Karnataka High Court
Sri.Babu Parashuram Talawar vs State Opf Karnataka on 18 January, 2024
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NC: 2024:KHC-D:1095-DB
CRL.A No. 100033 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100033 OF 2020 (C)
BETWEEN:
1. SRI.BABU PARASHURAM TALAWAR
AGE: 34 YEARS, OCC: COOLIE,
R/O: KALAPPA GALLI, AT: KALYANATTI,
TQ AND DIST: BELAGAVI-590001.
2. SRI.BASAVANNI PARASHURAM TALWAR
AGE: 25 YEARS, OCC: COOLIE,
R/O: KALAPPA GALLI, AT: KALYANATTI,
TQ AND DIST: BELAGAVI-590001.
(APPELLANTS NOS. 1 AND 2 ARE UNDERGOING
SENTENCE AS CONVICT AT CENTRAL JAIL,
HINDALGA, BELAGAVI)
Digitally signed ...APPELLANT
by
SHIVAKUMAR
HIREMATH (BY SRI. ASHOK R. KALYANSHETTY, ADVOCATE FOR A1;
Date:
2024.02.19
SRI RAMESH N. MISALE, ADVOCATE FOR A2)
14:58:40 +0530
AND:
STATE OF KARNATAKA
(BELAGAVI RURAL POLICE)
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL'S OFFICE,
HIGH COURT OF KARNATAKA PREMISES,
DHARWAD BENCH, DHARWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP., ADVOCATE)
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NC: 2024:KHC-D:1095-DB
CRL.A No. 100033 of 2020
THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 08/05/2019 AND ORDER OF SENTENCE DATED
09/05/2017 PASSED BY THE XI ADDL. SESSIONS JUDGE,
BELAGAVI, IN S.C. NO.220/2017 AND ACQUIT THEM OF THE
CHARGE PUNISHABLE UNDER SECTIONS 302, 447 AND 504
IPC ALL R/W 34 OF IPC. IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, RAJESH RAI K. J., DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the appellants would call-in-question the legality and the validity of the Judgment of conviction and order of sentence passed in S.C.No.220/2017 dated 08.05.2019 by the XI Additional Sessions Judge, Belagavi at Belagavi, wherein, the learned Sessions Judge convicted the appellant/accused Nos.1 and 2 for the offences punishable under Sections 302, 447 and 504 read with Section 34 of Indian Penal Code and sentenced them to undergo simple imprisonment for life and shall pay a fine of Rs.10,000/- for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and in default of payment of fine they shall further undergo simple imprisonment for a period of 6 months. They are -3- NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 further sentenced to undergo simple imprisonment for 1 month for the offence punishable under Section 447 read with Section 34 of Indian Penal Code, so also are sentenced to undergo simple imprisonment for 6 months for the offence punishable under Section 504 read with 34 of Indian Penal Code and further directed that all the sentences shall run concurrently.
2. The factual matrix of the prosecution case in brief are that, the complainant-Bommani Honnappa Chennikuppi (who is examined as P.W.1) is the brother of one Raju Chennikuppi and the deceased Babu Honnappa Chennikuppi. They all were residing separately with their families at Kalyanatti, Kalappa Galli, Belagavi respectively. Their father had expired about four months back to the date of incident i.e., on 20.04.2017. The brother of the complainant Babu i.e., deceased was residing along with his family in a shed put up by him, behind their old house. As there was no bathroom or lavatory in the said shed, the deceased and his family members were using the -4- NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 bathroom of his uncle Holeppa Chennikuppi, whose house was situated besides the shed of the deceased. On 20.04.2017 at about 07.30 p.m. the daughter of deceased Babu namely Supriya was taking bath in the bathroom of Holeppa. At that time, the grand-son of Holeppa one Santosh, kept insisting her to come out from the bathroom at the earliest. Noticing the same, the deceased objected and asked Santosh as to why he was insisting his daughter to come out so quickly. At that time, one Suresh Holeppa who happens to be the uncle of Santosh came there and yelled at Babu. On coming to know the said fact, Babu Parashuram Talwar and Basavani Parashuram Talwar came to the house of the Babu Chennikuppi and enquired him as to why he was scolding Santosh and expressed their anger and also threatened the deceased Babu by stating that they would not spare him alive.
3. On the aforesaid background, on 21.07.2017 at 8.30 a.m., when P.W.1 was standing along with his brother Babu - deceased, outside his house, they saw -5- NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 Babu Talawar i.e. accused No.1 and also accused No.2 were proceeding in front of their house. At that time, P.W.1 the complainant enquired with them about the quarrel they had with his brother Babu on the previous night. Immediately, both, accused Nos.1 and 2 started to abuse the complainant. The said quarrel came to be pacified by the intervention of P.W.6 - Parashuram.
4. However, the accused Nos.1 and 2 left the place by threatening the complainant and deceased, with dire consequences. Later, after 10 minutes i.e. at about 8.40 a.m. the accused Nos.1 and 2 came to the very same place by holding sickle and the iron rod i.e., M.O.1 and M.O.2 respectively. They, in a rage of anguish, by shouting and also abusing complainant and his brother deceased - Babu proceeded to assault the deceased. At that time, Parashuram - P.W.6 caught hold accused No.2 Basavanni Talawar and requested him not to assault Babu. However, accused No.1 Babu Parashuram, went towards the deceased Babu and assaulted him with the sickle and -6- NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 caused injuries to Babu on his left hand, hip and left shoulder as an impact of which the deceased collapsed due to the pain. Posteriorly, the complainant-P.W.1, his mother and other family members rushed to spot screaming and thereby alarmed, the accused fled away from the spot. Subsequently, all of them shifted the injured to the Belgaum Institute of Medical Science, Belagavi (BIMS), and P.W.1 lodged the complaint against accused Nos.1 and 2 before the Rural Police Station, Belagavi and the same came to be registered in Crime No.95/2017 for the offences punishable under Sections 307, 447, 504, 506 read with Section 34 of Indian Penal Code, against the accused Nos.1 and 2.
5. Further, the injured Babu has undergone surgery (explorative laparotomy and spleenectomy), however, during the course of treatment, he succumbed to the injuries on 23.04.2017 in the Hospital itself. As such, Investigating Officer filed a requisition before the Jurisdictional Magistrate to convert the offence under -7- NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 Section 307 into Section 302 of Indian Penal Code in Crime No.95/2017. Accordingly, permission was granted and thereafter the Investigating Officers i.e. P.W.14 and P.W.15 completed the Investigation and P.W.15, laid the charge-sheet against the accused for the offences punishable under Sections 302, 447, 504 and 506 of Indian Penal Code on 17.07.2017 before the committal Court.
6. After committal of the case before the Sessions Court, the learned Sessions Judge framed the charges against the accused for the aforesaid offences. However, the accused pleaded not guilty and claimed to be tried.
7. In order to prove the case before the Sessions Court, the prosecution has in total examined 15 witnesses as P.W.1 to P.W.15 and got marked 37 documents as Ex.P.1 to Ex.P.37 and identified M.O.1 to M.O.7.
8. After completion of the prosecution evidence, the accused No.1 was examined under Section 313 of Cr.P.C and the accused No.1 denied all the incriminating -8- NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 evidence and stated that, as on the date of incident, they were proceeding by motorcycle to attend their work and at that time, P.W.1 and the deceased were standing outside their house and P.W.1 was holding a stick and the deceased also posses axe in his hand. When the accused passed by their house, P.W.1 pulled the accused No.2 and made him fall down. Meanwhile, the accused No.1 parked his motorcycle and noticed that, accused No.2 and P.W.1 and the deceased were quarrelling amongst themselves. Accused No.1 tried to intervene and at that time, during the tussle the deceased Babu fell down on a sharp stone on a kachcha road and sustained injuries due to the axe which he was holding in his hand. Further, accused No.1 also sustained injuries on his left hand, when the deceased Babu assaulted him with the axe. Accused No.1 further submitted, when they went to the police station, the police refused to register their complaint.
9. Post recording the 313 statement, the trial Court reframed the charges under Section 302 read with -9- NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 Section 34 of Indian Penal Code on 15.03.2019. The same was read over to the accused and the accused pleaded not guilty.
10. Pursuantly, after assessment of the oral and documentary evidence, the learned Sessions Judge framed the following points for consideration:
1. Whether the prosecution proves beyond all reasonable doubt that on 20.04.2017 sometime after 7.00 P.M. in Kalyanatti village within the limits of Belagavi Rural P.S. accused No.1 and 2 had threatened Babu Honnappa Channikuppi (deceased younger brother of complainant) with consequences as he had objected CW19 Santosh for insisting CW9-Supriya (daughter of Babu Channikuppi) to come out soon while she was taking bath and on 21.04.2017 at about 8.30 a.m. when the complainant enquired the accused about this incident while they were passing in front of his house, accused No.1 and 2 with a common intention, intentionally insulted the complainant by abusing him in vulgar language and thereby, gave him provocation knowing that such provocation would cause him to break public peace or to commit any other offence and thereby, committed the offence punishable under Section 504 r/w Section 34 of I.P.C.?
2. Whether the prosecution further proves beyond all reasonable doubt that 21.04.2017, at about 8.40 A.M., in
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 front of the house of the deceased, the accused persons with a common intention to cause death of the said Babu Channikuppi, criminally trespassed into the premises of his house being armed with sickle and iron rod and thereby, committed the offence punishable under Section 447 r/w Section 34 of 1.P.C.?
3. Whether the prosecution further proves beyond all reasonable doubt that on 21.04.2017 at about 08.40 A.M. in the course of the same transaction and in furtherance of their common intention. accused No.1 with the sickle and accused No.2 holding an iron pipe trespassed into the property of the complainant and with an intention to commit murder of deceased Babu Channikuppi and despite PW6 pleading not to quarrel and preventing accused No.2 from assaulting the deceased, accused No.1 proceeded towards the deceased Babu Channikuppi and having verbally abused him, with the words "¨ÉÆøÀr ªÀÄUÀ£ÉÃ, ¤£ÀUÉ ªÀÄÄV¹AiÉÄà ©qÀÄvÉÃÛ £É", and with the sickle assaulted the deceased Babu Channikuppi on his left side and caused grievous injuries on his left hand, left side waist and left side of the stomach and caused such grievous injuries knowing fully well that the said injuries are likely to cause the death of Babu Channikuppi and the said Babu Channikuppi due to the aforesaid injuries suffered by him, died while obtaining treatment at BIMS Hospital, Belagavi on 23.04.2017 at 11.55 P.M. and thereby, committed the offence punishable under Section 302 r/w Section 34 of IPC?
4. What order or sentence?
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11. The trial Court after appreciation of materials available on record answered point Nos.1 and 3 in affirmative and point No.4 as per final order and convicted the accused Nos.1 and 2 for the offences they were charged and accordingly, sentenced them as stated supra. The said Judgment is challenged under this appeal by both the accused Nos.1 and 2.
12. We have heard the learned counsel Sri. Ashok R. Kalyanashetty for accused No.1 and Sri. Ramesh N. Misale, learned counsel for accused No.2, so also Sri. M.B.Gundawade, learned Addl. Special Public Prosecutor for the respondent/State.
13. The learned counsels for the appellants would vehemently contend that, the impugned Judgment suffers from perversity and illegality, since the learned Sessions Judge has failed to appreciate the deposition of the prosecution witness in a right perspective for the reason that, though the eyewitness supported the case of the prosecution, their evidence suffers from serious infirmities
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 and inconsistencies when seen along with allegations levelled in the complaint. They would further submit that, the evidence of P.W.1 and P.W.6 could not be relied on, as they are close relatives of the deceased and having previous enmity and grudge against the accused and are interested in falsely implicating the accused. The learned counsels would also submit that the medical evidence belies the version given by the eyewitnesses regarding the injuries caused to the deceased. They would further submit that, the learned Sessions Judge totally disbelieved the probable defence put forth by the accused during the course of their statements as under Section 313 of Cr.P.C. The learned Sessions Judge placed much reliance on Ex.P.33 i.e. the alleged dying declaration/statement of the deceased which is said to have been recorded during the course of his treatment at BIMS Hospital, Belagavi on 22.04.2017 by P.W.14 the P.S.I. and to that effect a certificate has been issued by P.W.8 as per Ex.P.10. On careful reading of Ex.P.10 and Ex.P.33 - the statement, they clearly depicts that both these documents were
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 concocted by the respondent-Police after the death of the deceased. Furthermore, they also contend that the evidences tendered by P.W.14 and P.W.10 the Doctor does not inspire any confidence about the truthfulness of Ex.P.10 and Ex.P.33.
14. The learned counsel for the accused No.2 contends that, neither in the First Information Report nor in the evidence of P.W.1 and P.W.6, the act committed by the accused No.2 is forthcoming. The accused No.2 was not at all present at the scene of occurrence. Moreover, the Doctor who conducted the Post-Mortem report as per Ex.P.13 deposed that, there is no contusion wounds caused to the deceased by M.O.2 - Iron rod, which is said to have been used by the accused No.2. As such, the participation of the accused No.2 in the alleged crime is totally doubtful. Accordingly, he prays to acquit the accused No.2 from the charges.
15. The counsel for accused No.1 alternatively contended that, this case squarely falls under the
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 provisions of exception I to Section 300 of Indian Penal Code which is punishable under Section 304 Part II of Indian Penal Code instead of Section 302 of Indian Penal Code for the reason that the alleged incident caused due to sudden fight that arose between the family of the accused and the deceased in a spur of moment and the accused had no such preparation or intention to commit the murder of the deceased. There was also no premeditation on the part of the accused to commit such crime. During the course of altercation between the family, accused No.1 brought the weapon and assaulted the deceased without any intention to take away his life. Moreover, he submits that accused No.1 has caused single blow on the body of the deceased and deceased has died after three days from the date of incident i.e., on 23.04.2017 to the incident caused on 21.04.2017 during the course of treatment in the Hospital. Hence, intention cannot be gathered from the act of the accused. At the most, it can be said that the accused had knowledge that, such injuries caused by him could cause the death of the
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 deceased. In such circumstances, this case squarely falls under Section 300 Part I of Indian Penal Code which is punishable under Section 304 Part II of Indian Penal Code. Accordingly, he prays to allow the appeal or to modify the sentence.
16. Refuting the above submission, the learned Addl. SPP vehemently contends that, the Judgment under this appeal does not suffer from any perversity or illegality and the learned Sessions Judge has rightly passed the Judgment after considering the evidence available on record. More particularly the evidence of P.W.1 i.e., the brother of the deceased, P.W.5 the daughter of deceased and P.W.6, who are the eyewitnesses to the incident, have categorically deposed about the assault made by the accused Nos.1 and 2 to the deceased. He also contends that, the prosecution proved the dying declaration of the deceased Babu recorded in the BIMS Hospital as per Ex.P.33 by P.W.14-PSI. Before recording the said statement, P.W.8 the Doctor certified that the injured was
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 in a fit condition to give statement as per Ex.P.10. Hence, he submits that the prosecution has proved the case beyond reasonable doubt against the accused. Accordingly, he prays to dismiss the appeal.
17. Having heard the learned counsel for the appellants/accused Nos.1 and 2, and the learned Addl. SPP so also on perusal of the evidences and documents placed before us including the trial Court record, the points that would arise for our consideration are :
(i) Whether the Judgment under this appeal suffers from any perversity or illegality?
(ii) Whether the learned Sessions Judge is justified in convicting the accused No.1 and accused No.2 for the offence punishable under Section 302 read with Section 34 of Indian Penal Code, Section 447 read with Section 34 of Indian Penal Code and Section 504 r/w Section 34 of Indian Penal Code?
18. For the sake of convenience both these above points are taken together for consideration. This Court being the appellate Court is bound to appreciate the material evidences made available on record, accordingly, on re-appreciation of the evidences available on record.
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 P.W.1-Sri. Bommani Honnappa Chinnikuppi; is the brother of the deceased Babu in this case and is an eyewitness to the incident. He lodged the complaint as per Ex.P.1 before the respondent-police after the incident. He deposed that, on 21.04.2017 himself and his brother were near their house, the accused Nos.1 and 2 came there by holding M.O.1 and M.O.2 and accused No.1 assaulted the deceased Babu on his left hand and left part of abdomen. Accused No.2 was prevented from assaulting by P.W.6. After the incident, both the accused fled away from the spot. Subsequently, himself and P.W.6 shifted the injured to the BIMS Hospital and the Doctor treated him. On 23.04.2017, the deceased succumbed to the injures in the Hospital.
P.W.2-Laxman Naik is a panch witness to the spot mahazar at Ex.P.6 and he identified his signature on Ex.P.6 and also the photographs at Ex.P.2.
P.W.3-Sri. Kallappa Waghamode is also a panch witness to Inquest panchanama at Ex.P.7, he identified his
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 signature on Ex.P.7 and the photographs of the dead body at Ex.P.3 and Ex.P.4.
P.W.4-Sri. Basappa Bannur is also a panch witness for Ex.P.8 i.e. the seizure of sickle and iron rod i.e. M.O.1 and M.O.2 respectively. He is also a panch witness to Ex.P.9 i.e. seizure of clothes belongs to the deceased at M.O.3 to M.O.6.
P.W.5-Supriya who is the daughter of the deceased Babu, deposed about the motive for the incident, that the accused committed the crime for the reason, on 20.04.2017 when she was taking bath at the house of P.W.7, he called her out repeatedly, annoyed by the same her father told him to wait for a while, on that count the accused quarrelled with her father on 21.04.2017 and accused No.1 assaulted her father with sickle and accused No.2 was holding iron rod M.O.2.
P.W.6-Sri. Parashuram Talwar is an independent eyewitness. According to him, on the date of incident at about 8.45 a.m. accused and deceased quarrelled near the
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 shed house of the deceased, when P.W.1 enquired about the incident occurred on the previous night. However, he pacified the quarrel. Thereafter, though he held back accused No.2, accused No.1 proceeded to assault the deceased with the sickle M.O.1. Due to the assault, the deceased sustained severe injuries. Later, himself and P.W.1 shifted the injured to BIMS hospital where the deceased succumbed to the injures on 23.04.2017.
P.W.7-Sri. Santosh Chinnikuppi who is an circumstantial witness turned hostile to the prosecution case.
P.W.8-Dr. Kiran Kumar, issued Ex.P.10 by certifying that the injured Babu was in a fit condition to give statement.
P.W.9-Sri. Mallappa Rudrapur, the then Head constable of the respondent-Police who carried the First Information Report at Ex.P.11 from the Station to the jurisdictional Magistrate.
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 P.W.10-Dr. Pushpa M.G. conducted Autopsy over the dead body of the deceased and issued post-mortem report as per Ex.P.13. She also given her opinion on M.O.1 that the injuries found on the dead body could be caused by M.O.1.
P.W.11-Dr. Mahadeshwar Swamy the Assistant Director of RFSL issued FSL report as per Ex.P.20 and deposed that, the item sent for chemical examination i.e. clothes of the deceased and M.O.1 are stained with the human blood.
P.W.12 Dr. Deepak D.G., who treated the deceased at the earliest point of time and issued the Wound Certificate as per Ex.P.22.
P.W.13 Sri. Sharathkumar Khanapure, the then Head Constable handed over the clothes and weapons to the RFSL.
P.W.14 Sri. Arjun Hanchinamani, the then PSI who registered the case in Crime No.97/2017 as per Ex.P.11
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 based on the complaint lodged by P.W.1 as per Ex.P.1. He arrested the accused, so also drawn the rough sketch of the spot. After the death of the deceased, based on the permission obtained from the learned Magistrate, invoked the Section 302 of Indian Penal Code in place of Section 307 of Indian Penal Code.
P.W.15 Sri. Narayanaswamy, the then CPI of the respondent-Police conducted the investigation in this case and after recording the statement of all the witnesses, so also after obtaining necessary documents from the concerned authorities, laid the charge-sheet against the accused for the aforesaid offences before the committal court.
19. On careful perusal of the above evidence available on record, in order to prove the homicidal death of the deceased, the prosecution mainly relied the evidence of P.W.10 Doctor who conducted Autopsy over the dead body and issued Post-Mortem report as per Ex.P.13. On perusal of the Post-Mortem report, the Doctor
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 opined that the cause of death is due to complications of penetrated injury sustained to the abdomen, internal injury by M.O.1 i.e., sickle. The said evidence of the Doctor corroborates the evidence of P.W.12-Doctor Deepak D.G, who examined the injured at the earliest point of time and issued Wound Certificate as per Ex.P.22. Further the Investigation officer drawn the inquest panchanama on the dead body of the deceased as per Ex.P.7. P.W.3 is the witness for Ex.P.7 and identified the injuries on the dead body, so also his signature on Ex.P.7. Hence, on conjoint reading of Ex.P.13, Ex.P.22 and Ex.P.7 coupled with the evidence of P.W.12 and P.W.3, respectively, in our considered view, the prosecution has proved the homicidal death of the deceased beyond reasonable doubt.
20. In order to connect the accused for the homicidal death of the deceased, the prosecution mainly relied on the evidence of P.W.1, P.W.5 and P.W.6 who are the eyewitnesses to the incident. Among these witnesses,
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 P.W.1 is the brother of the deceased who lodged the complaint soon after the incident. In his evidence, he categorically deposed that, on the date of incident accused Nos.1 and 2 came to their house and accused No.1 was holding sickle and accused No.2 was holding iron rod i.e. M.O.1 and M.O.2 respectively, and they quarrelled with the deceased and all of a sudden accused No.1 assaulted the deceased with the sickle on his stomach, as P.W.6 estopped the accused No.2 from inflicting any injury. Thereafter, both the accused fled away from the spot. This evidence of P.W.1, is supported by P.W.5 the daughter of the deceased, so also P.W.6 who is an independent eyewitness. Though the learned defence counsel has cross-examined these witnesses at length nothing worthwhile has been elucidated from their mouth to discard their evidence. Further, P.W.1 has lodged the complaint soon after the incident on 21.04.2017 at about 1.30 p.m. On perusal of Ex.P.1 complaint, P.W.1 narrated the incident per verbatum as per Ex.P.1. As far as the participation of accused No.2 in the incident is concerned,
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 in the complaint i.e. Ex.P.1 it is stated that accused No.2 was present in the scene of occurrence however P.W.6 has estopped him from assaulting and accused No.1 alone assaulted the deceased with the sickle. Even in the evidence of P.W.1 and P.W.6 the said aspect is forthcoming. Though the presence of the accused No.2 in the scene of occurrence is deposed by P.W.1 and P.W.6, P.W.1 has profoundly stated that P.W.6 caught hold accused No.2 and thereafter accused No.1 alone assaulted the deceased. In such circumstance, the participation of accused No.2 in the incident creates a doubt in the prosecution case.
21. However, as discussed supra, the assault made by the accused No.1 to the deceased is concerned, the prosecution placed cogent evidence of the independent eyewitnesses. The prosecution also proved the recovery of weapon M.O.1 under seizure mahazar Ex.P.8. P.W.4 the witness for the same supported the case of the prosecution. Moreover, the Doctor who conducted the
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 Post-Mortem examination as per Ex.P.13, gave his opinion that the injury sustained by the deceased could be caused as a result of assault with M.O.1-sickle. P.W.12 the Doctor who treated the deceased at the earliest point of time, also gave an opinion that, injuries mentioned in Ex.P.22- Wound Certificate might have been caused by the weapon i.e. sickle-M.O.1, which is used by accused No.1. In such circumstance, the ocular testimony of the material witness corroborates with the medical evidence.
22. The prosecution also placed reliance on Ex.P.33 i.e. the oral declaration/statement made by the deceased to P.W.14-the then P.S.I. while he was under treatment at BIMS Hospital. P.W.8-Doctor issued Ex.P.10 and certified that the injured Babu was in a fit condition to give statement. On perusal of Ex.P.33, according to the prosecution the same was recorded on 22.04.2017 i.e. one day prior to the death of the deceased post surgery being conducted to him. In the cross-examination of P.W.14, it reveals that, the injured was in ICU and as such he neither
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 made any attempt to obtain the signature of the injured on Ex.P.33 nor obtained the consent of Duty Doctors on Ex.P.33. Moreover, on perusal of Ex.P.33, which runs five pages, in a format of statement, that too allegedly recorded inside the ICU without the permission or consent of the Doctors cannot be believed and also the same has not recorded as per the law laid down by the Hon'ble Apex Court in the case of Irfan v. State of U.P., reported in 2023 SCC OnLine SC 1060, wherein, the Hon'ble Apex Court in Paragraph No.62 has held as under:
"62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility:-
(i) Whether the person making the statement was in expectation of death?
(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"?
(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?
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(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has been consistent throughout?
(viii) Whether, the dying declaration in itself is a manifestation /fiction of the dying person's imagination of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?
23. Hence, as per the dictum laid down by the Hon'ble Apex Court in the above Judgment, we are of the view that the alleged dying declaration relied by the prosecution cannot trustworthy to believe as the same has not withstood the test of credibility as propounded by the Hon'ble Apex Court. Nevertheless, the other available evidence of P.W.1, P.W.5 and P.W.6 as discussed supra inspire the confidence of this Court since the same corroborates with the medical evidence. In such circumstance, we are of the considered view that the learned Sessions Judge has rightly drawn the inference in
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 respect of the accused No.1 for the commission of the crime.
24. As far as the accused No.2 is concerned, as discussed supra, the evidence of the witnesses i.e. P.W.1, P.W.5 and P.W.6 they have categorically deposed that, the accused No.1 only assaulted the deceased with the sickle and accused No.2 was held by P.W.6 at the time of incident. Further, the contents of Ex.P.1 also corroborates with the evidence of these witnesses in respect of non- participation of accused No.2 in the crime. As discussed supra, the oral declaration made by the deceased does not inspire the confidence of this Court, there is no such other incriminating evidence available on record against the accused No.2 in this case. Nevertheless, the Doctor who conducted the autopsy and P.W.12 who treated the injured categorically deposed that, there is no such contusion injury over the body of the deceased. The Doctor even admitted the suggestion put forth by the defence counsel that the injuries found on the body of the deceased could
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 not have been caused by M.O.2 i.e. the iron rod which allegedly used by the accused No.2. In such circumstance, mere recovery of M.O.2 at the instance of the accused No.2, cannot be treated as a material circumstance against the accused No.2. Hence we are of the considered view that, the learned Sessions Judge erred in convicting the accused No.2 for the charges levelled against him. Hence, the accused No.2 deserves to be acquitted from the charges levelled against him.
25. As discussed supra, the accused No.1 is the perpetrator of the crime, and we are in agreement with the conclusion arrived by the learned Sessions Judge that the accused No.1 is responsible for the homicidal death of the deceased.
26. On careful perusal of the evidence discussed supra, admittedly, the incident committed is in front of the house of the deceased and P.W.1 on 21.04.2017 while the accused proceeding in front of the house of P.W.1, the P.W.1 and deceased themselves enquired the accused in
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 respect of the previous day incident pertaining to the use of bathroom by P.W.5. Thereafter, a sudden quarrel said to have been occurred and all of a sudden accused No.1 assaulted the deceased with the sickle. The accused No.1 had given a single blow to the deceased. Though, the assault initially landed on the right hand of the deceased subsequently caused injury on the abdomen of the deceased. The incident was caused in the morning on 21.04.2017 at about 8.30 a.m and thereafter the injured was shifted to the Hospital and got operated on 21.04.2017 and he succumbed on 23.04.2017 i.e. after three days. The motive put forth by the prosecution in this case that the incident caused in respect of usage of the bathroom by P.W.5 in the house of P.W.7. Hence, there is no such previous ill-will and premeditation on the part of the accused No.1 to cause the death of the deceased is forthcoming from the records. The Hon'ble Apex Court in the case of Pulicharana @ Nagaraj Reddy Vs. State of Andra Pradesh., reported in (2006) 11 SCC 444, held by referring the case of Bagdadiram
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 reported in (2004) 4 SCC 302 held that, if there was an altercation between two groups when tempers were running high in the heat of passion upon sudden quarrel without any premeditation, the accused assaulted the unarmed deceased without repeat blow, in the circumstance it was held that, he did not intend to cause the death of the deceased and case falls on the exception I to Section 300 of Indian Penal Code.
27. The Hon'ble Apex court in the case of Dauvaram Nirmalkar v. State of Chhattisgarh, reported in 2022 SCC OnLine SC 955 by following the view expressed in K.M. Nanavati v. State of Maharashtra reported in 1962 SCR Supl. (1) 567 observed in paragraph Nos. 9 to 17 as under -
"9. Exception 1 differs from Exception 4 of Section 300 of the IPC. Exception 1 applies when due to grave and sudden provocation, the offender, deprived of the power of self-control, causes the death of the person who gave the provocation. Exception 1 also applies when the offender, on account of loss of self-control due to grave and sudden provocation, causes the death of any other person by mistake or accident. Exception 4 applies when an offence is committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel and the offender commits culpable homicide without having taken undue advantage of acting in a cruel and unusual manner. The Explanation to Exception
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 4 states that in such cases it is immaterial which party gives the provocation or commits the first assault.
10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra, this Court has held that the conditions which have to be satisfied for the exception to be invoked are (a) the deceased must have given provocation to the accused; (b) the provocation must be grave; (c) the provocation must be sudden; (d) the offender, by the reason of the said provocation, should have been deprived of his power of self-control; (e) the offender should have killed the deceased during the continuance of the deprivation of power of self-control; and (f) the offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident. For determining whether or not the provocation had temporarily deprived the offender from the power of self- control, the test to be applied is that of a reasonable man and not that of an unusually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. K.M. Nanavati (supra) succinctly observes:
"84. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision : it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 the accused regained his self-control and killed Ahuja deliberately.
85. The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Penal Code, 1860. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
11. K.M. Nanavati (supra), has held that the mental background created by the previous act(s) of the deceased may be taken into consideration in ascertaining whether the subsequent act caused sudden and grave provocation for committing the offence. There can be sustained and continuous provocations over a period of time, albeit in such cases Exception 1 to Section 300 of the IPC applies when preceding the offence, there was a last act, word or gesture in the series of incidents comprising of that conduct, amounting to sudden provocation sufficient for reactive loss of self- control. K.M. Nanavati (supra) quotes the definition of 'provocation' given by Goddard, C.J.; in R. v. Duffy, as:
"...some act or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self- control, rendering the accused so subject to passion as to make him or her for the moment not master of his own mind...[I]ndeed, circumstances
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person had the time to think, to reflect, and that would negative a sudden temporary loss of self-control which is of the essence of provocation...".
12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation. The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self-control. The second part emphasises that the offender's reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim's abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 conduct, which would satisfy the requirement of sudden or immediate provocation.
13. Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused's reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. This has been aptly summarised by Ashworth in the following words:
"[T]he significance of the deceased's final act should be considered by reference to the previous relations between the parties, taking into account any previous incidents which add colour to the final act. This is not to argue that the basic distinction between sudden provoked killings and revenge killings should be blurred, for the lapse of time between the deceased's final act and the accused's retaliation should continue to tell against him. The point is that the significance of the deceased's final act and its effect upon the accused - and indeed the relation of the retaliation to that act - can be neither understood nor evaluated without reference to previous dealings between the parties."
14. Exception 1 to Section 300 recognizes that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation.
15. Following the view expressed in K.M. Nanavati (supra), this Court in Budhi Singh v. State of Himachal Pradesh observed that in the test for 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
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 reasonable prudence, if there was such grave and sudden provocation, as to reasonably conclude that a person placed in such circumstances can temporarily lose self-control and commit the offence in the proximity to the time of provocation. A significant observation in Budhi Singh (supra) is that the provocation may be an act or series of acts done by the deceased to the accused resulting in inflicting of the injury. The idea behind this exception is to exclude the acts of violence which are premeditated, and not to deny consideration of circumstances such as prior animosity between the deceased and the accused, arising as a result of incidents in the past and subsequently resulting in sudden and grave provocation. In support of the aforesaid proposition and to convert the conviction from Section 302 to Section 304 Part I of the IPC in Budhi Singh (supra), the Court also relied upon Rampal Singh v. State of Uttar Pradesh.
16. For clarity, it must be stated that the prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court. It is in this context we would refer to the case of the prosecution, which is that the deceased was addicted to alcohol and used to constantly torment, abuse and threaten the appellant. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. There was sudden loss of self-control on account of a 'slow burn' reaction followed by the final and immediate provocation. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, we hold that the acts of provocation on the basis of which the appellant caused the death of his brother, Dashrath Nirmalkar, were both sudden and grave and that there was loss of self- control.
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020
17. Applying the provocation exception, we would convert the conviction of the appellant from Section 302 to Part I of Section 304 of the IPC.
(Emphasis supplied by Us)
28. On perusal of the findings recorded hereinabove, if interpreted with the case on hand, there was no such intention or preparation on the part of the accused No.1 to do away the life of the deceased, and the entire incident committed in a spur of moment. Hence, we are of the considered view, the act of the accused No.1 also falls within the exception I to Section 300 of Indian Penal Code, which is punishable under Section 304 Part II of Indian Penal Code. Hence, applying the provocation exception we would convert the conviction of accused No.1 i.e. appellant No.1 from Section 302 to Part II of Section 304 of Indian Penal Code.
29. On the question of sentence, we have been informed that the appellant has already suffered incarceration for over 06 years 09 months as he has been in custody since 21.04.2017. In the aforesaid circumstance, we are inclined to modify the sentence of
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020 imprisonment for a period of 07 years for the offence punishable under Section 304 Part II of Indian Penal Code.
Accordingly, we answer the point raised above i.e. point No.1 in the negative, point No.2 partly affirmative and proceed to pass the following :-
ORDER
(i) The appeal is allowed in part.
(ii) The conviction and order of sentence passed in S.C.No.220/2017 dated 08.05.2019 by the II Additional Sessions Judge, Belagavi, is set aside against the accused No.2.
(iii) The accused No.2/appellant No.2 is acquitted for the charges leveled against him for the offences punishable under Sections 302, 447, 504 read with Section 34 of IPC.
(iv) The appeal filed by the accused No.1/appellant No.1 is allowed in part.
(v) The conviction and order of sentence imposed in S.C.No.220/2017 dated 08.05.2019 by the II Additional Sessions Judge, Belagavi against accused No.1 is modified to Section 304(II) instead of Section 302 of Indian Penal Code.
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NC: 2024:KHC-D:1095-DB CRL.A No. 100033 of 2020
(vi) The accused No.1/appellant No.1 is convicted for the offense punishable under Section 304(II) of IPC and he is sentenced to undergo imprisonment for a period of 7 years and also he shall pay a fine of Rs.25,000/-, in default of payment of fine, he shall further undergo simple imprisonment for two months.
(vii) As far as the conviction for the offence punishable under Sections 447, 504 of Indian Penal Code is kept intact in respect of accused No.1/appellant No.1.
(viii) The bail bond executed by the accused No.2 stands canceled. The fine amount if any paid by the accused No.2 ordered to be refunded to him on proper identification.
(ix) All the sentences imposed to accused No.1/appellant No.1 shall run concurrently.
(x) The accused No.1 is entitled for set off under Section 428 of Cr.P.C.
Sd/-
JUDGE Sd/-
JUDGE SVH LIST NO.: 1 SL NO.: 2