Karnataka High Court
Mr Rajesh vs State Of Karnataka on 23 May, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 134 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
CRIMINAL APPEAL NO.134 OF 2023
BETWEEN:
MR. RAJESH
S/O. VENKATARAMAPPA,
AGED ABOUT 39 YEARS,
R/AT BOMMANAHALLI VILLAGE,
DODDABELAVANGALA HOBLI,
DODDABALLAPURA TALUK,
BENGALURU RURAL - 561 204. ... APPELLANT
(BY SRI HANUMANTHARAYA C.H. ALONG WITH MS. ABHINAYA K.
AND SRI K.V. MANOJ, ADVOCATES)
AND:
STATE OF KARNATAKA
BY DODDABELAVANGALA POLICE STATION,
BENGALURU RURAL DISTRICT,
Digitally signed by REPRESENTED BY
MAHALAKSHMI B M
Location: HIGH
STATE PUBLIC PROSECUTOR,
COURT OF HIGH COURT BUILDINGS,
KARNATAKA BANGALORE - 560 001. ... RESPONDENT
(BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 07.01.2023 AND ORDER OF SENTENCE DATED
09.01.2023, PASSED BY THE IV ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL DISTRICT AT
DODDABALLAPURA IN S.C.NO.10021/2018, CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302, 203, 201 OF
IPC.
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CRL.A No. 134 of 2023
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
B.VEERAPPA J., DELIVERED THE FOLLOWING:-
JUDGMENT
The accused, who is none other than the husband of the deceased has filed the present appeal against the impugned judgment of conviction dated 07.01.2023 and order of sentence dated 09.01.2023 made in S.C. No.10021/2018 on the file of the IV Additional District and Sessions Judge, Doddaballapura, Bangalore Rural District, sentencing the accused to undergo imprisonment for life with fine of Rs.25,000/- and in default, further to undergo imprisonment for a period of two years for the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as 'IPC' for short), to undergo imprisonment for a period of three years with fine of Rs.10,000/- and in default, further to undergo imprisonment for a period of one year for the offence punishable under Section 201 of IPC and to undergo imprisonment for a period of two years with fine of Rs.10,000/- and in default, to undergo imprisonment for -3- CRL.A No. 134 of 2023 further period of one year for the offence punishable under Section 203 of IPC.
2. It is the case of the prosecution on the basis of the complaint-Ex.P.1 made by P.W.1 that on 21.02.2018 at about 8.00 a.m. one Mr. Rajanna appeared before the Station House Officer, Doddabelavangala police station stating that he and accused are from the same village and are friends. The accused was married to one Lakshmi (deceased) of Tapasihalli and out of their wedlock, a female child was born namely Chinmayi (now aged about 12 years). On 09.02.2018, the accused came near the house of P.W.1 and told him that his wife was missing from morning and on the same day, the accused lodged a missing complaint as per Ex.P.32. Thereafter, the police were searching for the deceased Lakshmi. On 21.02.2018, when P.W.1 had gone to milk diary on his work, the accused met him at 6.00 a.m. and took him near the Government School in their village and told him that his wife was not missing, he had only murdered her. Being -4- CRL.A No. 134 of 2023 scared of confessing the same before the police, he requested P.W.1 to inform the police about the same. On being questioned about the murder by P.W.1, the accused said to him that on 09.02.2018, his wife (deceased), who was sleeping beside him, left the house in the wee hours at 4.00 a.m. Being suspicious about the same, the accused followed her and found her in the company of another man. On seeing his wife in the company of another man in the ungodly hours in the outskirts of the village, the accused lost his temper and not knowing what he was doing, he took the veil of the deceased, strangulated her, covered the body with twigs and returned home. As the police were intensely searching for the deceased, the appellant was dawned with fear and hence, on the following day, he cut the body of the deceased into pieces and buried the same near Gundasandra lake. But being regretful of his act, he confessed his guilt before P.W.1 and requested him to inform the police of the same. Accordingly, P.W.1 lodged a complaint before the jurisdictional police. Based on the -5- CRL.A No. 134 of 2023 complaint, the jurisdictional police registered a case in Crime No.51/2018 for the offence punishable under the provisions of Sections 302, 201 and 203 of IPC.
3. Since the offence was exclusively triable by the Sessions Court, the jurisdictional committal Court referred the matter to Principal District and Sessions Court, Bengaluru Rural District in SC No.10021/2018.
4. After committal of the matter, the learned Sessions Judge secured the presence of the accused, framed the charge, read over the charge to the accused in the language known to him, who pleaded not guilty and claimed to be tried.
5. In order to prove the case of the prosecution, the prosecution examined 10 witnesses as P.Ws.1 to 10, marked the documents at Exs.P.1 to P.78. On behalf of the accused, marked the documents at Exs.D1. to D.13 and also marked Exs.C.1 and C.2-FSL reports and Material Objects at M.Os.1 to 13. After completion of the evidence -6- CRL.A No. 134 of 2023 of the prosecution witnesses, the statement of the accused as contemplated under the provisions of Section 313 of the Code of Criminal Procedure was recorded.
6. Based on the aforesaid pleadings, the learned Sessions Judge framed three points for consideration. Considering both the oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution proved beyond all reasonable doubt that when the deceased filed a maintenance case in C.Mis No.506/2015 and C.C. No.528/2013, the accused was forced to settle the matter for Rs.5.00 lakhs and thereby, she agreed to withdraw the case. Thereafter, the accused called his wife to his house on 08.02.2018 and when they were sleeping together, the deceased received a phone call from P.W.3 asking for the welfare of the deceased. At about 4.00 a.m. on 09.02.2018 she left the place of the accused and on suspicion, the accused followed his wife, found his wife in another man's company and on seeing them together in that rage, lost his self control, murdered -7- CRL.A No. 134 of 2023 his wife with the help of veil. Thereby, committed the offence under Section 302 of IPC. Further, recorded a finding that in spite of murder, he has filed a missing complaint before the jurisdictional police and accordingly, a false case in Crime No.39/2018 came to be registered. Thereby, he committed the offence under Section 203 of IPC and further recorded a finding that in order to screen the evidence, the accused cut the dead body into pieces and buried the pieces. Thereby, he committed the offence under Section 201 of IPC. Accordingly, the learned Sessions Judge by impugned judgment of conviction and order of sentence, convicted the accused for the aforesaid offences. Hence the present appeal is filed by the accused/appellant.
7. We have heard the learned counsel for the parties to the lis.
8. Sri. C.H. Hanumantharaya, learned counsel for the appellant/accused would contend with vehemence that the impugned judgment of conviction and order of -8- CRL.A No. 134 of 2023 sentence, sentencing the accused for the offence punishable under the provisions of Sections 302, 201 and 203 of IPC is erroneous and contrary to material on record and cannot be sustainable in law and liable to be set- aside. He further contended that P.W.1 is the friend of the accused, who is also the complainant and circumstantial witness before whom the appellant has made the extra judicial statement regarding the incident. Thereby, the evidence of P.W.1 is crucial in considering the entire case, as the entire case rests on the evidence of P.W.1. P.W.1 in his examination-in-chief deposed how the accused confessed to him about the incident and in the cross- examination, he has admitted that the parents of the deceased were looking for their missing daughter and further that they had held out a threat to the accused. He further admitted about his participation in the panchayath, in which the deceased had expressed her disinterest to live with the accused and had attempted to commit suicide and further, she had given her consent for the accused to marry again. The said consent letter was marked as -9- CRL.A No. 134 of 2023 Ex.D.1. In view of the admission, it is evident that the deceased was not interested to continue her matrimonial life with the accused. She had filed false cases against the appellant and his family members and had an illicit relationship with P.W.3 with whom the accused saw the deceased on the day of the incident. The said act of the deceased is sufficient to show that the incident took place under the circumstances that enraged the accused.
9. Learned counsel further contended that P.W.2- father of the deceased deposed about the motive of the accused behind the murder but in the cross-examination, the defence has shaken the said version by eliciting material admissions with respect to the character and conduct of the deceased. The material omissions have also been proved through the investigating officer with regard to demand for dowry and maintenance that had to be given to the deceased, which is said to have been the motive behind the murder. P.W.2 in the cross-examination admitted that he and his family members had threatened
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CRL.A No. 134 of 2023the accused saying they would kill him. The lump of omissions and admissions taken by the defence destroys the whole theory given by the prosecution. The said aspect of the matter has not been considered by the learned Sessions Judge.
10. Learned counsel would further contend that P.W.3 is the paramour of the deceased, who has turned partly hostile to the case of the prosecution. In his examination-in-chief, he admits having befriended the deceased and having been in touch with her. Even on the fateful day of the incident, he admits of having made 21 calls and having sent 16 text messages to the deceased. He has given statement under Section 161 of Cr.P.C. before the Investigating Officer, which is marked as Ex.P.4. Though he denies having stated before the Investigating Officer that he used to lend money to the deceased and that on the day of the incident, he also called the deceased to the outskirts of the village to a farm land in the wee hours, the same has been marked as
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CRL.A No. 134 of 2023defence exhibits and proved through the Investigating Officer. Thereby, this evidence clearly establishes defence story that the appellant, having seen the deceased and P.W.3 together on the outskirts of the village during ungodly hours and in a spur of the moment, committed the murder of the deceased under sudden provocation and not by intention. Thereby, it is not the extreme case to convict the accused under Section 302 of IPC, which falls under Exception I of Section 300.
11. Learned counsel for the appellant/accused, further contended that the marriage between accused and deceased was based on the bedrock of mutual trust. The same got shattered when the accused saw his wife/deceased in the company of P.W.3 in the wee hours of 09.02.2018 in the fields situated at the outskirts of the village. When the accused found his wife in the company of a male stranger, he lost all his self-control and temperament, developed temporary insanity, which instigated him to do way with the life of his wife, without
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CRL.A No. 134 of 2023any premeditation. The said aspect has not been considered by the learned Sessions Judge. Learned counsel further contended that, when the accused followed his wife in the wee hours on the date of the incident with a suspicion, had not carried any weapon with him, which clearly indicates that he had no intention to eliminate his wife. The said material has not been considered by the learned Sessions Judge. Therefore, he sought to allow the Criminal Appeal.
12. In support of his contentions, learned counsel, sought to rely on the dictum of the Hon'ble Supreme Court in the case of State of Punjab vs. Jagtar Singh and others reported in (2011)14 SCC 678.
13. Per contra, Sri Vijaykumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment of conviction and order of sentence, contended that, it is an undisputed fact that both accused and deceased are husband and wife. Though deceased was not interested to marry the accused, on being forced
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CRL.A No. 134 of 2023by her parents, she married the accused and out of the wed lock, a female child was born. As the accused was not looking after the deceased properly, she went to her native place and filed a miscellaneous case for maintenance, which came to be allowed. In order to avoid the payment of maintenance, accused requested the deceased to join the matrimonial home. Accordingly, she went back to the matrimonial home. Merely because the deceased used to talk with P.W.3 over phone and used to send messages, accused should not have killed her.
14. Learned Additional SPP further contended that, after killing his wife, accused along with P.W.1 went to the jurisdictional police station and lodged a false missing complaint. This attitude of the accused clearly depicts his ill character. After coming to know of the missing complaint lodged by accused, since the father of the deceased threatened the accused that if his daughter is not found, he is not going to spare him, accused got frightened, went back and cut the body of the deceased
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CRL.A No. 134 of 2023into pieces and buried them. The accused has committed a serious offence and thereby, learned Sessions Judge is justified in convicting the accused for the offence punishable under Section 302 of the Indian Penal Code. He further contended that even assuming that the accused lost self control and committed the offence, it cannot be lost sight that deceased had given consent to the accused as per Ex.D.1 to get into second marriage. Instead of taking law into his hands, accused could have obtained a decree of divorce and could have married another girl. But, accused killed his own wife. Therefore, sought to dismiss the Criminal Appeal.
15. In view of the aforesaid rival contentions urged by learned counsel for the parties, the points that would arise for our consideration are:
(i) Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence, convicting him for the offence punishable under Section 302 of the Indian Penal Code and sentencing to undergo
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imprisonment for life with fine of Rs.25,000/- with default clause?
(ii) Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence, convicting him for the offence punishable under Section 201 of the Indian Penal Code and sentencing him to undergo imprisonment for a period of three years with fine of Rs.10,000/-, with default clause and, convicting for the offence punishable under Section 203 of the Indian Penal Code and sentencing to undergo imprisonment for a period of two years with fine of Rs.10,000/-, with default clause, in the peculiar facts and circumstances of the present case?
16. We have given our thoughtful consideration to the arguments advanced by learned counsel for the parties and perused the entire material on record, including original records, carefully.
17. This Court being the Appellate Court, in order to re-appreciate the entire oral and documentary evidence on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon.
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CRL.A No. 134 of 2023
(i) P.W.1-Rajanna, friend of the accused, reiterating the averments made in the complaint-Ex.P.1, in his examination-in-chief, deposed regarding how the accused confessed before him about the incident and the circumstance which led him to commit the act. He further deposed that the accused requested him to lodge a complaint against him (accused) in respect of the crime. He admitted that the parents of the deceased were looking for their missing daughter and that they had held out death threats to the accused. Further, he admitted about his participation in the panchayath in which the deceased had expressed her disinterest to live with the accused and that the deceased had given her consent to the accused to marry again, as per Ex.D.1. He supported the case of prosecution.
(ii) P.W.2-Muniraju, is the father of the deceased.
He is an hearsay witness. He deposed regarding the motive behind the offence. He admitted that he and his family members had threatened the accused saying that they would kill him. He supported the case of prosecution.
(iii) P.W.3-B.H.Nagaraju, paramour of the deceased, in his examination-in-chief has admitted that
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CRL.A No. 134 of 2023deceased used to call him over phone and send messages. He has also admitted that on the date of the incident also, they were chatting till 1.30 am. But he denied the suggestion that he met the deceased in the wee hours on the day of incident. He admits that on the day of incident, he made calls and sent messages. The witness turned hostile and not supported the case of prosecution.
(iv) P.W.4-Hanumantharaju-Head Constable, deposed that he took the FIR and complaint to the jurisdictional Magistrate, and supported the case of prosecution.
(v) P.W.5-Dr.Manjuprakash, deposed that he conducted the post-mortem on the dead body of the deceased and issued the report as per Ex.P.25 and supported the case of prosecution.
(vi) P.W.6-Mahesh Babu- Assistant Commissioner, authorized and overseen exhumation of the dead body parts of the deceased and supported the case of prosecution.
(vii) P.W.7-Siddaraju, Police Inspector, deposed that the case was filed against the appellant and his family members and were charge sheeted for the offence punishable under Section 498A of
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CRL.A No. 134 of 2023the Indian Penal Code and not under the Dowry Prohibition Act. He filed the charge sheet attributing the allegation of dowry demand from the appellant and the murder was committed to evade the maintenance amount he had to pay to his wife and supported the case of prosecution.
(viii) P.W.8-Vijayakumar and P.W.9-Ramamurthy, is panch witness to exhumation of dead body parts and supported the case of prosecution.
(ix) P.W.10-Aruna, is witness to seizure mahazar of
ornaments of deceased, sanike and kavu,
M.Os.1 to 3 and supported the case of
prosecution.
18. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge by the impugned judgment, convicted and sentenced the appellant/accused for the offences punishable under Sections 302, 201 and 203 of the Indian Penal Code.
19. It is not in dispute that accused and deceased are husband and wife and out of the wed lock, a girl child was born, now aged about 12 years. It is the case of the prosecution that due to some differences, the deceased
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CRL.A No. 134 of 2023had left the matrimonial home and filed a miscellaneous case claiming maintenance. The Trial Court passed an order directing the accused to pay maintenance to the deceased. When things stood thus, in view of the conciliation made by elders, the deceased again joined the matrimonial home. The deceased also gave written consent as per Ex.D.1 dated 25.09.2010 to the accused to get married with some other girl. Thereafter, accused got married for the second time and is having a son and daughter through his second wife. The deceased had joined the accused and accused was in the process of constructing a new house for deceased.
20. In the meanwhile, P.W.3 who was acquainted with the deceased used to make calls and send messages to her. They used to chat over mobile phone. On the date of the incident, accused and deceased were sleeping at their house. Deceased was sending and receiving messages from P.W.3 till 2.00 am. Around 4.00 am, she woke up and walked out of the house. The accused got
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CRL.A No. 134 of 2023suspicion and when followed her, found his wife (deceased) in the company of P.W.3 in the out skirts of the village inside a farm land in a compromising position. On seeing the accused, P.W.3 ran away from the spot. The accused, who lost his temper, not knowing what he was doing, strangulated the neck of the deceased with the veil she was wearing. The accused has admitted this fact in the statement recorded under Section 313 of the Code of Criminal Procedure. It is also the case of prosecution that, after killing his wife, on 09.02.2018, the accused had lodged a complaint with the police as per Ex.P.32 stating that his wife is missing. Later, on the confession made by the accused before P.W.1, he lodged a complaint to the police as per Ex.P.1. Based on the aforesaid evidence, the learned Sessions Judge proceeded to convict the accused and convicted for the offence punishable under Section 302 of the Indian Penal Code.
21. The fact remains that the accused and deceased are husband and wife and are having a girl child and
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CRL.A No. 134 of 2023accused was taking pains to construct a new house for the deceased, and some how, the deceased developed intimacy with deceased. On the unfortunate day, P.W.3 had made 21 calls and had sent 16 messages to the deceased in a span of eight hours. Admittedly, the deceased who was sleeping beside accused, woke up around 4.00 am and went out of the house. The accused got suspicion and when followed, found her in a compromising position with a stranger in the outskirts of the village. Upon seeing the same with his eyes, accused lost his temper, self control and the unfortunate incident occurred. The said aspect has not been considered by the learned Sessions Judge and erroneously convicted the accused for the offence punishable under Section 302 of the Indian Penal Code. In the present case, the deceased being mother of a girl child through her husband-accused, had developed illegal intimacy with P.W.3 and accused who saw his wife in compromising position with P.W.3, naturally no person will tolerate his spouse being in such intimacy and thus, lost his self control and thus, the case
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CRL.A No. 134 of 2023clearly attracts Exception I Section 300 of the Indian Penal Code, which reads as under:
"Section 300- Murder:
xxx xxx xxx Exception 1- When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
22. A careful perusal of the aforesaid provision makes it clear that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
23. In the present case, as already stated supra, when accused saw his wife in a compromising position with P.W.3, felt hurt, was deprived of his self control and
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CRL.A No. 134 of 2023the unfortunate incident occurred. It is a clear case of culpable homicide not amounting to murder. Therefore, conviction of accused for the offence punishable under Section 302 of the Indian Penal Code cannot be sustained and it has to be altered into one under Section 304 Part I of the Indian Penal Code. The said aspect has not been considered by the learned Sessions Judge.
24. The material on record clearly depicts that P.W.1 who is the complainant and also a friend of the accused, in his evidence, reiterating the averments made in the complaint, has deposed about the confession made before him by the accused. In view of the evidence of P.W.5-Dr.Manjuprakash, the homicidal death of deceased is not in dispute. But, under what circumstances the homicidal death took place is the matter to be looked into. P.W.3, paramour of the deceased, in his evidence, has not disputed the fact that on the instructions of the accused and his parents, he was constructing a new house for the deceased. He has admitted that deceased used to help
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CRL.A No. 134 of 2023him in the construction work. He further admitted in the cross-examination that on the day of the incident he had made 21 phone calls to the deceased and had sent 16 messages. He further stated that deceased went back to village after quarrel with accused and accused used to pay her money whenever demanded for her expenses. The statement made before the police, Ex.P.4 relevant portion marked as Exs.D.4,6, 7, 8 and 9, he has admitted that he was in the company of the deceased on the unfortunate day at wee hours. Thereby, when the accused saw his wife in compromising position with P.W.3, he lost self control and unfortunate incident happened. The learned Sessions Judge erroneously proceeded to convict the accused for the offence punishable under Section 302 of the Indian Penal Code.
25. In identical circumstances, the Hon'ble Supreme Court, in the case of State of Punjab v. Jagtar Singh reported in (2011) 14 SCC 678 at paragraphs 11 and 12, held as under:
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"11. Be that as it may, we do not find any error in the approach of the High Court in disbelieving the evidence of Santa Singh (PW 5). That would only give further credence to the theory that Gurnam Singh must have sneaked on the night of 15-5- 1993 in the house of the accused persons and he must have had sexual intercourse with Paramjit Kaur which might have been seen by the accused persons and in the fit of rage, they killed both of them on the spot. We do not find any reason to differ with the conclusion arrived at by the High Court that the offence was committed due to grave and sudden provocation and would fall under the First Exception to Section 300 IPC and would amount to culpable homicide not amounting to murder. Thus, the offence would be covered under Section 304 Part I read with Section 34 IPC.
12. Mr. Kuldip Singh, then strenuously urged that the accused persons have been awarded only five years of rigorous imprisonment and it is ridiculously less. He pointed out that even according to the High Court, this would amount to honour killing which cannot be taken lightly. The argument is undoubtedly correct. However, considering that the incident in question took place in the year 1993 and thus 18 years have passed. Further, considering the fact that the accused persons had not even crossed
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the age of 25 years at the time when the incident took place and further considering the fact that they have already undergone rigorous imprisonment for five years and have come out of jail, we are not inclined to interfere with the quantum of sentence and would choose to dismiss this appeal. We order accordingly."
26. The Hon'ble Supreme Court, while considering the provisions of Section 300 Exception I of the Indian Penal Code, in the case of State of U.P. v. Lakhmi, reported in (1998) 4 SCC 336 at paragraphs 17, 18, 19, 20, 21, 22 and 23, held as under:
"17. The law is that burden of proving such an exception is on the accused. But the mere fact that the accused adopted another alternative defence during his examination under Section 313 of the IPC without referring to Exception I of Section 300 of IPC is not enough to deny him of the benefit of the exception, if the Court can cull out materials from evidence pointing to the existence of circumstances leading to that exception. It is not the law that failure to set up such a defence would foreclose the right to rely on the exception once and for all. It is axiomatic that burden on the
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accused to prove any fact can be discharged either through defence evidence or even through prosecution evidence by showing a preponderance of probability.
18. In the above context, we deem it useful to ascertain what possibly would have prompted the accused to kill his wife. The prosecution case as noted above, is that the accused was not well- disposed to his wife as she was always speaking against his drinking habits. We are inclined to think that, while considering the manner in which he had suddenly pounced upon his young wife who bore two children to him and smashed her head during the early hours, he would have had some other strong cause which probably would have taken place within a short time prior to the murder. Certain broad features looming large in evidence help us in that line of thinking.
19. The defence counsel put a definite suggestion to PW 2 (Ramey), during cross-examination, that the incident was preceded by a liaison between Omvati, the deceased, and Ramey (PW 2). The suggestion was, of course, rebuffed by the witness. One of the defence witnesses (DW 1) was examined to say that the accused was working in his field till 4 a.m. on the night in question. As that version was not inconsistent with the prosecution story, the
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aforesaid evidence of DW 1 was not rejected by the trial court. If that version is correct, he would have gone back to his bedroom some time thereafter. In this connection, we refer to the evidence of PW 3 who said even during chief examination itself that when he saw the accused standing near the bedside of his wife, the witness asked him what did he do, to which he snorted out that he would not spare Ramey (PW 2) also. That evidence of PW 3 (Bhondia) was binding on the prosecution which has a very significant impact on the plea based on the First Exception to Section 300. It indicates that the motive for the accused to murder his wife had some nexus with Ramey (PW 2). According to PW 4 (Raje), he rushed to the house of the accused and saw PW 2 scampering away and then saw the accused inside the bedroom muttering that Ramey had done foul acts with his wife and that he would murder him. Though the Public Prosecutor challenged that part of the witness's testimony, he did not treat the witness as hostile for the prosecution.
20. The above features positively suggest that the accused would have seen something lascivious between his wife and PW 2 just when he entered the house from the field.
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CRL.A No. 134 of 2023
21. There can be little doubt that if the accused had witnessed any such scene, his mind would have become suddenly deranged. It is not necessary that a husband should have been hot-tempered or hypersensitive to lose his equanimity by witnessing such scenes. Any ordinary man with normal senses of even sang-froid would be outraged at such a scene.
22. We are, therefore, inclined to afford to the respondent-accused benefit of Exception I to Section 300 IPC. As the corollary, we find the respondent guilty only under Section 304 (Part I) IPC.
23. In the result, we allow this appeal and set aside the judgment of the High Court, but in alteration of the conviction passed by the Sessions Court, we convict him under Section 304 (Part I) IPC. We sentence him to undergo rigorous imprisonment for a period of six years. We direct the Sessions Judge, Meerut to take steps to put the accused in jail for undergoing the remaining portion of the imprisonment term in accordance with the sentence imposed on him now."
27. In the latest Judgment, the Hon'ble Supreme Court, in the case of Dauvaram Nirmalkar vs. State of
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CRL.A No. 134 of 2023Chhattisgarh reported in 2022 SCC Online 955 at paragraphs 13, 14 and 15, held as under:
"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
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neither understood nor evaluated without reference to previous dealings between the parties."
14. Exception 1 to Section 300 recognises that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation.
15. Following the view expressed in K.M. Nanavati (supra), this Court in Budhi Singh v. State of Himachal Pradesh observed that in the test for application of Exception 1 to Section 300 of the IPC, the primary obligation of the court is to examine the circumstances from the point of view of a person of reasonable prudence, if there was such grave and sudden provocation, as to reasonably conclude that a person placed in such circumstances can temporarily lose self-control and commit the offence in the proximity to the time of provocation. A significant observation in Budhi
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CRL.A No. 134 of 2023Singh (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."
28. On re-appreciation of the oral and documentary evidence on record and taking into consideration the peculiar facts and circumstances of the present case, we are of the considered opinion that the learned Sessions Judge is not justified in convicting the accused with imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code and the same has to be modified and altered into one under Section 304 Part I.
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29. For the reasons stated above, the first point raised for consideration in the present Criminal Appeal is answered partly in the affirmative holding that the accused has made out a case to interfere with the impugned judgment of conviction convicting him for the offence punishable under Section 302 of the Indian Penal Code and sentencing to undergo imprisonment for life and the same has to be altered into one under Section 304 Part I of the Indian Penal Code sentencing to undergo imprisonment for a period of seven years with fine of Rs.3,00,000/-, in default, to undergo further imprisonment for a period of two years. After the incident, the accused cut the dead body into pieces and buried them and filed a false missing complaint with the jurisdictional police. Accordingly, the second point is answered in the negative holding that the accused has not made out a case to interfere with the impugned judgment convicting the accused for the offences punishable under Sections 203 and 201 of the Indian Penal Code.
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30. In view of the above, we pass the following:
ORDER
(i) Criminal Appeal No.134/2023 is allowed in part.
(ii) The impugned judgment of conviction dated 07.01.2023 and order of sentence dated 09.01.2023 passed in S.C. No.10021 of 2018 on the file of the IV Additional District and Sessions Judge, Doddaballapura, Bengaluru Rural District, convicting the appellant/ accused for the offence punishable under Section 302 of the Indian penal Code and sentencing him to undergo imprisonment for life and to pay fine of Rs.25,000/-, in default, to undergo imprisonment for a period of two years, is hereby modified.
(iii) The appellant/accused is hereby convicted for the offence punishable under Section 304 Part I of the Indian Penal Code and is
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CRL.A No. 134 of 2023sentenced to undergo rigorous imprisonment for a period of seven (07) years and to pay fine of Rs.3,00,000/-(Rupees three lakhs only), in default, to undergo simple imprisonment for a period of two years.
(iv) The impugned judgment of conviction and order of sentence, convicting the accused for the offence punishable under Section 201 of the Indian Penal Code and sentencing him to undergo imprisonment for a period of three years and to pay fine of Rs.10,000/-, in default, to undergo imprisonment for a period of one year and, convicting for the offence punishable under Section 203 of the Indian Penal Code and sentencing him to undergo imprisonment for a period of two years and to pay fine of Rs.10,000/-, in default, to undergo imprisonment for a period of one year, is hereby confirmed.
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(v) All the sentences shall run concurrently.
(vi) The appellant/accused is entitled to the benefit of set-off under Section 428 of the Code of Criminal Procedure.
(vii) Out of the fine amount of Rs.3,00,000/-, Rs.1,50,000/- is directed to be deposited in the name of Kum.Chinmayi, daughter of the accused through his first wife/deceased and remaining sum of Rs.1,50,000/- is directed to be deposited in the name of Kum Namratha, daughter of the accused through his second wife, in any nationalized bank, for a period of five years. Kum.Chinmayi and Kum.Namratha are entitled to receive the quarterly interest accrued on the fixed deposit, for their educational purpose.
(ix) The assistance rendered by Sri C.H. Hanumantharaya, learned counsel for the
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CRL.A No. 134 of 2023appellant and Sri Vijaykumar Majage, learned Additional State Public Prosecutor, is appreciated and placed on record.
(xi) Office is directed to return the Trial Court records.
Sd/-
JUDGE Sd/-
JUDGE MBM-Paragraph Nos.1 to 10 kcm-Paragraph Nos.11 till end