Karnataka High Court
Sri Dharaneesh D vs State Of Karnataka on 10 July, 2023
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2023:KHC:23716-DB
CRL.A No. 1168 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1168 OF 2018
BETWEEN:
SRI DHARANEESH D
S/O C. DODDAIAH
AGED ABOUT 40 YEARS
R/AT THIMMEGOWDA BUILDING
2ND MAIN ROAD, 3RD CROSS
VIVEKANANDA LAYOUT
CHANNAPATNA-562 160.
...APPELLANT
(BY SRI RAVI B NAIK, SR. COUNSEL
SRI CHANDRASHEKAR P, ADV., AND
Digitally SMT. VIJETHA R NAIK, ADV.)
signed by
NANDINI MS AND:
Location:
High Court of STATE OF KARNATAKA
Karnataka
BY M.K. DODDI POLICE STATION
RAMANAGAR DISTRICT
REP BY THE LEARNED HIGH COURT
PUBLIC PROSECUTOR
HIGH COURT OF KARNAAKA
BENGALURU - 560 001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 06.06.2018 PASSED
BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
RAMANAGARA IN S.C.NO.52/2016 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, RAJESH
RAI J., DELIVERED THE FOLLOWING:
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CRL.A No. 1168 of 2018
JUDGMENT
This appeal by the convicted accused No.1 is directed against the judgment of conviction and order of sentence dated 6.6.2018 passed by the III Additional District and Sessions Judge, Ramanagara in S.C.No.52/2016, wherein the appellant/accused No.1 was convicted for the offence punishable under Section 302 IPC and sentenced to undergo R.I. for life and also directed to pay fine of Rs.50,000/- for the aforesaid offence, in default of payment of fine, directed to undergo R.I. for six months.
2. The case of the prosecution in brief is that a civil dispute pending between accused No.3-Vekatappa and CW2- Ramakrishnaiah in O.S.No.278/2015. That being the case, on 5.4.2016 at about 6.30 p.m., within the jurisdiction of M.K. Doddi police station in Devarahalli village, where the house of CW2 is situated, accused No.3 came in his motorbike bearing No.KA-02-EL-1633 wherein accused No.2-Avin Kumar was the pillion rider. Similarly, accused No.1-Dharneesh D, the appellant herein, being the rider of his bike No.KA-42-Q-5343 wherein accused No.4-Smt.Nagamma was the pillion rider, came to the house of CW2-Ramakrishnaiah. They asked CW2 -3- NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 to give their share in the ragi grown in the land in which civil dispute is pending. At that time, CW2 had asked them as to why he has to give a share when a civil dispute is pending. However, accused have tried to drag one bag of Ragi. At that point of time, accused NO.2-Avin Kumar threw a wooden stool on CW2, but CW2 escaped from the hit and the said stool fell down and broke into pieces. At that point of time, CW3- Harshith and deceased Arjun asked accused No.2 as to why they have indulged in assaulting their father. At that point of time, accused No.1-Dharneesh has assaulted Arjun on his head by the broken stool re-piece and on account of which Arjun has sustained severe injuries on his head. Accused have also abused CW1 and CW2 in filthy language and threatened to do away with their life. On account of the injuries on the head of Arjun, he was taken to Pooja hospital, Channapattana for initial treatment and thereafter, he was shifted to NIMHANS Hospital, Bengaluru for further treatment, wherein the said Arjun, succumbed to the injuries on 8.4.2016 at about 6.45 p.m.
3. On the date of incident i.e., on 5.4.2016 itself at about 9.45 p.m., CW1-Sarojamma, mother of the deceased- Arjun, lodged a complaint-Ex.P1 against accused Nos.1 and 2, -4- NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 before PW12-head constable of M K Doddi Police Station and based on which FIR was registered in Crime No.39/2016 as per Ex.P19 for the offence punishable under Sections 504, 324, 506 r/w.34 of IPC. Thereafter, PW12 conducted spot mahazar on 6.4.2016 as per Ex.P2 and seized the re-piece which is marked as MO.1 i.e. the weapon used for the commission of crime. Later, the deceased succumbed to the injuries.
4. After receipt of death memo of the deceased on 08.04.2016, PW.16, PSI recorded the further statement of PW1 and after obtaining necessary permission from the Magistrate, invoked Section 302 of IPC in Crime No.39/2016. Thereafter, inquest panchanama has been conducted as per Ex.P18 and Investigating Officer arrested the accused and recorded their voluntary statement and recovered M.O.2 to 5 under mahazar Ex.P.11 and after obtaining Postmortem Report and opinion from the Doctor in respect of cause of death as per Ex.P.13 and 14, laid the charge sheet against the accused Nos.1 to 4 for the offences punishable under Sections 302, 504 & 506 R/w Section 34 of IPC. On commital of the case to the court of sessions, the learned Sessions Judge framed the charges for the aforesaid offences and read over the same to the accused. -5-
NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 However, the accused pleaded not guilty and claimed to be tried.
5. In order to bring home the guilt of the accused, before the Trial Court, the prosecution in total examined 16 witnesses as PWs.1 to PW.16 so also got marked the documents as per Ex.P.1 to P.33 and also five material objects as M.O.1 to M.O.5. After conclusion of trial, the learned Sessions Judge read over the incriminating portion of his evidence of witness to the accused as contemplated under Section 313 of Cr.P.C, However, the accused denied the same. Though, the accused have not choose to examine any witness on their behalf, however, got marked 13 documents as Ex.D1 to D13.
6. The defence of the accused is one of total denial and that of false implication. However, after hearing the learned counsel for the accused and the Public Prosecutor and after assessment of oral and documentary evidence available on record, the learned Sessions Judge, acquitted accused Nos.2 to 4 and convicted the accused No.1 for the charge leveled against him as stated supra. The said impugned judgment is challenged under this appeal.
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7. We have heard the learned Senior Counsel for the appellant Sri Ravi B Naik, so also the Sri Vijay Kumar Majage, learned SPP-II for the respondent - State.
8. Learned Senior Counsel for the appellant, contended that the impugned judgment passed by the Trial Court suffers from perversity and illegality since the learned Sessions Judge without appreciating the evidence and material available on record, convicted accused No.1 based on assumption and presumption and as such judgment under appeal is liable to be set-aside.
9. Learned Senior Counsel would further contented that though evidence of eye witness i.e., PWs.1 to PWs.3 does not corroborates with each other, the same cannot be based for conviction, since they are highly interested witnesses and they are family members and their evidence was not supported by other independent witnesses. Without considering the same, learned Sessions Judge convicted the accused, hence the impugned judgment liable to be set-aside.
10. Learned Senior Counsel alternatively contended that by perusal of postmortem report so also the evidence of -7- NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 PWs.1 to 3, the injury sustained to the deceased Arjun so also the manner in which the incident committed, this case squarely comes under the Exception 1 to Section 300 of IPC. As such, punishment under Section 302 of IPC has to be modified/altered into Section 304 Part II of IPC.
11. Learned Senior Counsel also relied the law laid down by the Hon'ble Apex Court in the case of DAUVARAM NIRMALKAR V. STATE OF CHATTISGARH - 2022 SCC OnLine SC 955.
12. Refuting the above submission of learned Senior Counsel Sri Vijay Kumar Majage, learned SPP-II vehemently contended that the judgment under the appeal does not suffers from any illegality or perversity and based on available evidence on record, the learned Sessions Judge has rightly convicted the accused No.1 based on the evidence of PWs.1 to 3, who are the eye witnesses to the incident. The consistent version of PWs.1 to 3 would clearly point out the guilty of the accused. As such, the learned Sessions Judge has rightly convicted accused No.1 for the offence charged against him. He would further contend that the prosecution proved recovery of -8- NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 material objects, which is said to have been used for commission of crime i.e., M.O.1 and the prosecution also proved the motive for the alleged incident that, there is a civil dispute pending between the accused and the deceased and hence, the accused committed the murder of deceased.
13. As far as alternative submission of learned Senior Counsel for the appellant is concerned, the learned SPP-II submits that this case does not fall under Exception 1 to Section 300 of IPC since accused caused injury on the head i.e., vital part of the body of the deceased and he had intention and motive to eliminate the deceased. In such circumstances, the case does not fall under the purview of Exception 1 to 300 of IPC but fall under Section 304 Part II IPC and learned Sessions Judge rightly convicted the accused for the offence punishable under Section 302 of IPC. As such, learned SPP-II prays to dismiss the appeal.
14. We have given our anxious consideration to both the oral submission made by the learned Senior Counsel for the appellant so also learned SPP-II for respondent - State and also perused the oral and documentary evidence available on record including the trial Court records. -9-
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15. Having heard the learned counsel for the parties and perused the evidence and documents available on record, the points that would arise for consideration are as follows:
1) Whether the judgment under the appeal suffers from any illegality or perversity?
2) Whether the learned sessions Judge justified in convicting the appellant/accused No.1 for the offence punishable under Section 302 of IPC?
16. This Court being the appellate Court, re- appreciation of the entire evidence on record is very much required. On a cursory glance of evidence adduced before the trial Court, PW.1 is Sarojamma, is the mother of the deceased in this case and eye witness to the incident. She deposed that four accused persons came to her house on 05.04.2016 and they were taken the bags filled with Ragi from her house. At that time, her husband asked them they should not take that for the reason that there is a civil dispute between them and the accused. At that time, accused No.2 took a wooden stool, which was available there and tired to hit her husband i.e., PW.2. In the meanwhile, her husband escaped from hit and
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 stool fell on the ground and broken into pieces and thereafter two children of PWs.1 and 2 came there and one among them, the deceased had questioned the accused No.1 about the altercation and at that time, accused No.1 took the broken piece of stool and gave a single blow on the head of the deceased i.e., son of PWs.1 and 2. Hence, she lodged complaint on 05.04.2016 against accused Nos.1 and 2 as per Ex.P.1 and subsequently, after the death of the deceased on 08.04.2016, she gave further statement and based on the same, the respondent-police invoked provision of Section 302 of IPC.
17. PW.2 - Ramakrishnaiah, who is the father of the deceased and husband of PW.1 reiterated the version of PW.1 and deposed that on 05.04.2016, because of the assault made by accused No.1, his son i.e., deceased Arjun died on 08.04.2016 at NIMHANS hospital.
18. PW.3 - B.D.Prakash is the uncle of deceased in this case. He is also eye witness to the incident and deposed in similar manner as that of Pws.1 and 2, that he had witnessed the incident and also about the assault made by accused No.1 on the head of the deceased Arjun with M.O.1 - repiece.
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19. PW.4 - Shivalingegowda is mahazar witness i.e., spot mahazar drawn as per Ex.P2 on 06.04.2016 by PW.12 i.e., Head Constable of respondent - Police and thereby recovered the M.O.1 - repiece said to have used for the commission of crime by accused No.1 so also two motorcycles as per Exs.P3 to 10 i.e., photographs of motorcycles.
20. PW.5 - Nandeesh, is also mahazar witness i.e., seizure mahazar of broken pieces of stool i.e., M.Os.2 to 5 under Ex.P11. This witness supported the case of the prosecution.
21. PW.6-Dr.G.S. Radhika, treated the injured on 05.04.2016 and she suggested the family members to shift the patient to NIMHANS for higher treatment.
22. PW.7 - Dr.Pradeep Kumar G.V, who conducted autopsy over the dead body of the deceased and issued post mortem Report as per Ex.P13.
23. PW.8 - Manjunath C.G, who is the Assistant Engineer, who drew sketch of scene of occurrence as per Ex.P.15.
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24. PW.9 - Madan, who is mahazar witness Ex.P11 i.e., seizure mahazar of broken pieces of stool as per Ex.P.11. However, this witness turned hostile to prosecution case.
25. PW.10- Arun Kumar is also witness for Ex.P11 i.e., seizure of 3 wooden legs of stool and one wooden repiece as per M.O.2 to 5. This witness supported the case of prosecution.
26. PW.11 - Vittal is witness for inquest panchanama as per Ex.P18 and identified the injury on the dead body of the deceased.
27. PW.12 - Mahadev is Head Constable, who received complaint from PW.1 as per Ex.P1 and registered FIR in Crime No.39/2016 for the offences punishable under Sections 324, 504 and 506 R/w 34 of IPC against accused Nos.1 and 2 as per Ex.P.19. He also drew spot mahazar as per Ex.P2 and seized wooden repiece i.e., M.O.1 and also two motorcycles.
28. PW.13 - Nagaraju conducted the further investigation in this case and recorded voluntary statement of accused No.1 and also conducted Ex.P.18 inquest panchanama and mahazar of Ex.P11 i.e. recovery of M.Os.2 to 5 and he obtained postmortem report and also opinion from the doctor
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 regarding cause of death as per Ex.P13 and 14 and laid charge sheet against the accused.
29. PW.14 - Dr.Dhananjay Bhat who is Professor of Neuro Surgery, NIMHANS has treated the deceased Arjun at NIMHANS and issued Ex.P30 i.e., complete file in respect of treatment conducted to the deceased in this case.
30. PW.15 - Syed Nasir Pasha who is Head Constable, received FIR on 05.04.2016 and submitted to Court on 06.04.2016.
31. PW.16 - Sathish C recorded further statement of PW.1 - complaint on 07.04.2016 and also apprehended the accused along with H.C.No.178 - Mahadesh.
32. On careful perusal of above evidence available on record, as far as homicidal death of deceased is concerned, the prosecution relied on the evidence of PW.7 i.e., the Doctor who conducted autopsy over the dead body and issued Post Mortem report as per Ex.P.13. On perusal of Ex.P13, it clearly depicts that there are three injuries over the dead body of the deceased and Doctor gave opinion that the cause of death is due to head injury sustained. Further, the prosecution also relied on inquest panchanama as per Ex.P.18 conducted by
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 PW.16 in the presence of family members and also witness for the same i.e., PW.11, who supported the case of the prosecution and identified the injury over the dead body so also his signature in Ex.P18 inquest panchanama. Nevertheless, PW.7, is the Doctor who examined M.O.1 - wooden repiece and gave opinion that the death could be caused by M.O.1 i.e., wooden repiece as per Ex.P.14. Hence, in our considered view prosecution proved the homicidal death of the deceased.
33. On careful perusal of complaint at Ex.P1 lodged by PW.1 at the earliest point of time stated that accused No.2, PWs.2 and 3 are brothers and in respect of land belonging to them civil dispute is pending. It is also stated in Ex.P.1- complaint that on 05.04.2016, accused No.2 along with his men came to the field and tried to cut standing trees and there was complaint in this regard and the matter was settled before the police station. The contents of Ex.P1 reveals the fact that on the same day at about 6.30 p.m, the accused persons abused her and her husband in filthy language and assaulted the deceased Arjun in wooden repiece i.e., M.O.1. Therefore, she lodged complaint as per Ex.P1. Thereby, the criminal law set into motion and on receipt of Ex.P1, PW.12 - Head
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 Constable has registered a case and transmitted FIR as per Ex.P19 to the Court and thereafter on 07.04.2016, PW.16 conducted investigation and recorded further statement of PW.1 and invoked Section 307 of IPC since the deceased admitted to NIMHANS Hospital for head injury. Thereafter, on 08.04.2016 at 7.00 a.m, the deceased succumbed to the injuries. Therefore, Section 302 of IPC has been invoked.
34. On perusal of evidence of PW.1, it depicts that PW.1 categorically deposed in a similar manner as per Ex.P1. Her evidence clearly corroborated with evidence of PWs.2 and 3 i.e., husband and uncle of the deceased respectively. PWs.2 and 3 are also categorically deposed that on fateful day, the accused came to the house of PWs.1 and 2 and insisted to given bags of Ragi which was opposed by PWs.1 and 2. At that time, they picked up quarrel and thrown a stool on PW.2. PW.2 escaped from the hit and the said stool broken into pieces. Thereafter, the deceased Arjun questioned the same. At that time, out of broken pieces of stool, accused No.1 assaulted the deceased Arjun on his head and caused grievous injury. The evidence of PWs.1 to 3 is consistent in respect of the alleged incident and assault made by accused No.1 to the deceased
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 Arjun. Nevertheless, the doctor who conducted autopsy over the dead body of the deceased categorically stated that the death is due to head injury and also on examination of M.O.1 - wooden piece he opined that injury could be caused by M.O.1. In the evidence of PWs.1 to 3, they also categorically stated that accused No.1 made an assault on the head of the deceased Arjun. In such circumstances, in our considered opinion the prosecution has successfully proved that accused No.1 alone is responsible for the death of the deceased and he is the perpetrator of the crime. Even otherwise, the prosecution also proved the recovery of M.O.1 and two motorcycles used by accused Nos.1 to 4 to come to the house of the deceased, under Ex.P.2 - Mahazar. PW.16 PSI conducted the said mahazar in the presence of PWs.1 to 3. As such, recovery of M.O.1 is at the instance of accused No.1 also proved by the prosecution. As far as motive for the alleged incident is concerned, the prosecution has relied on the evidence of PWs.1 to 3 and also the documents produced before the Court as per Exs.P26 to 29 to show that there was civil dispute pending between the accused and the complainant. The accused also got marked the documents at the time of cross-examination of PW.2 as per Ex.D8, by confronting to the witness shows that,
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 there is enmity between the complainant and the accused with regard to land dispute, that aspect was categorically deposed by PWs.1 to 3 in their evidence. As such, it is the case of the prosecution that civil dispute is the motive for the commission of alleged incident by accused No.1. Hence, by careful perusal of evidence of PWs.1 to 3 and also documents at Exs.P26 to 29, we are of the opinion that the prosecution has proved that aspect of the matter and the Trial Court has rightly come to the conclusion that accused No.1 is the perpetrator of the crime. As such, we are in agreement with the Trial Court findings in that accused No.1 committed the alleged incident.
35. However, as far as alternative submission made by learned Senior Counsel for the appellant that, this case does not fall under the provision of Section 302 of IPC and over all circumstances of the case and the manner in which the offence committed, it could be gathered that the incident was clearly comes under the ambit of Exception 1 to Section 300 of IPC punishable under Section 304 Part II of IPC. On careful perusal of evidence of PW.13, the Doctor who conducted autopsy over the dead body found two surgical wounds on the head of the deceased Arjun at the time of post mortem. From
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 the evidence of PW.13 it is clear that, the Medical Officer of NIMHANS Hospital has opined that fully body autopsy is required to come to the conclusion in respect of death of deceased is concerned. Accordingly, after obtaining report of autopsy of full body, the doctor has opined that the death is due to head injury. Moreover, on careful perusal of evidence of PWs.1 to 3 all these witnesses categorically deposed that on fateful day, the accused came to the house and due to sudden quarrel in respect of civil dispute, accused No.1 assaulted the deceased i.e., single blow on the head of the deceased in the wooden plank which was very much available inside the house. As such, it could be gathered that there is no such preparation or intention on the part of the accused No.1 to take away the life of the deceased Arjun. The entire incident caused in a spur of moment i.e., due to sudden loss of self control by the accused due to altercation took place between the accused and the deceased in respect of the civil dispute pending between them. As far as civil dispute is concerned, as stated supra, witnesses (PWs.1 to 3) have categorically deposed, so also the documents were placed at Exs.P.26 to 29. Moreover, as far as the weapon used for the commission of crime i.e., M.O.1 is concerned, on careful perusal, it is the case of the prosecution
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 that M.O.1 was lying in the house of the deceased and due to sudden quarrel, accused No.1 picked up M.O.1 from there and assaulted on the head of the deceased. As such, even while considering the weapon used for commission of crime, once again it could be gathered that there is no such intention, motive or preparation by the accused to commit murder of the deceased Arjun. In such circumstances, the Hon'ble Supreme Court in the case of DAUVARAM (supra) has clearly held that the law in respect of grave and sudden provocation theory at paragraph Nos.10, 11, 12, 13 and 15 has held as under:
"10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra,10 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
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 offender from the power of self-control, the test to be applied is that of a reasonable man and not that of an unusually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. K.M. Nanavati (supra) succinctly observes:
"84. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self- control and killed Ahuja deliberately.
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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 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
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 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,11 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 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
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation.12 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 12 See the opinion expressed by Goddar, CJ. in R v. Duffy (supra). 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
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 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 Ashworth13 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.
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15. Following the view expressed in K.M. Nanavati (supra), this Court in Budhi Singh v. State of Himachal Pradesh14 observed that in the test for 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 Pradesh15.
36. By considering the dictum laid down by the Hon'ble Apex Court in the above case and by careful perusal of the case on hand, the evidence of material witnesses i.e., PWs.1 to 3,
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 who are none other than the close relatives of the deceased and also the fact that there was civil dispute pending between the parties and the entire incident caused in a spur of moment since there was a sudden fight and accused No.1 due to loss of self control caused injury on the person of the deceased. Moreover, it is difficult to infer that the accused No.1 had the knowledge of the fact that injury caused by the accused in ordinary course of nature is sufficient to cause the death of the deceased. Considering that aspect of the matter and also since the doctor who conducted postmortem report categorically deposed that as far as cause of death is concerned, full body examination is required and he opined after obtaining report from the concerned authority and also considering the weapon used for commission of crime, we are of the considered opinion that this case squarely comes under the purview of Exception 1 to Section 300 of IPC which is punishable under Section 304 Part II of IPC instead of Section 302 of IPC. The Hon'ble Supreme Court in the case of NANAKRAM v. STATE Of RAJASTHAN, (2014) 12 SCC 297 has held at paragraph Nos.18, 19, 20 and 21 as under:-
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 "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 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
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 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 v. State of M.P.?
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 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. The conviction of the appellants/accused under Section 304 Part II read with Section 149 IPC by the High Court is liable to be set aside.
Considering the above case, it is held that:-
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
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 the appellants. We are also of the view that the appellants are not entitled for release on probation."
37. Hence, by considering the above facts and circumstances that the incident was caused in a spur of moment due to sudden loss of self control by the accused and thereby he caused the injury on the head of the deceased i.e., a single blow, this case also falls under Exception 1 300 of IPC and punishable under Section 304 Part II of IPC. The prosecution must prove the guilt of the accused i.e, it must establish all the ingredients of the offence 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 the said burden, the accused may rely upon the case of the prosecution and evidence adduced by the prosecution before the Court. In this context, we would refer to the case of the prosecution as above.
38. In the totality of the circumstances, of the evidence let in by the prosecution by subjecting to examination of many witnesses in order to prove the guilt against the accused, but the concept of intention and knowledge are more important and also main ingredients to constitute the offence. It is well
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 established that, the death is caused by a single blow made by the accused with a wooden repiece. The wooden repiece is nothing but broken piece of the stool, which is said to have been used by the accused without any pre-meditation to take away the life of the deceased. But, anyway injury was caused on his head part which clearly proves that the death is caused to due to head injury as evident in the postmortem report, issued by the Doctor, who conducted autopsy over the dead body. Hence, the act committed by the accused done without any premeditation, the offence cannot come under the purview of Section 302 of IPC. Keeping in view of the provisions of Sections 299, 300, 302 and 304 of IPC, relating to the scope of culpable homicide and murder but the distinction is reiterated as to when culpable homicide amounts to murder and when it does not, amount to murder. The law reiterates the distinction between application of Section 302 of IPC and 304 of IPC. Section 299 of IPC and Section 300 of IPC deal with the definition of 'culpable homicide' and 'murder' respectively. Based on the facts and circumstances of the case on hand and keeping in view of the provisions of Section 299 of IPC relating to the culpable homicide described as an act of causing death, firstly, with the intention to causing death, secondly, with the
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 intention of causing such bodily injury as is likely to cause death and thirdly, with the knowledge he is likely to cause death. The formal part of Section 299 of IPC emphasizes on the expression and intention, while the latter part, upon knowledge. If this question is found in the positive, but the cases come within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 of the Code. However, different degree of mental element in culpable homicide, i.e., the mental attitude towards the consequences of conduct is one of the intention, once the offence is caused in any three stated manners as noted above, it would be culpable homicide which is held in the greater extent in the judgment of the Hon'ble Supreme Court, in the case of Rampal Singh v. State of Uttar Pradesh - (2012)8 SCC 289. Placing reliance in the case on hand, it comes under the purview of Section 304 Part II IPC instead of 302 of IPC. Even though the Trial Court has rendered a judgment of conviction for heinous offence, however, the civil nature of a dispute has turned into criminal nature and the same is also observed by the Trial Court relating to appreciation on evidence on record.
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018
39. Hence, by considering the facts and circumstances of the case on hand it could be gathered that the appellant had no such intention to kill the deceased and the entire incident was caused due to 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 appellant-accused No.1. Therefore, we hold that the act of provocation on the basis of which the appellant-accused No.1 caused death of the deceased were both sudden and grave and 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 304 Part II of IPC. Accordingly, we answered the point Nos.1 and 2 and proceed to pass the following:-
::ORDER::
I. Criminal Appeal is allowed-in-part.
II. The judgment of conviction and order of sentence passed in S.C.No.52/2016 dated 06.06.2018 passed by the III Addl. District & Sessions Judge, Ramanagara in so far as the offence punishable under Section 302 of IPC, in respect of accused No.1 is converted from Section 302 of IPC to Exception 1 Section 300 of
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NC: 2023:KHC:23716-DB CRL.A No. 1168 of 2018 IPC. Accordingly, he is convicted for the offence punishable under Section 304 Part II of IPC. III. On the question of sentence, the appellant-
accused No.1 is sentenced for a period he has already undergone incarceration i.e., for a period of 4 years 7 months 20 days and he shall pay a fine of Rs.50,000/- (inclusive of fine amount which he has already deposited before the Trial Court, if any) for the offence punishable under Section 304 Part II of IPC and in default he shall undergo simple imprisonment for a period of 3 months. Other punishment/sentence if any, for other offences shall be kept intact and all sentences shall run concurrently.
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 case.
Sd/-
JUDGE Sd/-
JUDGE RS/NMS