crime under Ex.P.27-seizure panchanama. He is also witness to the seizure of 10 cartridges
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 i.e., MO.25 and the license of the gun as per Ex.P.36 which is in the name of the accused/appellant.
PW.9-Manjunath S. Adaki is a witness for Ex.P.22 i.e., the recovery Mahazar MO.14-the revolver.
PW.10-S.R.Rudrappa Mathad is the Police Constable of Bailhongal Police Station who carried the bloodstained clothes of the deceased from Government Hospital to Police Station i.e., MO.6 to MO.10.
PW.11-Yallappa I. Yanagi is the eye-witness to the incident, according to him, on the date of incident. He visited the spot by hearing the hue and cry of PW.1 and PW.2 thereafter, he witnessed that accused quarreled with the diseased and later he fired on the chest of the diseased and also caused bleeding injuries to PW.1 and 2.
PW.12-Dr. Rajashri Kulkarni pleaded that PW.1 and PW.2 were treated by her and accordingly she has issued wound certificate as per Exs.P.37 and 38. She gave an opinion that the injuries mentioned at Exs.P.37 and 38 could be caused by firing MO.14.
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 PW.13-Shankar Siddappa Kittur, a friend of deceased. according to him, he immediately, after the incident, shifted the PW.1 and PW.2 to the hospital and as per the say of PW.1, wrote the Complaint i.e., Ex.P.1.
PW.14-Dr. Maheshwari V.K, who conducted the autopsy on the dead body of the deceased and issued post-mortem report as per Ex.P.42.
PW.15-Dr.Girish Bhimappa Yadur who treated PW.1 and PW.2 and subsequently issued the wound certificate as per Exs.P.48 and 49.
PW.16-Mallayya Siddayya Mathpati who is the then Police Inspector and he recorded the statement of PW.1 and PW.2 at Government Hospital and received the complaint from PW.1 as per Ex.P.1 and registered the case under Crime No.400/2016 for the offences punishable under Sections 302, 307, 504 and 506 of IPC and Section 30 of the Arms Act, 1959 as per Ex.P.50.
PW.17-Sanganagouda Basappa Biradar is the then Police Inspector who conducted the entire investigation by conducting the inquest Punchnama and has drawn all the Mahazar's and
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 also recorded the statement of the witnesses and obtained the necessary documents from the doctor and the official authorities and thereafter laid the chargesheet against the accused for the aforesaid offences before the competent Court.
15. On cautious glance of evidence deposed by the witnesses before the trial Court in order to prove the homicidal death of the deceased, the prosecution mainly relied upon the evidence of the Doctor who had conducted the autopsy over the dead body of the deceased at Ex.P.15 and his opinion that the death is due to the Shock secondary to perforating injury to left lung, might be due to fire arm. The doctor by considering the nature of the crime and the wounds over the body, has given the opinion. Apart from the said evidence of the doctor, PW.17- Investigation Officer conducted the inquest punchnama over the dead body of the deceased at Ex.P.17 and PW.7 is witness for the same. Nevertheless, the doctor opined that the injuries sustained by the deceased are bullet injuries. Such being the circumstance, we are of the view that the prosecution has proved the homicidal death of the deceased beyond reasonable doubt.
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16. To connect the accused to the homicidal death of the deceased, the prosecution mainly relied on the evidence of PW.1 and PW.2 i.e., sister and mother of deceased, are the injured eye-witness to the alleged incident, who have predominantly deposed about the incident. Further, Pw.1 deposed that PW.13 who is a friend of the deceased wrote the complaint at Government Hospital as per her say before PW.16- PSI. On perusal of Ex.P.1, which also reflects the signature of PW.13. Further, the contents of Ex.P.1 corroborates the evidence of PW.1 and PW.2 nevertheless, both PW.1 and PW.2 being the daughter and wife of accused, narrated the incident in a cogent manner. There is no reason for them to depose falsely against the accused. Admittedly, incident had taken place in the night hours in the house of PW.2. The presence of the accused at the time of the incident was deposed by PW.4, 5, 6 and 11. PW.4 and PW.5 are the neighbors, visited the spot soon after incident, where the accused was holding the M.O.14 in his hand and the deceased was lying on the floor with gunshot injuries, they witnessed that the PW.1 and PW.2 were also sustained gunshot injuries at that time. In such circumstances, these witnesses have to be treated as res-
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 gestae witnesses as per the decision of the Hon'ble Apex Court in the case of Balu Sudam Khalde v. State of Maharashtra, reported in 2023 SCC OnLine SC 355, noticing the position of law with regard to Sections 6 and 7 of Evidence Act in paragraph Nos. 48 and 49 has held as under -
"48. In the case of Sukhar v. State of U.P. reported in (1999) 9 SCC 507, this Court noticed the position of law with regard to Sections 6 & 7 resply of the Act 1872 thus:-
"6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus:-
"Under the present exception [to hearsay] an utterance is by hypothesis, offered as an assertion to evidence the fact
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 asserted (for example that a car-brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided, it is near enough in time to allow the assumption that the exciting influence continued."
7. Sarkar on Evidence (Fifteenth Edition) summaries the law relating to applicability of Section 6 of the Act 1872 thus:-
"1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto: they are not admissible merely because they accompany an act.
Moreover the declarations must relate to and explain the fact they accompany, and not Independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.
2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.
3. The declaration and the act may be by the same person, or they may be by
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 different persons, e.g., the declarations of the victim, assailant and bystanders. In conspiracy, riot, the declarations of all concerned in the common object are admissible.
4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated."
49. The rule embodied in Section 6 is usually known as the rule of res gestae. What it means is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence."
17. Further, the evidence of PW.1 clearly corroborates with the evidence of PW.2 - mother of PW.1. Moreover, PW.2 also identified the MO.14 which is used for commission of the Crime. After the incident, PW.1 and PW.2 got admitted to the Government Hospital at Bailhongal and the Doctor treated the PW.1 and PW.2 and issued the wound certificate at Exs.P.37 and 38. Subsequently, they have taken the higher treatment at District Hospital, Belgaum. PW.15 treated them and issued the
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 wound certificate as per Exs.P.48 and 49. PW.15 also finds that the injury sustained by PW.1 and PW.2 could have been caused by MO.14. Hence, on a collaborative reading of evidence of PW.1 and PW.2 coupled with Ex.P.1, we find no reason to disbelieve the evidence of PW.1 and PW.2 eye-witnesses to the incident. Though, the defence counsel cross-examined the PW.1 and PW.2 at length, except the admission that the accused had no such intention to quarrel with the diseased to take away his life, nothing worthwhile was elicited from the mouth of these witnesses as to the accused has not caused injuries to the deceased.
18. The prosecution also proved the recovery of MO.14
- mortal weapon through the evidence of PW.8 and PW.9, who are the witnesses to the recovery of MO.14 under Ex.P.27- recovery mahazar. Both these witnesses have supported the case of prosecution. PW.4 also identified the revolver at MO.14 before the Court. Nevertheless, the prosecution sent the revolver to the FSL and the said report was marked at Ex.P.47. On careful perusal of Ex.P.47 depicts in the column 'Test Firing' that revolver i.e., MO.14 is in working condition at the time of examination and cartridges in the said revolver-MO.14 are
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 alive. The said cartridge were marked at Exs.P.15 and 16 and it was also elucidated in the report that the range of the revolver- M.O.14 is 50 yards. This opinion of the experts, corroborates with the evidence of PW.1 and PW.2 who deposed about the distance that accused fired the deceased in a distance of 50 yards. Moreover, the license of MO.14 i.e., the revolver stands in the name of accused and the same was seized as per Ex.P.36. In the said circumstances, there is no reason to disbelieve the evidence of PW.1 and PW.2 coupled with the evidence of PW.6 and PW.11.
19. Learned counsel for the appellant also contends that the prosecution totally failed to prove the motive for the alleged incident. According to the learned counsel, the accused being the father of the deceased, there was no reason to commit the murder of his own son. The motive put forth by the prosecution cannot be accepted since there is no cogent evidence placed by the prosecution. This case is totally based on the eye-witness i.e., PW.1 and 2 so also the PW.6 and 11. As per the law laid by the Hon'ble Apex Court in catena of decisions, when the case is based on the evidence of eye- witnesses, the motive does not play any vital role. Accordingly,
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 we are unable to accept the submission made by the learned counsel for the appellant.
20. Admittedly, the incident caused in the house of PW.1 and 2 and accused being the husband of PW.2 and father of deceased and PW.1, were together at the house of PW.2 when the crime occurred, in the absence of any break-in evidence or third party involvement, Section 106 of the Indian Evidence Act get attracted against the accused and establishes beyond doubt that the accused and no other person has caused the gun injury on his son. Hence, on careful perusal of the evidence placed by the prosecution, we are of the considered view that, the question of involvement of the appellant as accused in the present case has been appropriately held by the Session Court. As such, the conviction ordered by the Trial Court against the accused for the offence punishable under Section 307 and 506 of Indian Penal Code and Section 30 of Indian Arms Act, 1959 are hereby affirmed. Accordingly, we answer the point raised i.e., point No.1 in the negative.
21. However, as per the alternative contention put forth by the learned counsel for the appellant that this case does not
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 fall under the provision of Section 302 of IPC and the same squarely falls under Section exception I to Section 300 of Indian Penal Code and the sentence imposed for the offence punishable under Section 307 of Indian Penal Code is concerned, we find it relevant to refer to the provisions of Section 300, 304 of Indian Penal Code-
300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
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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.
22. In the case on hand on perusal of the cross- examination of PW.1, she stated that the accused is a ex- military man. He used to send Rs.3,000/- monthly to PW.2- mother towards her maintenance and he used to shower all the love and affection on PW.1 and 2 till the date of incident. She further deposed that her father had no motive and intention to take away the life of the deceased or causing such injuries to PW.1 and 2 by firing by the revolver which he was possessing. Nevertheless, in the cross-examination of PW.2-the wife of the accused, also categorically admitted that her husband, used to
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 take care the family expenses of herself and her children till the date of incident. Further, at the time of incident, there was no quarrel between herself and her husband in respect of the payment of amount by herself to the accused. Further, the PW.1 and 2 also deposed that the alleged incident is said to have been taken place in a sudden quarrel between the accused and PW.1 and 2 and the deceased. Moreover, the doctor who conducted the autopsy also admitted in his cross- examination that the bullet injuries found on the dead body could be caused by the accidental fire.
23. The Hon'ble Apex court in the case of Dauvaram Nirmalkar v. State of Chhattisgarh, reported in 2022 SCC OnLine SC 955 by following the view expressed in K.M. Nanavati v. State of Maharashtra reported in 1962 Supp (1) SCR 567 observed in paragraph Nos. 9-17 as under -
"9. Exception 1 differs from Exception 4 of Section 300 of the IPC. Exception 1 applies when due to grave and sudden provocation, the offender, deprived of the power of self-control, causes the death of the person who gave the provocation. Exception 1 also applies when the offender, on account of loss of self-control due to grave and sudden 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
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 having taken undue advantage of acting in a cruel and unusual manner. The Explanation to Exception 4 states that in such cases it is immaterial which party gives the provocation or commits the first assault.
10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra, this Court has held that the conditions which have to be satisfied for the exception to be invoked are (a) the deceased must have given provocation to the accused; (b) the provocation must be grave; (c) the provocation must be sudden; (d) the offender, by the reason of the said provocation, should have been deprived of his power of self-control; (e) the offender should have killed the deceased during the continuance of the deprivation of power of self-control; and (f) the offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident. For determining whether or not the provocation had temporarily deprived the offender from the power of self- control, the test to be applied is that of a reasonable man and not that of an unusually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. K.M. Nanavati (supra) succinctly observes:
"84. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision : it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.
85. The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Penal Code, 1860. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
11. K.M. Nanavati (supra), has held that the mental background created by the previous act(s) of the deceased may be taken into consideration in ascertaining whether the subsequent act caused sudden and grave provocation for committing the offence. There can be sustained and continuous provocations over a period of time, albeit in such cases Exception 1 to Section 300 of the IPC applies when preceding the offence, there was a last act, word or gesture in the series of incidents comprising of that conduct, amounting to sudden provocation sufficient for reactive loss of self-control. K.M. Nanavati (supra) quotes the definition of 'provocation' given by Goddard, C.J.; in R. v. Duffy, as:
"...some act or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self- control, rendering the accused so subject to
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 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 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
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.
13. Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused's reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. This has been aptly summarised by Ashworth in the following words:
"[T]he significance of the deceased's final act should be considered by reference to the previous relations between the parties, taking into account any previous incidents which add colour to the final act. This is not to argue that the basic distinction between sudden provoked killings and revenge killings should be blurred, for the lapse of time between the deceased's final act and the accused's retaliation should continue to tell against him. The point is that the significance of the deceased's final act and its effect upon the accused - and indeed the relation of the retaliation to that act - can be neither understood nor evaluated without reference to previous dealings between the parties."
14. Exception 1 to Section 300 recognises that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation.
15. Following the view expressed in K.M. Nanavati (supra), this Court in Budhi Singh v. State of Himachal Pradesh observed that in the test for
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 application of Exception 1 to Section 300 of the IPC, the primary obligation of the court is to examine the circumstances from the point of view of a person of reasonable prudence, if there was such grave and sudden provocation, as to reasonably conclude that a person placed in such circumstances can temporarily lose self- control and commit the offence in the proximity to the time of provocation. A significant observation in Budhi Singh (supra) is that the provocation may be an act or series of acts done by the deceased to the accused resulting in inflicting of the injury. The idea behind this exception is to exclude the acts of violence which are premeditated, and not to deny consideration of circumstances such as prior animosity between the deceased and the accused, arising as a result of incidents in the past and subsequently resulting in sudden and grave provocation. In support of the aforesaid proposition and to convert the conviction from Section 302 to Section 304 Part I of the IPC in Budhi Singh (supra), the Court also relied upon Rampal Singh v. State of Uttar Pradesh.
16. For clarity, it must be stated that the prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court. It is in this context we would refer to the case of the prosecution, which is that the deceased was addicted to alcohol and used to constantly torment, abuse and threaten the appellant. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. There was sudden loss of self-control on account of a 'slow burn' reaction followed by the final and immediate provocation. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, we hold that the acts of provocation on the basis of which the appellant caused the death of his brother, Dashrath Nirmalkar, were both sudden and grave and that there was loss of self-control.
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 (Emphasis supplied by Us)
24. Applying the above principle laid down and also the applying the provocation exception, answering the second point raised hereinabove in partly affirmative, we would convert the sentence from offence punishable under section 302 of Indian Penal Code to 304 Part I of IPC. Further, we also modify the sentence for the offence punishable under Section 307 of Indian Penal Code to period already undergone by the accused instead of sentence imposed by the trial Court.
Accordingly, we proceed to pass the following:
ORDER i. Appeal is allowed-in-part.
ii. The judgment of conviction and order of sentence passed in S.C.No.177/2017 dated 10.11.2020 passed by the I Addl. District & Sessions Judge, Belagavi in so far as the offence punishable under Section 302 of IPC, in respect of accused is converted from Section 302 of IPC to Exception 1 of Section 300 of IPC. Accordingly, he is convicted for the offence punishable under Section 304 Part I of IPC.
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 iii. On the question of sentence, the appellant/accused is sentenced for a period he has already undergone incarceration i.e., for a period of 7 years. The accused/appellant shall also be liable to pay a fine amount of Rs.20,000/- (inclusive of fine amount which he has already deposited before the Trial Court, if any) for the offence punishable under Section 304 Part I of IPC and in default of payment he shall undergo simple imprisonment for a period of 6 months.
iv. The sentence imposed by the Trial Court for the offence punishable under section 307 of IPC is also modified from 10 years simple imprisonment to the period already undergone by the appellant/accused in custody i.e., 7 years. The accused is also liable to pay a fine of Rs.10,000/- for the offence punishable under section 307 of Indian Penal Code and in default of payment, he shall undergo further imprisonment for a period of 02 months.
v. Other punishment/sentence for the offence punishable under section 506 of Indian Penal Code and section 30 of the Indian Arms Act,1959 are concerned shall be kept intact and all sentences shall run concurrently.
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NC: 2024:KHC-D:346-DB CRL.A No. 100006 of 2021 vi. The Chief Superintended of Central Prison, Hindalagaa, Belagavi, is hereby directed to release the appellant/accused on payment of fine or default imprisonment mentioned supra, if he is not required in any other case.
The operative portion of the judgment has been already communicated.
Sd/-
JUDGE Sd/-
JUDGE PJ LIST NO.: 1 SL NO.: 2