Andhra Pradesh High Court - Amravati

Galaparthi Sanyasi, Vizianagaram Dt., vs The State Of Ap., Rep Pp., on 6 November, 2024

Author: K Suresh Reddy

Bench: K Suresh Reddy

 APHC010412662017
                    IN THE HIGH COURT OF ANDHRA PRADESH
                                  AT AMARAVATI                         [3486]
                           (Special Original Jurisdiction)

                WEDNESDAY, THE SIXTH DAY OF NOVEMBER
                   TWO THOUSAND AND TWENTY FOUR

                                    PRESENT

            THE HONOURABLE SRI JUSTICE K SURESH REDDY

         THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

                       CRIMINAL APPEAL NO: 372/2017

Between:

Galaparthi Sanyasi, Vizianagaram D
                                 District                       ...APELLANT

                                       AND

The State of A.P.,
              .P., Rep. by its P.P.                            ...RESPODENT

Counsel for the Appellant:
                   ellant:

   1. POLANKI ANAND SURYA

   2.

   3. LEGAL AID

Counsel for the Respondent:
                      dent:

   1. PUBLIC PROSECUTOR (AP)

The Court made the following:

JUDGMENT:

(Per Hon'ble Sri Justice K.Sreenivasa K. Reddy)

Sole accused in S.C.No.63 of 2015 on the file of the II Additional

Metropolitan Sessions Judge Judge-cum-IV IV Additional District & Sessions Ju Judge,

Visakhapatnam, is the appellant. The appellant was tried for the offence

punishable under Section 302 IPC. By its judgment dated 03.02.2017 in the

said Sessions Case, the learned II Additional Metropolitan Sessions Judge-

cum-IV Additional District & Sessions Judge, Visakhapatnam, convicted the

accused for the offence punishable under Section 302 IPC and sentenced him

to undergo Imprisonment for life, and further directed him to pay a fine of

Rs.2,000/- , in default of payment of fine, he was directed to suffer Simple

Imprisonment for a period of two months.

2. Sum and substance of the charge, as against the accused, is that on

19.12.2013, at about 17.00 hours, while the accused was lying on the way in a

drunken stage, the deceased questioned him as to why he was lying cross on

the path and in this connection, an altercation took place between the

deceased and the accused, and thereafter the accused stabbed the deceased

with knife on the left side of his stomach below the ribs, due to which the

deceased succumbed to the injuries.

3. The case of the prosecution, in brief, is as follows:

(a) PW.1 is the wife of the deceased, and PWs 2 to 4 are the brothers of

the deceased. The accused is habituated to drinking alcohol and used to stay

in Kithayyathota Village. On 19.12.2013 at about 5.00 P.M., the accused slept

on the pathway in a drunken state, near house of PW.2. The deceased, while

he was returning to his house after attending cultivation, observed that the

accused sleeping on path crossly. The deceased questioned the accused as

to why he slept on the path crossly. The accused revolted against the

deceased. An altercation took place between the deceased and the accused.

The accused got angry and stabbed the deceased with a knife on his

stomach. Thereafter, the accused left the place and the deceased fell down

on the path. Thereafter, PW.2 and others took the deceased to the hospital

on the next day at about 6.00 A.M. The deceased succumbed to the injuries

at about 7.00 A.M.

(b) On 20.12.2013 at about 20.00 hours, PW.13 - Sub-Inspector of

Police, on receipt of a report from PW.1, registered a case in Cr.No.72/2013 of

Ananthagiri Police Station for the offence punishable under Section 302 IPC.

Ex.P.9 is the original F.I.R.

Station, took up investigation from PW.13. He, along with staff, visited the

scene of offence situated at Kithayyathota, Ananthagiri Mandal,

Visakhapatnam District. He examined the scene of offence and prepared a

rough sketch. Ex.P.11 is the rough sketch. On the same day, PW.14

examined PWs 1 to 6 and others and recorded their statements, and also

seized MOs.1 and 2.

(d) PW.14 conducted inquest over the dead body of the deceased in the

presence of mediators. Ex.P.4 is the Inquest report.

(e) On 21.12.2013, PW.12 - Civil Assistant Surgeon, CHC, Araku

Valley, conducted Autopsy over the dead body of the deceased. Ex.P.8 is the

Postmortem certificate. According to the Doctor, the cause of death is

because of severe internal bleeding and perforation of small intestines due to

the deep laceration caused by stab injury.

(f) PW.14 - Circle Inspector of Police, took up further investigation and

on information, arrested the accused on 27.12.2013 at Chilakalagedda Forest

check post. PW.14 recorded the confessional statement of the accused.

PW.14 recovered M.Os.1 to 5 in pursuant to the confessional statement of the

accused. After receipt of relevant documents and completion of the

investigation, PW.14 filed charge sheet.

4. In support of its case, the prosecution examined PWs 1 to 14 and

marked exhibits P.1 to P.12, and seized M.O.s. 1 to 5.

5. When the accused was examined under Section 313 Cr.P.C., he denied

the incriminating evidence appearing against him.

6. The point that determines for consideration is as under:

Whether the conviction and sentence recorded by the learned Additional Sessions Judge is sustainable or not?

7. A perusal of the evidence on record shows that the alleged incident took

place pursuant to the altercation that had taken place between the accused

and the deceased. A sudden quarrel ensued between the accused and the

deceased on the fateful day, as the accused was in drunken condition and he

was lying on the foot path crossly. The deceased while going home,

questioned the accused as to why he was lying down on the foot path crossly.

In connection with that, there was an altercation between the accused and

deceased. In pursuant to the same, the accused took a knife and stabbed the

deceased by giving one blow below the ribs of the deceased.

(a) PWs 2 to 5 are the brothers of the deceased. Though PW.2 claims

that he is eye witness to the incident, he did not come forward to take the

deceased to the hospital immediately. PWs 3 to 5, who are related to the

deceased, are not eye witnesses to the incident and on hearing cries of the

deceased, they went to the scene of offence. It is their evidence that when

they enquired the deceased, he narrated about the incident to them. On the

next day at about 6.00 A.M., the said witnesses i.e., PWs 2 to 5 took the

deceased to the hospital. As per the prosecution case, the deceased died at

about 7.00 A.M. on the next day. On coming to know that the accused

stabbed the deceased, the immediate reaction of the blood relatives would be

to take the injured to the hospital for proper medical care. On the contrary, the

evidence shows that they waited till next day morning at 6.00 A.M. and took

the deceased to the hospital. The explanation offered by PWs 1 and 2 is that

their houses are situated on hills and hence they could not take the injured to

hospital immediately. It is elicited in cross examination of PW.2 that since it is

hilly area, there will be lot of fog and sun sets by 5.00 P.M. It is also elicited

that he took the deceased to his house after the incident. The deceased is

younger brother to PW.2 by courtesy. Presence of PW.2, at the relevant point

of time of the incident, who is residing adjacent to his house, is quite natural

and probable. He has no grouse or enmity against the accused to implicate

him falsely in a case of this nature. Though PW.2 was cross-examined at

length, nothing has been elicited to discredit his testimony. Hence, this court

has no hesitation to hold that PW.2 is a trustworthy witness and his evidence

can be placed in the category of 'wholly reliable'. Hence, the prosecution is

able to establish that the accused is the assailant of the deceased.

(b) Now, it has to be seen whether the act of the accused is murder or

culpable homicide not amounting to murder. Admittedly, an altercation

preceded the incident. It is not a preplanned attack. Accused had no

premeditation to cause death of the deceased. The accused was in a drunken

state at the time of the incident. However, it is a case of voluntary intoxication.

There is only one blow dealt by the accused on the deceased and the same

proved to be fatal, and the same has taken place in pursuance to the

altercation that has taken place between the accused and the deceased, this

Court is of the opinion that the said case would not come within the purview of

Section 302 IPC.

8. Learned counsel for the appellant placed reliance on the judgment of

the Apex Court in Dauvaram Nirmalkar v. State of Chhattisgarh1, in which

the Apex Court held as under:

"8. However, in our opinion, this case will fall under Exception 1 to Section 300 of the IPC. 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 position and in fact, has relied upon these facts to show motive.

2022 LiveLaw (SC) 650

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 4 states that in such cases it is immaterial which party gives the provocation or commits the first assault.

14. 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 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.

15. For clarity, it must be stated that the prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is 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."

9. On perusal of the entire evidence on record, this Court is of the opinion

that since there is an altercation between the accused and the deceased

preceding the incident, there was a sudden loss of self-control on the part of

the accused and in pursuant to the same, the accused had taken out a knife

and stabbed the deceased by giving one blow on the stomach of the

deceased. Thereafter, the accused ran away from the place. Therefore, this

Court has no hesitation in coming to a conclusion that the said blow is

because of the act of the provocation, on the basis of which the accused

caused the death of the deceased as he lost self-control in view of the fact

that he was drunk. In view of the aforesaid reasons, conviction under Section

302 IPC is altered to one under Section 304 Part-I IPC.

10. In the result, the Criminal Appeal is allowed in-part by setting aside the