Karnataka High Court
Balaji S/O Srirang Nalbale vs The State Through Bhalki Rural Police ... on 22 January, 2025
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2025:KHC-K:461-DB
CRL.A No. 200207 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 200207 OF 2022
(374(Cr.PC)/415(BNSS)
BETWEEN:
BALAJI S/O SRIRANG NALBALE
AGE: 52 YEARS, OCC: COOLIE
R/O: KAKNAL VILLAGE, TQ: BHALKI
DIST: BIDAR - 585411.
...APPELLANT
(BY SRI GIRISH M PATIL, ADVOCATE)
AND:
THE STATE THROUGH
BHALKI RURAL POLICE STATION,
Digitally signed NOW REPRESENTED BY ADDL. SPP
by RAMESH
MATHAPATI HIGH COURT OF KARNATAKA
Location: HIGH AT KALABURAGI BENCH - 585103.
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI SIDDLING P. PATIL, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S.374 (2) OF CR.P.C,
PRAYING TO CALL FOR RECORDS AND EXAMINE THE RECORDS
AND SET ASIDE THE JUDGMENT AND SENTENCE PASSED BY
THE LEARNED ADDITIONAL DISTRICT & SESSIONS JUDGE, AT
BIDAR FOR CONVICTING THE APPELLANT BY ITS JUDGMENT
DATED 21/08/2021 PASSED IN SESSIONS CASE NO.102/2016.
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NC: 2025:KHC-K:461-DB
CRL.A No. 200207 of 2022
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K.,) This Appeal by the convicted accused is directed against the judgment of conviction and order of sentence dated 21.08.2021 passed in S.C.No.102/2016 by the Addl. District and Sessions Judge, Bidar, (hereinafter referred to as the 'learned Sessions Judge') whereby, the learned Sessions Judge convicted the appellant/accused for the offences punishable under Sections 498-A and 302 of IPC and sentenced him to undergo Simple imprisonment for a period of one year and to pay a fine of Rs.1,000/-, in default of payment of fine, he shall undergo simple imprisonment for a period of one month for the offence punishable under Section 498-A of IPC. Further, the accused is sentenced to undergo imprisonment for life (reminder life of the accused), for the offence punishable under Section 302 of IPC and shall pay a fine of Rs.5,000/. It is -3- NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 further directed that substantive sentences passed against the accused shall run concurrently.
2. The abridged facts of the case are as follows:
The deceased-Mukta @ Bhagirati in the instant case was the wife of accused, their marriage was solemnized six months prior to 02.09.2015 i.e., the date of incident. After their marriage, the appellant/accused physically and mentally abused her. Two months into the marriage, the accused started consuming alcohol and assaulted his wife for no reason. Against this backdrop, on 02.09.2015 at about 07:00 p.m., the accused returned home inebriated and verbally abused the deceased.
When she confronted her husband on his regular alcohol consumption and further conveyed that she would quit her share of financial assistance to him as she found it difficult to run the family, enraged by this the accused once again abused and threatened to kill her. Following the row, the accused poured kerosene and set her ablaze with the aid of a chimney lamp. When she cried for help, her mother-in-law P.W.4 came to her rescue. At that time, the accused fled the spot.
Subsequently, the deceased-Mukta telephoned her brother-in-
law P.W.7 and divulged to him about the incident.-4-
NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 Immediately, P.W.7 rushed to the spot and admitted her to the hospital in an ambulance. Accordingly, she was admitted as an inpatient in Government Hospital, Bhalki and was treated by Doctor-P.W.10. On the same day, i.e. on 02.09.2015, based on Medico-Legal Case, the PSI- P.W.13 of the respondent-Police proceeded to the Government Hospital and recorded the statement of the injured Mukta. On the strength of the said statement, he registered a case against the accused for the offences punishable under Sections 498-A and 307 of IPC in Crime No.193/2015 dated 02.09.2015. Subsequently, after two days, the injured Mukta was relocated to Latur, Maharashtra for higher treatment and where she survived for about 18 days and then succumbed to the injuries on 21.09.2015. Accordingly, based on the death report of the deceased Mukta, P.W.13 submitted a requisition before the jurisdictional Magistrate to invoke Section 302 of IPC and accordingly, permission was accorded by the learned Magistrate to invoke Section 302 of IPC in Crime No.193/2015. Thereafter, the Investigating Officer conducted the investigation by drawing mahazars like spot panchanama and seized M.O.1 and M.O.2 and also conducted inquest panchanama on the corpse of the deceased. On -5- NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 recording the statement of the witnesses, chargesheet was laid before the committal Court for the aforementioned offences.
3. After committal of the case before the Sessions Court, the learned Sessions Judge framed charges against the accused for the said offences and the same was read over verbatim to the accused, which he denied and claimed to be tried.
4. In order to prove the charges levelled against the accused, the Prosecution examined in total 14 witnesses as P.W.1 to P.W.14, marked 16 documents as Exs.P1 to P16 and identified 4 material objects as M.O.1 to M.O.4.
5. Following the completion of prosecution evidence, the learned Sessions Judge read over the incriminating portion of the material witnesses to the accused as stipulated under Section 313 of Cr.P.C. which was denied by the accused. The defence of the accused is of total denial and that of false implication. However, he neither examined any witness on his behalf nor got marked any documents supporting his case.
6. Following the assessment of oral and documentary evidence placed before the Sessions Court, the learned -6- NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 Sessions Judge convicted the appellant/accused for the charges levelled against him and sentenced him as stated supra. The said judgment of conviction and order of sentence is challenged in this appeal.
7. We have heard the learned counsel Sri. Girish M. Patil, for appellant and the learned Additional State Public Prosecutor Sri. Siddaling P. Patil for the respondent-State. We have also perused the records made available before us.
8. The primary contention of the learned counsel for the appellant is that the learned Sessions Judge erred while convicting the accused for the charges levelled against him without appreciating the evidence in right perspective. He further contended that the learned Sessions Judge convicted the accused solely based on Ex.P8 i.e., the purported statement given by the deceased before P.W.13-PSI at the hospital. However, there are no such evidences forthcoming on record that the injured was in a fit condition to make such statement before P.W.13. The author of the said statement i.e., P.W.13 failed to obtain the fitness certificate from the duty Doctor before recording the said statement. Hence, according to the learned counsel, much evidentiary value cannot be attached to -7- NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 Ex.P8. He further contended that P.W.4 the eyewitness to the incident totally turned hostile to the prosecution case. Though the prosecution relied on the evidence of P.W.5 to P.W.8, among them P.W.5 and 8 are the hearsay witnesses to the prosecution case. According to them, they learnt about the incident through P.W.7 who admitted the injured to the hospital. However, according to P.W.7, he reached the spot after the incident and shifted the injured to the hospital by an ambulance. In such circumstances, the evidence of these witnesses are insufficient to prove the charges levelled against the accused.
9. The learned counsel further contended that there are serious discrepancies in the evidence of P.W.5 to P.W.8 about the mental and physical harassment meted out by the accused to the deceased before the incident. Further, in Ex.P8- complaint it was enumerated that, the accused poured kerosene on the deceased which was stored in a bottle. However, the prosecution seized a plastic can from the spot and the same was sent for FSL, this surfaces doubt in the genesis of the crime. The learned counsel also submitted that the respondent-Police failed to make any attempt to record the -8- NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 statement of the victim injured in the hospital where she was admitted for higher treatment at Latur for a period of 18 days i.e., till her death on 21.09.2015. In such circumstances, the prosecution case is unreliable and unbelievable. He also contended that the learned Sessions Judge erred by sentencing the accused for reminder of his life, thereby the Sessions Court traversed beyond their jurisdiction in exercising power while rendering the judgment as this power is not vested with the Sessions Court as laid down by the Hon'ble Apex Court in passing such an order. Accordingly, he prays to allow the appeal by setting aside the impugned judgment.
10. Alternatively, he contended that, even on considering the entire evidence on record this case squarely falls within the ambit of Exception 1 to Section 300 of IPC which is punishable under Section 304 Part-I or II of IPC, as the entire incident occurred at the spur of moment when the accused lost self-control upon grave and sudden provocation following the row between him and the deceased. To buttress his arguments, he relied on the following judgments:
1. Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh (Crl.Apl.No.64-65 of 2022; Judgment -9- NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 delivered by the Hon'ble Supreme Court of India on dated 13.10.2022)
2. Rajesh @ Anr. Vs. State of Madhya Pradesh (Crl.Apl.No.793-795/2022; Judgment delivered by the Hon'ble Supreme Court of India on dated 21.09.2023)
3. Matru @ Girish Chandra vs. State of Uttar Pradesh (Diary No.6033/1968; Judgment delivered by the Hon'ble Supreme Court of India on dated 03.03.1971)
4. State of Rajasthan Vs. Wakteng (Crl. Apl. No. 677 of 2002; Judgment delivred by the Hon'ble Supreme Court of India on dated 07/06/2007).
5. Mavila Thamban Nambiar Vs. State of Kerala (Judgment of the Hon'ble Supreme Court of India on dated 09/01/1997).
6. Dattatraya Gawali Vs. State of Maharashtra (Judgment of the Hon'ble Supreme Court of Crl.Apl.No.666/2012). India on dated 01/02/2024 in Crl.Apl.No.666/2012).
7. K. Ramachandra Reddy and Another Vs. The Public Prosecutor (Judgment of Hon'ble Supreme Court of India, delivered on dated 05/05/1976).
8. Mahadev Singh Vs. The State through Wadi Police Station (Judgment of Hon'ble High Court of Karnataka, Kalaburgi Bench in Crl.Apl.No.200033 of 2023 on dated 22/06/2024).
9. Union of India vs. V. Sriharan @ Murugan (Crl.Apl.No.1215/2011) decided on 02.12.2015 by the Hon'ble Apex Court.
10. Ravinder Singh Vs. The State Govt. of NCT of Delhi (Crl.Apl.No.1031/2023 decided on 25.04.2023 by Hon'ble Apex Court)
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11. Narendra Singh @ Mukesh @ Bhara vs. State of Rajasthan (SLP (Crl.) Nos.7830/21 decided on 28.02.2022 by Hon'ble Apex Court)
12. Gaurav Rana @ Kala vs. State of Haryana (Crl.Apl.No.444/2021 decided on 11.08.2021 by Hon'ble Apex Court)
13. Sharafat Ali vs. State of U.P. & Anr. (W.P. (Crl.) No.439/2021 decided on 10.02.2022 b Hon'ble Apex Court)
14. Crl.Apl.No.557/2016 (Ravi vs. State of Karnataka) decided on 23.03.2021 by Hon'ble High Court of Karnataka, Bengaluru.
11. Refuting the above submissions of the learned counsel for the appellant, Sri Siddaling P. Patil, the learned Addl. SPP submitted that the judgment does not suffer from perversity or illegality since the learned Sessions Judge has convicted the accused after meticulously examining the evidence available on record in a well-reasoned judgment. He also contended that the prosecution has placed sufficient material to prove the charges levelled against the accused. Ex.P8 is the complaint given by the deceased herself in the hospital soon after the incident before P.W.13. The contents of Ex.P8 clearly corroborate with the evidence of P.W.5 to P.W.8. Moreover, the evidence of P.W.7 who is the brother-in-law of the deceased clearly reveals that after the incident, the injured
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 called him and informed that the accused had set her ablaze. Immediately, he rushed to the spot, where she narrated the incident to him and he admitted her to the Government Hospital at Bhalki. Thereafter, her statement was recorded by P.W.13. Nevertheless, the parents of the deceased P.W.5 and P.W.6 have clearly deposed that the accused, after marrying their daughter-Mukta, harassed her both physically and mentally by placing monetary demands before her to gratify his vices. According to the learned Addl. SPP, the injured had survived for a period of 18 days after recording of Ex.P8. In such circumstance, it cannot be said that the injured was not in a fit condition to give statement as per Ex.P8. He contended that the minor contradictions in the evidence of material witnesses do not go to the root of the prosecution case. Hence, according to him, the learned Sessions Judge has rightly convicted the accused and accordingly, he prays to dismiss the appeal.
12. Having heard the learned counsel for the respective parties, so also having perused the entire evidence and the documents placed before us, the points that arise for our consideration are:
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 i. "Whether the judgment under this appeal suffers from perversity or illegality?
ii. Whether the learned Sessions Judge is justified in convicting the accused for the offences punishable under Sections 302 and 498-A of IPC?"
13. In the instant case, albeit the prosecution examined 14 witnesses to prove the charges levelled against the accused, it is redundant to delve into the nitty gritty of individual evidence of all witnesses, it is sufficient to appreciate the evidence of material witnesses.
14. In order to prove the homicidal death of the deceased Mukta in this case, the prosecution has relied on Ex.P13 the postmortem report which was marked in the evidence of the Investigating Officer with consent of the defence. Further, the prosecution also relied on the evidence of P.W.10-Doctor who initially treated the injured and the case sheet i.e., Ex.P6. On perusal of Ex.P13 the postmortem report the cause of death was stated as "septicemic shock due to burn". On perusal of Ex.P-6 the case sheet placed by P.W.-10, also mentions that the deceased sustained burn injuries about 35%. Apart from these materials, the prosecution also relied
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 on the inquest panchanama drawn on the corpse of the deceased as per Ex.P5 by P.W.12 the Investigating Officer. P.W.7 is the witness for the same. Both P.W.7 and P.W.12 have identified the burn injuries on the corpse of the deceased. Nevertheless, the prosecution also placed Ex.P15 the case sheet of deceased maintained by the hospital at Latur. On perusal of Ex.P15 further revealed that the deceased was treated for burn injuries for a period of 18 days and thereafter, she succumbed. In such circumstances, we are of the considered view that the prosecution has proved the homicidal death.
15. To connect the accused for the homicidal death of the deceased, the prosecution predominantly relied on Ex.P8- the statement made by the deceased soon after the incident i.e., on 02.09.2015 before P.W.13 in the Government Hospital at Bhalki. On careful perusal of Ex.P8, the deceased stated that, following her wedding with the accused she learnt that the accused was an addict who consumed liquor on everyday basis and picked row with her demanding money. On 02.09.2015 at about 7.00 p.m., he came to the house inebriated and thereafter, had a row with her and verbally abused her. When
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 she advised him not to indulge in such acts, out of the blue he grabbed a kerosene bottle, poured it on her and set her ablaze. Owing to this she sustained burn injuries. P.W.4 her mother-in- law was an eye-witness to the incident. Later, the deceased informed P.W.7-her brother-in-law over a phone call about the incident, in turn he visited the house and admitted her to a Government Hospital. Though the said statement of the deceased was recorded by P.W.13 without obtaining the fitness certificate from the duty Doctor, nevertheless P.W.13 has deposed that she was very much conscious and in a lucid state of mind while narrating the incident. Further, it could be gathered from the records that the deceased had sustained 35% burn injuries and that she was conscious. It is pertinent to mention that the evidence of P.W.13 reveals that he obtained the permission from the duty Doctor to record Ex.P8.
16. Further, the contents of Ex.P-8 clearly corroborates with the evidence of P.W-7 who admitted the injured to the hospital. According to him, immediately after the incident, he visited the house and the injured informed him about the act perpetrated by the accused. The narration of incident by the injured to P.W.7 and P.Ws.5, 6 and 8 who have visited the
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 hospital on the same night at about 1.00 a.m., clearly corroborates with the contents of Ex.P8. P.Ws.5, 6 and 8 have categorically deposed in their evidence that in the hospital the deceased informed them about the harassment meted out by the accused and also about the incident on 02.09.2015. Further, according to them, the injured was very much conscious at the time. Moreover, P.W.5 to P.W.8 have also deposed that ever since the deceased was married to the accused, the accused harassed her physically and mentally by demanding money.
17. It is vehemently argued by the learned counsel for the appellant that the prosecution has failed to place any material evidence to establish that the victim was in a lucid state to give statement as per Ex.P8 and also to make oral statements before P.W.5 to P.W.8. On perusal of evidence of P.W.13 the scribe of Ex.P8, it reveals that the injured was conscious at the time of deposing her statement and he also took permission from the Doctor to record such statement. Admittedly, the deceased had succumbed to the injuries after 20 days from the date of incident. In such circumstances, there
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 is no reason to doubt the credibility of the deceased's statement and also her oral statements to P.Ws.5 to 8.
18. We are aware of the position of law that, if conviction is based on dying declaration of the deceased, the same has to be appreciated with due care. The judicial theory regarding the acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the mouth of death, where every hope of this world is waning and when every motive to falsehood is silenced, the man is induced by the most powerful consideration to speak truth alone. Notwithstanding the same, great caution must be exercised in considering and adducing weightage to such declarations. The Hon'ble Apex Court in the case of Laxman vs. State of Maharashtra1 held in paragraph No.3 as under:
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which 1 (2002) 6 SCC 710
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-
examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
19. On perusal of the findings of the Hon'ble Apex Court in the above judgment, a certification by the Doctor while recording the statement of injured is essentially a rule of caution and therefore, the voluntary and truthful disposition of the declaration can be established otherwise. Moreover, there is no such hard and fast rule that while recording the declaration of either the deceased or injured, the said statement must be recorded by the Magistrate or Tahsildar and the Doctor must be present at that time. In the case on hand, as stated supra, the statement of the injured was recorded soon after the incident, and there is no such chance of tutoring the injured by any of the witnesses or by the Police. Hence, the aspect that has to be borne in mind is whether the injured was conscious at the time of making such a declaration.
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20. In the case on hand, on perusal of the contents of Ex.P8, the evidence of P.W.13 and the evidence of P.W.5 to P.W.8 and Ex.P15 i.e., the case sheet maintained by the hospital authorities till the death of the injured, we are of the view that the injured was conscious and in a lucid state at the time of making the declaration-Ex.P8.
21. Nevertheless, the evidence of P.W.5 to P.W.8 also corroborate with the contents of Ex.P8. Though the defence cross-examined these witnesses at length, nothing worthwhile was elicited from them to discard their testimony. Even otherwise, the defence has failed to put forth any defence to prove the reason for false implication of the accused. Admittedly, the incident occurred at the matrimonial house of the deceased. The accused being the husband, is duty bound to explain and adduce reasons for the homicidal death of the deceased in his house, since the said aspect is within his knowledge exclusively as stipulated under Section 106 of the Indian Evidence Act. Should the accused fail to assign any such coherent explanation, the Court can presume the accused as perpetrator as per the provisions stipulated under Section 114 of the Indian Evidence Act.
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22. In the instant case, the defence of the accused is that the deceased had an extra marital affair with P.W.7 who is none other than her brother-in-law. When the accused confronted with the deceased she committed suicide by pouring kerosene and setting herself ablaze. However, to prove the said defence, the accused has not examined any witness. Nevertheless, P.W.8 being the wife of P.W.7 categorically denied such allegations by the accused. On perusal of the evidence of P.W.5 to P.W.8, we are of the considered view that the defence of the accused is not probable one, as such, he failed to explain the circumstances of the homicidal death of the deceased in his house on the fateful day.
23. It is also contended by the learned counsel for the accused that the eyewitness P.W.4 turned hostile. Admittedly, she being the mother of accused might have turned hostile to shield the accused from the offence. However, that itself is not a ground to discard the evidence of other material witnesses P.W.5 to P.W.8. Further, the minor contradictions in the evidence of material witnesses do not go to the root of the prosecution case.
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24. The Hon'ble Apex Court in the case of Mallikarjun and Ors. vs. State of Karnataka2 has held that the minor contradictions in the evidence of material witnesses itself is not a ground to discard their testimony. Further, the Hon'ble Apex Court held that while appreciating the evidence of a witness, the approach must be to assess whether the evidence of a witness read as a whole appears to be truthful. Once the impression is formed, it is necessary for the court to evaluate the evidence and the alleged discrepancies and then, to find out whether it is against the general tenor of the prosecution case. If the evidence of eye witness is found to be credible and trustworthy, minor discrepancies which do not affect the core of the prosecution case, cannot be made a ground to doubt the trustworthiness of the witness.
25. Further, it is also contended by the learned counsel for the appellant that, P.W.5 to P.W.8 are the close relatives of the deceased, they are the partisan witnesses to the prosecution case, as such their evidence cannot be relied to convict the accused. However, the Hon'ble Apex Court in the 2 (2019) 8 SCC 359
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 case of Ravasaheb @ Ravasahebgouda etc. vs. State of Karnataka3 held in paragraph No.17 as under:
"17. "It is clear that it is the quality and not the quantity of the witnesses that matters. Further in Paragraph No.25 of the said judgment, it is stated that "a witness being a close relative is not a ground enough to reject his/her testimony. Mechanical rejection of an even "partisan" or "interested" witness may lead to failure of justice. The principle of "falsus in uno, falsus in omnibus" is not one of the general applications".
26. As per the findings of the Hon'ble Apex Court in the above case, it is clear that the evidence of the material witnesses cannot be discarded merely on the ground that they are relatives of the deceased.
27. In such circumstances, on overall re-appreciation of the evidence available on record, we are of the considered view that the prosecution has proved the accused as the perpetrator of the crime and he is responsible for the homicidal death of the deceased.
28. Coming to the alternative submission by the learned counsel for the appellant that this case falls within the ambit of Exception-1 to Section 300 of IPC, on careful perusal of the 3 2023 LiveLaw (SC) 225
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 evidence available on record including Ex.P8, the complaint was lodged by the deceased herself, it could be seen that the accused being the husband was a habitual alcoholic and on the fateful day he returned home at about 7.00 p.m. inebriated and out of the blue he picked a row demanding money to consume more liquor. When the deceased advised him to quit his vices; enraged by the same, he poured kerosene on her and set her ablaze with the aid of a chimney lamp. While interpreting Exception 1 to Section 300 of IPC, the Hon'ble Apex Court in the case of DAUVARAM NIRMALKAR VS. STATE OF CHHATISGARH reported in 2022 SCC OnLine SC 955 held in paragraph Nos.8, 9, 10, 12 and 13 as under.
"8. However, in our opinion, this case will fall under Exception 1 to Section 300 of the IPC8. Bhagwati Prasad Nirmalkar (PW-3), the younger brother of the appellant and the deceased, had deposed that the deceased used to frequently drink alcohol, barely interacted with the family, and used to debate and quarrel with the appellant. Nakul Ram Sahu (PW-4), the neighbour of the appellant, had similarly testified that the deceased was addicted to alcohol and his wife had left him. Dashrath Nirmalkar's addiction to alcohol, and that he was extremely abusive and ill-tempered is the common narration by Geeta Bai (PW-8), wife of Bhagwati Prasad Nirmalkar (PW-3), and Kumari Shanti Nirmalkar (PW-9), and Kumari Madhu Nirmalkar (PW-10), nieces of the appellant and Dashrath Nirmalkar. The prosecution does not dispute this
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 position and in fact, has relied upon these facts to show motive.
9. Exception 1 differs from Exception 4 of Section 300 of the IPC9. 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.
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 selfcontrol; 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:
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 "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 certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 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."
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
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim's abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.
13. Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused's 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
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 that act - can be neither understood nor evaluated without reference to previous dealings between the parties."
29. In the said case, the Hon'ble Apex Court held for clarity that it must be stated that the prosecution must prove guilt of the accused, i.e., it must establish all the ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden of the accused for providing that the case falls within an Exception. However, to discharge his burden, the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the Court.
30. It is in this context we would refer to the case of the prosecution. In the case on hand as discussed supra, by perusal of the evidence of PWs.5 to 8, the witnesses before whom the deceased deposed about incident that on the fateful day the accused came to house by consuming alcohol and picked up a row with her. When she resisted him by advising him, the incident caused suddenly on a spur of moment. The accused neither had intent nor knowledge to murder the deceased. The same is gathered by perusal of medical reports of the injured where it is enumerated that the injured had
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 sustained 35% of burn injuries and she survived collectively for a period of 20 days. Finally, she succumbed due to septicemia in the Government Hospital. One of the reasons could be gathered that lack of proper medical care might have resulted in her demise. In such circumstances, we hold that appellant/accused perpetrated the crime out of the blue upon sudden provocation and owing to loss of self-control on an account of "slow burn reaction followed by the final and immediate provocation". Applying the provocation Exception, we convert the conviction of appellant from Section 302 to Section 304 Part I of IPC.
31. The Hon'ble Apex Court in the case of State of Andhra Pradhesh vs. Rayavarapu Punnayya and Another reported in AIR (1977) SC 45, held that in clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and if overlooked, may result in miscarriage of justice. The difference
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 between clause (b) of Section 299 and clause (3) of Section 300 is one of the degrees of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of "probable" as distinguished from a mere possibility. The words "bodily injury .... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.
32. As discussed supra, since the deceased had sustained 35% burn injuries and survived for a period of 20 days following the incident and that her death was due to septicemia, inference could be gathered, that the degree of probability of death was lowest and the act of the accused falls within the ambit of Exception 1 to Section 300 of IPC which is punishable under Section 304 Part I of IPC.
33. However, the sentence imposed by the Sessions Court for the offence punishable under Section 498-A of IPC is just and proper for the reasons discussed supra.
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34. On perusal of the impugned judgment passed by the Sessions Court, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo life imprisonment till his last breath. This sentence imposed by the learned Sessions Judge is not sustainable under law as per the law laid down by the Hon'ble Apex Court in the case of Union of India vs. V. Sirharan @ Murugan & Ors.4 held that awarding of special category sentence, in substitution of death sentence, that is, sentence barring remission under Cr.P.C. for specified term beyond 14 years, or life imprisonment barring remission for rest of life is valid. It is clarified that however power under Articles 72 and 161, which is not the same as the statutory power of remission, is not affected. Award of non-remittal specified sentence or life imprisonment barring remission for rest of life, held, not violative of separation of powers. Such special sentence when imposed under substantive provisions of IPC, does not overlap procedural power under Cr.P.C. on considering crime situation in India (particularly nexus between hardened criminals and ill-gotten wealth and nature of heinous crimes on the rise), delay in disposal of cases, and balancing 4 (2016) 7 SCC 1
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 interest of victims with those of convicts, such special category sentence becomes inevitable. Further it was held that such special category sentence can only be invoked by High Courts or Supreme Court and not by Sessions/trial Courts. In such circumstances, the said sentence imposed by the Sessions Court is not sustainable under law.
35. For the foregoing reasons, the appeal partly succeeds and we answer point No.(i) in the negative and point No.(ii) partly in the affirmative and proceed to pass the following:
ORDER i. The appeal is allowed in part.
ii. The judgment of conviction and order on sentence dated 21.08.2021 passed by the Additional District and Sessions Judge at Bidar in S.C.No.102/2016 is modified from the offence punishable under Section 302 of IPC to the offence punishable under Section 304 Part-I of IPC.
iii. The accused is sentenced for a period which he has already undergone i.e., 9 years 4 months 17 days as on the date. Additionally, he shall pay a fine of Rs.2,00,000/- [Rupees Two Lakh Only], before the Sessions Court, in default of payment of
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NC: 2025:KHC-K:461-DB CRL.A No. 200207 of 2022 fine, he shall undergo simple imprisonment for a period of two years for the offence punishable under Section 304 Part-I of IPC.
iv. The sentence imposed by the Sessions Court for the offence punishable under Section 498-A of IPC is kept intact.
v. On depositing the fine amount or undergoing the default sentence, the appellant/accused shall be released, if he is not required in any other case.
vi. If the fine amount is deposited by the appellant/accused before the Sessions Court, the learned Sessions Judge is directed to intimate the same to P.W.5 and P.W.6 the parents of the deceased and disburse the same to them equally on due identification.
Sd/-
(S.SUNIL DUTT YADAV) JUDGE Sd/-
(RAJESH RAI K) JUDGE HKV,VGR,SWK List No.: 1 Sl No.: 39 CT: PS