Karnataka High Court
Narayanappa vs State Of Karnataka on 26 June, 2023
Author: K.Somashekar
Bench: K.Somashekar
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CRL.A No. 376 of 2017
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 376 OF 2017
BETWEEN:
1. NARAYANAPPA,
S/O KURINANJAIAH,
AGED ABOUT 53 YEARS,
R/O BANNIKUPPE VILLAGE,
HEBBUR HOBLI,
TUMKUR TALUK,
TUMKUR DISTRICT.
2. VASANTHAMMA,
AGED ABOUT 37 YEARS,
R/O BANNIKUPPE VILLAGE,
HEBBUR HOBLI, TUMKUR TALUK,
Digitally signed TUMKUR DISTRICT.
by VINUTHA M ...APPELLANTS
Location: HIGH (BY SRI. M. SHASHIDHARA, ADVOCATE FOR APPELLANT NO.1
COURT OF APPELLANT NO.2 DELETED V/O/DT: 03.06.2023)
KARNATAKA
AND:
1. STATE OF KARNATAKA,
BY HEBBUR POLICE,
REPRSENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE-560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP)
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CRL.A No. 376 of 2017
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
DATED 8/9.02.2017 PASSED BY THE PRINCIPAL SESSIONS
JUDGE, TUMAKURU IN S.C.NO.85/2014 - CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE P/U/S 302 AND
324 OF IPC AND APPELLANT/ACCUSED NO.2 IS CONVICTED
FOR THE OFFENCE P/U/S 235(2) OF CR.P.C.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, RAJESH RAI.K J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal filed by the convicted accused/appellants is directed against the judgment of conviction and order of sentence dated 08.02.2017 passed in S.C.No.85/2014 by the Principal Sessions Judge at Tumakuru wherein accused No.1 convicted for the offence punishable under Sections 302 and 324 of IPC and directed to undergo imprisonment for a period of four months and to pay a fine of Rs.10,000/- for the offence punishable under Section 324 of IPC and in default to undergo simple imprisonment of one month. Further accused No.1 was directed to undergo life imprisonment along with fine of Rs.25,000/- for the offence punishable under Section 302 of IPC and in default to undergo simple imprisonment for a period of one year. Appellant No.1 in this appeal is accused No.1 and appellant No.2 is accused No.2. However, the appeal against accused No.2 is dismissed as withdrawn.
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2. The brief facts of the prosecution case are that, there was some civil dispute pending between accused No.1/appellant No.1 herein and his brother. In that regard, he requested the complainant i.e., PW.1 and his family members to give evidence in his favour before the Court. But, the complainant and his family members refused for the same and all along, accused No.1 was insisting on that regard and as such, they have submitted a representation to the police on that regard. It is further alleged that on 11.02.2014 in the evening hours at about 7.00 p.m., when the complainant i.e., PW.1-Krishnappa, PW.2-Made Hanumakka and the deceased in this case were passing in front of the house of accused No.1 in Bannikuppe village, within the jurisdiction of Hebbu police station, at that time, accused No.1 picked up quarrel with them alleging that they did not heed to his request to give evidence and on the contrary, they complained against him to the police. Hence, accused No.1 all of a sudden assaulted Mohankumar i.e., deceased by club on his head causing bleeding injuries. When the complainant-PW.1 was about to attend the injured Mohankumar, accused No.1 again attempted on the life of PW.1-Krishnappa by piercing a javelin on his right shoulder -4- NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 causing bleeding injuries. It is the further case of the prosecution that accused No.2 (not before this Court) has kicked PW.2-Made Hanumakka on her stomach and also assaulted by stone on her hand, stomach and back causing simple hurt to her. The accused have also abused PW.1- Krishnappa, PW.2-Made Hanumakka and Mohankumar in filthy language so as to provoke them to break public peace and criminally intimidated them. While Mohankumar was bleeding profusely, the persons, gathered at the spot, shifted him to the District Hospital, Tumakuru and after first-aid, he was shifted to NIMHANS, Bengaluru. However, without responding to the treatment, he succumbed to the injuries while undergoing treatment at NIMHANS Hospital on 14.02.2014 at about 6.00 p.m. i.e. after lapse of 4 days. The police visited the Government Hospital, Tumakuru when PW.1 was under
treatment and recorded his statement as a complaint and registered the FIR as stated supra and subsequently, after the death of Mohankumar, the offence under Section 302 of IPC came to be incorporated. Thereafter, the Investigating Officer conducted the investigation by visiting the spot, drew up the mahazar, apprehended the accused and by recording the confession statement, recovery of the weapons has been made -5- NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 at the instance of the accused, which are said to have been used for the commission of the crime and after collecting necessary documents and other evidence, laid the charge sheet against the accused persons for the aforesaid offences before the committal Court.
3. After committal of the case to the Sessions Court, after securing the presence of the accused, the learned Sessions Judge framed the charges for the offence punishable under Sections 324, 307, 302, 504 and 506 r/w Section 34 of IPC. However, the accused pleaded not guilty for the charges levelled against them and claimed to be tried.
4. In order to bring home the guilt of the accused for the charges levelled against them, the prosecution examined in total 18 witnesses i.e., PW.1 to PW.18 and 16 documents as per Exs.P1 to P16 and also got marked 9 material objects as MO.1 to MO.9. However, the accused neither examined any witness nor produced any documents in their favour. After completion of the trial, learned Sessions Judge recorded statements under Section 313 of Cr.P.C. wherein, the incriminating portion of the evidence read over to the accused -6- NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 and the accused denied the same. The defence of the accused is one of total denial and that of false implication.
5. After hearing the learned counsel appearing on both the side and on assessment of the oral as well as documentary evidence available on record, the learned Sessions Judge convicted the accused for the aforesaid offences charged against them. The said judgment is challenged under this appeal.
6. We have heard the arguments of Sri M.Shashidhara, learned counsel for accused No.1 and also Sri Vijaykumar Majage, learned Additional SPP for the respondent-State and perused the records i.e., the impugned judgment and the records secured from the trial Court.
7. Sri M.Shashidhara, learned counsel for accused No.1, vehemently, contended that the judgment under appeal suffers from perversity and illegality and the learned Sessions Judge convicted the accused for the offences as stated supra without considering the evidence and material available on record. As such, the judgment under challenge in this appeal is liable to be set aside. He would contend that the prosecution -7- NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 failed to prove the very homicidal death of the deceased since the doctor, who conducted the autopsy over the dead body, is not examined by the prosecution. He would further contend that there are much contradictions and omissions in the evidence of the injured witnesses i.e., PW.1 and PW.2 so also the other eyewitnesses i.e., PW.3 to PW.5. He would further contend that PW.5 is an eyewitness, who partially turned hostile to the prosecution case. Learned counsel would further contend that the prosecution totally failed to prove the recovery of the weapons, which are said to have been used for the commission of the crime. He would further contend that the eyewitness did not restrain the accused while attacking the deceased. Hence, their version cannot be believed. He would contend that the seized weapons were not shown to the doctor for soliciting his opinion in respect of the injuries found in the postmortem report.
8. Learned counsel for appellant No.1 also argues that the death of the deceased took place after four days from the date of incident on account of complication in the surgery and treatment. As such, it cannot be said that the cause of death was due to the injuries since the doctor who conducted the -8- NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 postmortem opined that the death is due to head injury causing cardio respiratory arrest. Such being the case, the finding of the Court below that accused No.1 was the guilty of the offence under Section 302 of IPC was clearly in error or law. it was argued that arguendo, if the prosecution could be said to have proved the attack by the appellant on the deceased, the cause of death neither being immediate nor a direct result of it, there is no question of the ingredients of the offence of murder under Section 302 of IPC having been proved beyond reasonable doubt.
9. It was submitted that taken together all the circumstances, the appellant could, at the highest, be convicted of the offence of culpable homicide not amounting to murder under Section 304 part I of IPC since it was neither his intention to kill the decease nor to cause injury sufficient to cause death in the ordinary course of nature which come out by the circumstance of him surviving the attack for four days. As such, the appellant should be granted the benefit of modified conviction to one under the provision. Justifying the submission, the learned counsel stated that there was a civil dispute between the appellant and the deceased and the -9- NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 appellant was insisted PW.2 to give evidence in his favour. On that account, a sudden quarrel had taken place and by sudden provocation, the accused assaulted the deceased. Therefore, exception to Section 300 of IPC was attracted to the facts of this case.
10. Learned counsel would further contend that initially, complaint and the FIR registered for the offence punishable under Section 323, 324, 504 and 506 r/w Section 34 of IPC and subsequently, based on the statement as per Ex.P2 i.e., further statement of the complaint, Section 307 of IPC was invoked by the respondent-police and finally on 14.02.2014 since the deceased succumbed to the injuries, Section 302 of IPC was invoked by the respondent-police. By perusal of the evidence of the witnesses so also the prosecution case, admittedly, the accused gave a single blow and caused injuries to the deceased without any intention to do away his life and also without any preparation. The entire incident caused in a spur of moment with a grave and sudden provocation. As such, viewed from any angle, the offence falls under the category of Exception (I) of Section 300 of IPC which is punishable under Section 304 part I of IPC. Accordingly, he prays to allow the
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 appeal by setting aside the impugned judgment or modifying the sentence imposed by the learned Sessions Judge.
11. Refuting the above submissions made by the learned counsel for accused No.1, Sri Vijayakumar Majage, learned Additional SPP would vehemently contend that the judgment under appeal does not suffer from any perversity or illegality and the learned Sessions Judge, after appreciating the entire evidence and materials available on record, rightly convicted accused No.1 for the offences leveled against him. He would further contend that as far as the homicidal death of the deceased is concerned, though the doctor who conducted the autopsy has not been examined before the Court, the relevant document i.e., the postmortem report was got marked as Ex.P13. Nevertheless, the defence counsel not seriously disputed the homicidal death of the deceased. As such, the said aspect is very much proved by the prosecution. He would further contend that the injured witnesses i.e., PW.1 and PW.2 categorically deposed in respect of the incident and the injuries caused by accused No.1. Their version was supported by the other witnesses i.e., PW.3 to PW.5. Hence, there is no reason to disbelieve the version of the injured eyewitnesses and the
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 other witnesses i.e., PW.3 to PW.5. He would further contend that though there are minor contradictions in the evidence of eyewitnesses, the same does not go into the root of the prosecution case. He further states that the evidence of PW.14- doctor who treated the injured initially and the MLC register marked as Ex.P11 clearly show that the deceased was died due to the fatal assault made by accused No.1 on his head. Hence, by perusal of the evidence of doctor coupled with the evidence of eyewitnesses to the incident, the prosecution has proved the charges leveled against the accused beyond reasonable doubt. He would also contend that the weapons used for the commission of the crime were identified by PW.1 to PW.5 and the same were seized under Ex.P4-spot mahazar. Hence, the recovery of the material objects also proved by the prosecution. He would further contend that the motive for the alleged incident is also very much deposed by the evidence of PW.1 to PW.5 that there was a civil dispute and on that aspect, the accused was insisting PW.1 and PW.2 to give evidence in his favour. Hence, the incident was caused. As such, the prosecution proved the case in all aspects beyond reasonable doubt. Hence, learned Additional SPP prays to dismiss the appeal and to confirm the sentence.
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12. We have bestowed our anxious consideration on the oral and documentary evidence placed before us and also meticulously perused the material available on record including the trial Court records.
13. Having heard the learned counsel for accused No.1 and the learned Additional SPP for the State, the points that would arise for our consideration are:
(i) Whether the judgment under this appeal suffers from perversity and illegality? and
(ii) Whether the learned Sessions Judge is justified in convicting the appellant/accused No.1 for the offence punishable under Sections 302 and 324 of IPC?
14. This Court being the Appellate Court, in order to, re-appreciate the entire material on record, it is relevant to consider the entire prosecution witnesses and the documents relied upon. The cursory glance on the evidence deposed by the witness before the trial Court are as under:
(i) PW.1-Krishnappa, who is the complainant, deposed that accused No.1 used to force his grand mother-Made Hanumakka to give evidence in a civil dispute pending between
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 himself and his brothers. Therefore, a complaint was lodged against the accused persons. On the same day evening at about 7.00 to 7.30 p.m., he along with his brother deceased- Mohankumar and grand mother-Made Hanumakka were passing in-front of the house of accused No.1, at that time, accused No.1 all of a sudden assaulted the deceased on his head in a club and thereby, the deceased fell down. Thereafter, PW.3, PW.4, PW.6 and others shifted the deceased to the hospital for treatment. Further, on the advise of the doctor, the deceased was shifted to NIMHANS, Bengaluru and later, he was shifted to Tumakuru Hospital and from there, he was shifted to Harsha Hospital, Nelamangala. Thereafter, he was shifted to ESI Hospital, Bengaluru and from there to NIMHANS, Bengaluru. The deceased succumbed to the injuries on 14.02.2014 in NIMHANS, Bengaluru. Therefore, he lodged the complaint as per Ex.P2. However, this witness identified Mos.1 to 9 i.e., the weapons said to have been used by the accused for commission of the crime so also the clothes pertaining to the deceased.
(ii) PW.2-Made Hanumakka, who is none other than the grand mother of the deceased, stated that accused No.1 forced
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 her to depose evidence in his favour in the civil case pending between himself and his brother. She lodged a complaint against him and the police resolved the issue to that effect. According to her, for this reason, the accused assaulted the deceased on that day.
(iii) PW.3-Chikkannaswamy is the eyewitness to the incident. He stated that on 11.02.2014 at about 7.30 p.m., when he was standing in front of his house, accused No.1 started quarrel with the deceased and assaulted on the head of the deceased with the club. He further deposed that himself and others shifted the injured to the hospital and the police visited the spot and drew up the mahazar. He is the eyewitness for the spot mahazar as per Ex.P4 and seized material objections as per Mos.1 to 9.
(iv) PW.4-Ashwathhaiah is also an eyewitness to the incident. He reiterated the version of PW.3 and stated that he witnessed the incident and accused No.1 assaulted the deceased with the wooden club and therefore, himself and PW.3 shifted the injured to the hospital and after 3 to 4 days, he came to know that the deceased-Mohankumar has expired.
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(v) PW.5-Chikkaraju is also an eyewitness to the incident. However, he partially turned hostile to the prosecution case.
(vi) PW.6-Channegowda, PW.7-Chikkanna and PW.11- Rangaswamy, who are the eyewitness to the incident, turned hostile to the prosecution case.
(vii) PW.8-Thirumalaiah is an eyewitness for the spot mahazar-Ex.P4 drawn on 12.02.2014 and identified his signature on Ex.P4 as per Ex.P4(a).
(viii) PW.9-Ponnappa is the witness for the inquest mahazar-Ex.P13. According to him, he was present at the time of conducting the inquest mahazar at NIMHANS Hospital from 9.30 a.m. to 12.00 p.m., and he identified the injuries sustained by the deceased.
(ix) PW.10-Dr.T.C.Chandra Prakash deposed that on the intervening night of 11.02.2014 and 12.02.2014 at 00-30 hours, PW.1-Krishnappa was brought to the hospital with a history of assault by the accused and he treated the said patient. The Police recorded the statement of PW.1 as per Ex.P1.
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(x) PW.12-Ramachandraiah is also an eyewitness for the seizure of clothes belonging to the deceased. He identified the clothes of the deceased which are marked as Mos.4 to 9. He partially supported the case of the prosecution.
(xi) PW.13-K.D.Lakshman, who is the then ASI, deposed that on the information from the SHO of Hebbur Police Station, he went to the Government Hospital, Tumakur and recorded the statement of PW.1 and obtained his signature on the statement as per Ex.P1.
(xii) PW.14-Dr.Sridhar treated PW.1-Mohankumar on 11.12.2014 at about 8.30 p.m. He identified the wound certificate as per Ex.P9. However, he opined that the injuries are simple in nature.
(xiii) PW.15-Madhusudan, who is the then Head Constable of the respondent-Police, on receipt of the statement of injured from PW.13, on 11.12.2014 at about 12.30 a.m., registered the FIR against the accused as per Ex.P12 based on the statement of PW.1 as per Ex.P1.
(xiv) PW.16-Siddaraju is the then PSI of respondent- Police, who conducted the investigation in this case. He
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 conducted the spot mahazar as per Ex.P4, seized MOs.1 to 9 and recorded the statement of eyewitness i.e., PW.1- Kirshnappa and after obtaining necessary permission, invoked Section 302 of IPC and laid the charge sheet against the accused.
(xv) PW.17-Abdul Khadar, the then Dy.SP also investigated the case partially by arresting accused No.2 on 15.02.2014 and recorded her voluntary statement.
(xvi) PW.18-K.C.Giri is also the investigating officer, who conducted further investigation and after securing the documents, laid the charge sheet against the accused for the aforesaid offences.
15. By careful perusal of the above evidence, in order to prove the homicidal death of the deceased, the prosecution relied on the postmortem report as per Ex.P16 and also the inquest mahazar as per Ex.P13. By perusal of Ex.P16 i.e., postmortem report, the doctor clearly gave an opinion that the death of the deceased is due to the head injury causing cardio respiratory arrest. Even PW.1 to PW.5 clearly stated that the accused caused the injury on the head of the deceased and the
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 witnesses for the inquest mahazar also supported the case of the prosecution. As such, by conjoint reading of Ex.P13-inquest mahazar and Ex.P16-postmortem report coupled with the evidence of PW.1 to PW.5, the prosecution has proved the homicidal death of the deceased in this case.
16. Though the learned counsel for accused No.1 contended that the doctor was not examined before the Court, that cannot be the reason to discard the contents of postmortem report as per Ex.P16. The Hon'ble Apex Court in the case of Mukul Mahto and ors. vs. State of Jharkhand and anr. reported in 2008 (4) Crimes 286 (SC) held that when homicidal death is not disputed, non-examination of the doctor is not fatal to the case of the prosecution. As such, the prosecution proved the said aspect beyond reasonable doubt.
17. Once the homicidal death of the deceased is proved, then the next aspect arises for consideration is whether the accused is responsible for the same?
18. In order to prove the same, the prosecution has relied on the evidence of PW.1 and PW.2, who are the injured witnesses, so also the other witnesses i.e., PW.3 to PW.5.
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19. By careful perusal of the evidence of PW.1 and PW.2, who are the injured witnesses, they categorically deposed that on the fateful day, while the deceased passing in front of the house of accused No.1, accused No.1 picked up a quarrel and all of a sudden, assaulted the deceased with the wooden club. When PW.1 and others made an attempt to pacify the quarrel, at that time, accused No.1 assaulted PW.2 also. This version of PW.1 is supported by the evidence of PW.2 to PW.5. Therefore, there is no reason to disbelieve the consistent version of PW.1 to PW.5, who are the eyewitnesses to the incident. Though PW.5 partially turned hostile to the prosecution case, the other witnesses i.e., PW.1 to PW.4 clearly supported the case of the prosecution. Nevertheless, the prosecution also proved the motive for the commission of the alleged incident. As per the evidence of PW.1 and PW.2, there was a civil dispute pending between the accused and his brother and the accused was insisting PW.2 to give evidence in his favour before the Court of law. On that ground, the accused started quarrel and assaulted the deceased. PW.1 to PW.5 categorically deposed about the same. Hence, in our considered
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 opinion, the prosecution has also proved the motive for the alleged incident also.
20. As far as the recovery of bamboo wooden rod i.e., the weapon said to have been used for the commission of the crime i.e., MO.1 is concerned, the same was seized in the place of occurrence and PW.1 to PW.5 were clearly deposed about the same that the accused assaulted the deceased in the said weapon. Further, the said MO.1 sent to FSL and the FSL authority gave opinion stating that the blood found on the same is of human origin. By perusal of Ex.P16-postmortem report, the doctor clearly opined that the injuries sustained by the deceased could be caused from the said MO.1-wooden club. In such circumstances, in our considered opinion, the prosecution has also proved the recovery of MO.1 to connect the accused in the crime.
21. Hence, by perusal of the above evidence, there is no reason to disbelieve the consistent version of the eyewitness, recovery of MO.1 at the instance of the accused and also motive for the alleged incident. The material witnesses clearly deposed before the trial Court in respect of the above circumstances. Though the defence counsel cross-examined those witnesses,
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 nothing worthwhile has been elicited from their mouth. Hence, on the question of involvement of the accused as the perpetrator, we are in agreement with the trial Court.
22. However, the alternative contention of the learned counsel for accused No.1 that the alleged incident does not fall under the category of Section 302 of IPC and at the most, it will fall under Exception (I) of Section 300 of IPC which is punishable under Section 304 part I of IPC is concerned.
23. Exception I of Section 300 of IPC reads as under:
"Exception 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 and 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 provisos:--
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.
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 Explanation. --Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact."
24. 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 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.
25. By applying the above principles and on careful perusal of the case on hand, admittedly, the alleged incident took place on a spur of moment i.e., when PW.1 and PW.2, on the fateful day, passing in front of accused No.1, accused No.1
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 forced PW.2 to give evidence in his favour in the civil case pending between himself and his brother and started quarrel and all of a sudden, he took MO.1 which was lying there and gave a single blow on the head of the deceased. Even by perusal of the evidence of PW.1 and PW.2, who are the injured witnesses, they also categorically deposed that all of a sudden, the alleged incident took place and accused No.1 assaulted the deceased with any preparation or with an intention to take away his life. According to these witnesses to the alleged incident, the weapon used for the commission of the crime was lying in the pathway and the accused took the same and all of a sudden, assaulted the deceased. Hence, by the above evidence, it could be gathered that there was no intention or motive on the part of accused No.1 to take away the life of the deceased. Nevertheless, there was no preparation by the accused to commit the murder of the deceased. However, on careful perusal of Ex.P16-postmortem report, admittedly, the deceased succumbed to the injuries after the incident i.e., three to four days from the date of the incident.
26. Admittedly, the deceased was shifted to more than three hospitals and finally, while he was under treatment in
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 NIMHANS, Bengaluru, he succumbed to the injuries. Hence, the death of the deceased was after four days from the date of incident and the opinion of the doctor in the postmortem report that the death is due to the head injury causing cardio respiratory arrest. Hence, in such circumstances, it could be gathered that the incident was clearly comes under the ambit of Exception (I) of Section 300 of IPC which is punishable under Section 304 part I of IPC.
27. The Hon'ble Apex Court in the judgment of DAUVARAM NIRMALKAR vs. STATE OF CHHATISGARH reported in 2022 SCC OnLine SC 955 laid down the law in respect of the grave and sudden provocation theory and held in paragraph Nos.10 and 15.
"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
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 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 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
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 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 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
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 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
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.
13. Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused's reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. This has been aptly summarised by Ashworth in the following words:
"[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."
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
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 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. 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 charge, 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 or 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."
28. In the case on hand, on careful perusal of the evidence of the material witnesses i.e., PW.1-the brother of the deceased who is an eyewitness to the incident categorically deposed that himself and the deceased were moving in front of the house of accused No.1 and the appellant requested him to
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 give evidence in his favour in a case pending before the Court. For which, the deceased refused and all of a sudden, quarrel took place and thereby, accused No.1 picked up wooden rod which was lying in the said spot and assaulted the deceased on his head and thereby, the deceased fell down. Hence, it could be gathered that the accused had no motive or intention to commit the murder of the deceased nor he made any preparation to that effect. The weapon used by the accused is a wooden rod which was lying in the place of indecent and he assaulted with the same on a sudden provocation, a single blow to the deceased. Further, the deceased died after four days from the date of incident and he was treated in several hospitals and finally, he succumbed to the injuries at NIMHANS Hospital.
29. In the case of Nanak Ram vs. State of Rajasthan reported in (2014)12 SCC 297, the Hon'ble Apex Court held at paragraphs No.18, 19, 20 and 21 as under:
"18. It is true that the accused party had land dispute with the victim party. The Collector ordered conversion of subject land into abadi and on the applications made by Shivji Ram and his two brothers, Pattas were issued as evident from P12, P16, P17, P20, P21 and P24. Accused Bhera Ram preferred appeals against the grant of Patta to Panchayat Samiti at the first instance and they
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 came to be dismissed and the revision preferred before the Collector was pending. PW8 Sarpanch Dhura Ram and PW5 record keeper Hanuman Das have stated so. Thus the evidence shows that the accused party was desirous to get the subject land to themselves and were taking legal steps to achieve it. On coming to know of the fencing put by Shivji Ram and his brothers they were annoyed and went there to remove the fencing. While they were dismantling the fencing, Shivji Ram and his brothers came there and objected to it by saying that they have obtained Patta and a sudden quarrel erupted.
19. A fight suddenly takes place for which both parties are more or less to be blamed and it is a combat whether with or without weapons. It may be that one of them starts it, but if the other had not aggravated it by his own conduct, it would not have taken the serious turn it did. Heat of passion requires that there must be no time for the passions to cool down and in this case the parties have worked themselves into a fury on account of the verbal altercation in the beginning. Out of the 9 injuries, only injury no.1 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The assaults were made at random. Even the previous altercations were verbal and not physical. The earlier disputes over land do not appear to have assumed the characteristics of physical combat. This goes to show that in the heat of passion upon a sudden quarrel the accused persons had caused injuries on the deceased. That being so the Exception 4 to Section 300 IPC is applicable. The fact situation bears great similarity to that in Ghapoo Yadav & Ors. vs. State of M.P. (2003) 3 SCC 528.
20. Looking at the nature of injuries sustained by the deceased and the circumstances as enumerated above the conclusion is irresistible that the death was caused by the acts of the
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 accused done with the intention of causing such bodily injury as is likely to cause death and therefore the offence would squarely come within the first part of Section 304 IPC and the appellants would be liable to be convicted for the said offence.
21. We are of the considered view that imposition of 7 years rigorous imprisonment on each of the appellants for the conviction under Section 304 Part I IPC would meet the ends of justice. We sustain the other conviction and sentences imposed on the appellants. We are also of the view that the appellants are not entitled for release on probation."
30. Hence, by considering the above circumstance, admittedly, the incident was caused in a spur of moment and there was sudden loss of self control by the accused and thereby, he caused the incident. It must be stated that the prosecution must prove the guilt of the accused, that is, 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 on the accused of proving that this 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 and the evidence adduced by the prosecution in the Court. It is in this context, we would refer to the case of the prosecution. Hence, by considering the facts and circumstances of the case on hand, it could be gathered that
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 the appellant had no such intention to kill the deceased and the entire incident was caused in a spur of moment. 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 by the appellant/accused No.1. Therefore, we hold that the acts of provocation on the basis of which the appellant caused the death of the deceased were both sudden and grave and that there was loss of self-control. Hence, by applying the provocation exception, we deem it appropriate to convert the conviction of the appellant from Section 302 of IPC to Section 304 part I of IPC. Our view is fortified by the judgment rendered by the Hon'ble Apex Court in DAUVARAM NIRMALKAR's case stated supra.
(emphasis supplied)
31. Accordingly, we answered point Nos.1 and 2 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.85/2014 dated 08.02.2017 by the Principal Sessions Judge at Tumakur in so far as offence punishable under
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 Section 302 of IPC, in respect to accused No.1, 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.
iii. On the question of sentence, the appellant/accused No.1 is sentenced for the period he has already undergone incarceration i.e., for a period of 06 years, 07 months and 28 days and he shall pay a fine of Rs.35,000/- (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 six months.
iv. On payment of fine or default imprisonment, the appellant/accused No.1 is directed to be released, if he is not required in any other cases.
v. The judgment of conviction and order of sentence passed in passed in S.C.No.85/2014 dated 08.02.2017 by the Principal Sessions Judge at Tumakur in so far as offence punishable under Section 324 of IPC, in respect to accused No.1, is confirmed.
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NC: 2023:KHC:22289-DB CRL.A No. 376 of 2017 In view of disposal of the main appeal, I.A.Nos.1/2022 and 1/2023 do not survive for consideration and they are dismissed accordingly.
Sd/-
JUDGE Sd/-
JUDGE VM List No.: 1 Sl No.: 6